Ewels v Leach

• Jurisdiction: South Africa
• Judge: De Villiers J
• Judgment Date: 02 August 1954
• Citation: 1954 (4) SA 62 (E)
• Hearing Date: 29 July 1954
• Court: Eastern Districts Local Division

D De Villiers, J.:

By written deed dated the 5th March, 1954, the respondent purported to sell to the applicant certain quitrent land situated in Kentani District together with the rights in the trading store which the respondent carries on on the land.

The land lies in a Scheduled Native Area and is subject to the E provisions of Act 27 of 1913.

The deed, clearly with the view of complying with the provisions of the Natives Land Act, 27 of 1913, contains inter alia the following clauses:

Clause 3.

F 'That this agreement of sale is entered into subject to the consent of the Governor-General to the transfer of the said Nquise trading site to the purchaser, and if such consent is refused this agreement shall be deemed to be null and void from its inception, and neither party shall have any recourse against the other in respect of any matter arising out of the agreement.'

Clause 6.

'That on the receipt by Henry Neethling, attorney-at-law, Kentani, of G the aforementioned Governor-General's consent, he shall fix the date for the coming into operation of this agreement at a date as nearly as may be arranged to the 30th June, 1954, regard being had to the completion of formalities necessary, and to the circumstances generally obtaining at the time of the receipt by him of such consent.'

Clause 8.

'That the parties reciprocally promise and agree to do or cause to be done, promptly and faithfully, all and whatsoever may be requisite to H secure the prompt, expeditious and punctual operation of this agreement, now and at all times hereafter, under obligation of their persons and property according to law.'

In order to obtain the Governor-General's approval the parties must inter alia complete and sign a statutory form of application known as 'Form N.A. 11.' This the applicant did on the 27th April, 1954.

De Villiers J

The respondent, however, refuses to complete and sign this form and refuses to comply with the provisions of clause 8 of the agreement, and has repudiated the agreement, contending that the agreement, being in contravention of the provisions of the Act is null and void and in no respect binding on him.

A The present application is for an order declaring the agreement valid and binding and for compelling the respondent to do everything necessary to obtain the Governor-General's approval or authorising the deputy sheriff to do so.

The relevant sections of Act 27 of 1913 are 1 (2), (4), and 5 (1). These B sections read as follows:

'1 (2) From and after the commencement of this Act, no person other...