Headermans (Vryburg) (Pty) Ltd v Ping Bai

• Jurisdiction: South Africa
• Court: Supreme Court of Appeal
• Judge: E M Grosskopf JA, F H Grosskopf JA, Marais JA, Schutz JA and Streicher AJA
• Judgment Date: 27 March 1997
• Citation: 1997 (3) SA 1004 (SCA)
• Hearing Date: 14 March 1997
• Docket Number: 469/95
• Counsel: J H Engelbrecht for the appellant S L Joseph for the respondent

E M Grosskopf JA:

The issue in this appeal is whether a contract of sale of land between the parties is valid, and, if so, whether the respondent has lawfully cancelled it. The Court a quo (the Witwatersrand Local Division) held that it was not valid in that it did not comply with s 2(1) of the Alienation of Land Act 68 of 1981. With the leave of that Court the matter comes on appeal before us. I

The appellant is the owner of land previously described as Holding 27, Strathavon Agricultural Holdings, Registration Division IR Transvaal. The property is situated at 27 Linden Road, Strathavon.

The appellant applied for the establishment of a residential township on the property in terms of the Transvaal Town-planning and Townships J

E M Grosskopf J A

Ordinance 25 of 1965. On 8 November 1984 conditions of establishment in respect A of the proposed township were issued by the Administrator. The name of the township would be Sandown Ext 51.

Thereafter the appellant caused the general plan in respect of the proposed township to be prepared and to be submitted to the Surveyor-General for approval. Approval B was granted on 24 November 1989. The approved general plan has however not been lodged with the Registrar of Deeds and the township has not yet been finally proclaimed. According to the appellant it is common practice for owners of property not to go ahead with the final proclamation of their townships until they are in a position to develop those townships immediately. The reason for this is that as soon as a C township is proclaimed the owner of the township will pay significantly increased rates to the local authority. What still has to be done before proclamation of the township in the present case is to plan the services to be installed and to make the necessary arrangements in regard to these services with the local authority. D

Pursuant to the conditions of establishment of the proposed township, the property was excised from the Strathavon Agricultural Holdings and renamed Portion 667 (Portion of Portion 2) of the farm Zandfontein No 42, Registration Division IR Transvaal.

During 1994 the appellant decided to sell the entire property situated at 27 Linden Road, Strathavon, on which the township was proposed to be laid out. It appointed a E firm of estate agents, Vered Estates, as its agent to sell the property. Another firm of estate agents, Gloria Real Estates, introduced the respondent to Vered Estates. Charne du Toit of Vered Estates, and Gloria du Toit, of Gloria Real Estates, agreed to split the commission if the respondent were to buy the property, and jointly negotiated the sale. F

The estate agents accompanied the respondent to the property, which is situated between Linden Road and Helen Road, Strathavon. It is common cause that the negotiations related to the whole property. After having been shown the property the respondent was interested in buying it. However, he had certain business commitments G overseas and had to leave forthwith. Arrangements were accordingly made for the estate agents to draw up the necessary documents in regard to the sale. They were uncertain as to the correct description of the property. After enquiries at the Sandton Town Council they decided upon a description which they considered correct. This H description was incorporated in a written offer in the respondent's name to purchase the land. This offer was signed by the respondent as purchaser. It was presented to the appellant and accepted on behalf of the appellant as seller on 20 October 1994. The relevant portion of the document reads as follows:

'To the registered owner Headermans (Vryburg) (Pty) Ltd (hereinafter referred to as ''the I seller''), of Mannequin House, 97 Protea Road, Cnr Rivonia and Protea Roads, Chislehurston, Sandton.

I/We, the undersigned, Ping Bai (hereinafter referred to as ''the purchaser''), of No 8 Sanctuary, Linden Road, Strathavon, Sandton hereby offer to purchase, through the agency of Vered Estates (hereinafter referred to as ''the agent''), the following property, namely: Erf No PTN 567 & 568 Township Sandown Ext 51 J

E M Grosskopf J A

situated at erf 27, 27 Linden Road, Sandown Ext 51 together with all improvements thereon A (hereinafter referred to as ''the property'').'

In terms of the agreement the purchase price was R4 500 000. An amount of R450 000 was payable within three days of advice of acceptance of the offer to attorneys Mayat Nurick & Associates, who were to arrange the passing of transfer. This deposit B was forfeitable as rouwkoop in the event of lawful cancellation by the appellant. Payment was duly made. A guarantee was to be given on or before 20 December 1994 for the balance.

On 21 December 1994 the appellant's attorneys wrote to the...