Fairoaks Investment Holdings (Pty) Ltd and Another v Oliver and Others

• Jurisdiction: South Africa
• Court: Supreme Court of Appeal
• Judge: Streicher JA, Mthiyane JA, Ponnan JA, Hurt JA and Kgomo AJA
• Judgment Date: 28 March 2008
• Citation: 2008 (4) SA 302 (SCA)
• Hearing Date: 11 March 2008
• Docket Number: 268/07
• Counsel: SJ du Plessis SC (with P Sieberhagen) for the appellants. PMM Lane SC (with CJ McAslin) for the respondents.

Streicher JA: I

[1] In an action instituted by the appellants against the respondents in the Transvaal Provincial Division, the appellants claimed an order interdicting the first respondent from transferring a property described as the Remaining Extent of Portion 171 Wilgespruit 190 IQ (the property) J into the name of any person or entity other than the first or the second

Streicher JA

appellant and an order directing the first respondent to transfer the A property to the first appellant (the second appellant's nominee) alternatively the second appellant. The first respondent took various exceptions to the appellants' particulars of claim on the ground that they do not disclose a cause of action. The court a quo upheld the exceptions but granted leave to the appellants to appeal to this court. B

[2] In their particulars of claim the appellants alleged:

2.1

The second appellant and the first respondent, on 9 April 2002, concluded a written agreement of sale in terms of which the first respondent sold the property to the second appellant for a purchase price of R2 150 000. C

2.2

In terms of the agreement of sale they agreed

(a)

that the purchase price would be secured by a bank guarantee payable against registration of transfer;

(b)

that the agreement would be subject to the fulfilment of three suspensive conditions contained in clause 13 of the agreement and that should any suspensive condition not be timeously D fulfilled the entire agreement would automatically lapse and be of no force or effect.

2.3

The suspensive condition recorded in clause 13.2 of the agreement of sale required that the property be rezoned and that the approval by the relevant town planning authority of a site development plan for a residential development of at least fifteen housing units per hectare be obtained within twelve months of the date of signature E of the agreement.

2.4

The suspensive condition contained in clause 13.2 was not fulfilled within a period of twelve months from the date of signature of the agreement in consequence whereof the agreement lapsed.

2.5

The second appellant, represented by its attorney, on or about F 8 August 2003, in a letter to the first respondent's attorney (annexure B1 to the particulars of claim), offered to revive the lapsed agreement and, by way of a letter from her attorneys (annexure C1 to the particulars of claim), the first respondent, on or about 20 August 2003, accepted the offer.

[3] Paragraphs 11 to 16 of the particulars of claim read as follows: G

11

On or about 8 August 2003, the second plaintiff, represented by its attorneys Izak Minnie Inc, who acted on the second plaintiff's written authority, offered to revive the lapsed agreement of sale by addressing a letter bearing the said date to the first defendant's attorneys, Dykes van Heerden Inc. H

11.1

A copy of the said letter together with the undertaking therein referred to is annexed hereto marked B1.

11.2

A copy of the aforesaid written authorization of the second plaintiff's attorneys is annexed hereto marked B2.

12.

On or about 20 August 2003 the first defendant represented by her said attorneys, Dykes van Heerden Inc, who acted on her written I authority, accepted the aforementioned offer to revive the lapsed agreement of sale by way of a letter bearing the aforesaid date.

12.1

A copy of the said letter of acceptance is annexed hereto marked C1.

12.2

The aforesaid written authorization, properly construed, is comprised of clause 2.2 of annexure A hereto, a letter by J

Streicher JA

A Dykes van Heerden Inc. dated 18 July 2003 as well as the First Defendant's written response thereto dated 20 August 2003, true copies whereof are hereunto annexed marked C2 and C3.

13.

In the premises, the second plaintiff and the first defendant, represented as aforesaid, agreed in writing, by way of annexures B1 B and C1 hereto, on 20 August 2003, to revive the said lapsed agreement of sale.

14.1

It was an express term of the revived agreement of sale as constituted by annexures B1 and C1 hereto that clause 13.2 was thereby amended to the effect that compliance therewith was to occur upon or before transfer of the property into the name of the C Second Plaintiff or its nominee.

14.2

It was an implied term of the revived agreement of sale constituted by annexures B1 and C1 hereto, that such revived agreement further embodied all of the terms contained in annexure A, save for the aforesaid amendment of the provisions of clause 13.2.

14.3

The provisions of the amended clause 13.2 operated for the D benefit of the second plaintiff (or its nominee), whose nominee advised the First Defendant on 27 October 2004 in writing that it waived the benefit of such condition.

14.4

A true copy of the aforesaid document containing the waiver is hereunto annexed marked C4.

15.

Alternatively to paras 11 to 14 above:

15.1

E On or about 20 August 2003, the first defendant represented by her attorneys, Dykes van Heerden Inc, advised the second plaintiff orally and in writing that such attorneys were sending transfer documents to the second plaintiff in order to enable the first defendant to transfer the property in accordance with the provisions of the agreement of sale, annexure A F hereto.

15.2

On or about 20 August 2003, the first defendant prepared and produced copies of her identity document and an antenuptial contract for purposes of preparing documentation for the transfer of the immovable property in terms of the agreement of sale, annexure A hereto.

15.3

G On or about 21 July 2004, the first defendant, represented by her said attorneys, addressed a letter to the second plaintiff's attorneys, a copy whereof is annexed hereto marked D, in terms whereof the first defendant called upon the second plaintiff to produce guarantees in relation to the payment of the purchase price in terms of the agreement of sale, H annexure A hereto.

15.4

In conducting herself as set out above, the first defendant waived any right to rely on the failure of the suspensive conditions recorded in clause 13 of the agreement of sale, annexure A hereto.

16.

In the premises, the second plaintiff became entitled, by no later I than 20 August 2004, to enforce the provisions of the agreement of sale, annexure A hereto, alternatively, the revived agreement embodied in annexures B1 and C1 hereto, against the first defendant.

[4] The first respondent took a number of exceptions to the particulars J of claim. The third of these exceptions is to the effect that insofar as the

Streicher JA

appellants' claim is based on paras 11 to 14 and 16 of the particulars of A claim it fails to disclose a cause of action in that the new contract for the sale of land does not comply with the provisions of s 2(1) of the Alienation of Land Act 68 of 1981 (the Act). The fifth of these exceptions is to the effect that insofar as the appellants' claim is based on paras 15 and 16 of the particulars of claim, no cause of action is disclosed in that the contract of sale was void ab initio by operation of law and no B rights existed between the first respondent and the appellant which were capable of being waived.

[5] Section 2(1) of the Act provides:

No alienation of land after the commencement of...