King v Potgieter

• Judge: Blackwell J, and Roper J
• Judgment Date: 08 May 1950
• Citation: 1950 (3) SA 7 (T)
• Hearing Date: 27 April 1950
• Court: Transvaal Provincial Division

Blackwell, J.:

Appellant sued the respondent in the Court of the resident magistrate at Boksburg for three amounts said to be due under a C deed of sale dated September 18th, 1948. The items were as follows:

1.

£56 being instalments from November, 1948, to March, 1949, at the rate of £11 4s. per month, payable in terms of clause 2 (b).

2.

D £7 5s. 10d. being interest due for the same period on an account of £350 at 5 per cent per annum payable in terms of clause 2 (c).

3.

£4 7s. fire insurance premium paid by the plaintiff which the defendant was said liable to pay in terms of clause 6.

E To this summons defendant filed a plea admitting that a deed of sale had been entered into between the plaintiff and himself, and setting up a subsequent verbal agreement to the effect that the instalments due under the deed would not be payable until the plaintiff had laid certain piping to the residence in question, that this piping had not been laid, F and the liability under the deed had therefore not arisen. To this plea plaintiff successfully took exception and it disappeared from the pleadings. Defendant then filed a new plea, in para. 2 of which he averred that the deed of sale was null and void, and, in response to a request for particulars, set out that the deed failed to comply with the G Transfer Duty Proclamation in the following respects:

(a)

The name of the purchaser is not stipulated in the deed.

(b)

The description of the property is not set out with such precision that the property can be identified without referring it to the evidence of the parties.

(c)

The deed does not stipulate as from what date the monthly payments have to be made.

(d)

H The deed does not stipulate as from what date the purchaser is liable to pay interest on the balance of the purchase price.

(e)

The deed does not stipulate the date whereon possession of the property will pass to the purchaser.

When the matter came to trial the Court ruled that the onus was upon the defendant, and his attorney then called in evidence the defendant, his wife and his son as to the discussion which took place when the deed was signed. The deed itself was produced,

Blackwell J

not as might possibly have been expected on a printed form, but in the handwriting apparently of the seller, and it appeared that there were a number of blanks in it which had not, at the time of signing, been filled in. It will be convenient to deal with these blanks under the same heading as the details mentioned above:

(a)

A There is in fact a blank in the introductory portion of the deed where the name of the purchaser should appear.

(b)

The property is described as 'Plot Number 141, Bartlett's Small Holdings; area 6.22 acres with all improvements thereon.'

(c)

Clause 2 (b) of the agreement reads: 'The purchase price is the sum of £2,750 payable by the purchaser to the seller as follows: £11 4s. 0d. per month from, and including, the . . .'

(d)

B Clause 2 (c) of the deed reads: 'As and from the first day of . . . the purchaser shall be liable for interest at the rate of five per cent on the amount owing from time to time over and above £1,900.'

(e)

Clause 5 of the deed reads: 'Possession of the property shall be given to the purchaser on . . . from which date it shall be at the sole risk, loss or profit of the purchaser.'

C Before dealing with this plea I should point out that the summons read with the deed of sale to which it refers, but a copy of which it does not annex, is plainly bad in law. It claims the three items under three specific provisions of the deed but, as we have seen, these three D provisions, including clause 6 which is based on clause 5, do not contain the dates ascribed to them in the summons, or, in fact, any dates. If it is sought to cure the absence of specific dates by saying, as was said by Mr. Dison for the appellant, that the payments must be taken to be due 'within a reasonable time' then the answer is this is E not the case made out in the summons for it states specifically that the obligations in regard to instalments and interest commenced to run from November 1st, 1948, 'in terms of clauses 2 (b) and 2 (c) of the deed of sale', and there is nothing of this sort to be found in the deed itself, and the third claim is also bad for similar reasons. But no F exception was in fact taken to the summons, and the point I have just made does not arise therefore in the present appeal. I have now, then, to consider the special plea.

Not too much attention need, in my opinion, be devoted to particulars G (a), and (b). It is true that the name of the purchaser does not appear in the body of the deed, but at its foot appears the following signatures: 'Seller J. F. King. Purchaser J. G. Potgieter. 18/9/48' and this, in my opinion, is sufficient. So far as the description of the property is concerned I think that this is adequate following the cases of Sapirstein v Commerford (1944 TPD 182) and van Wyk v. H Rottcher's Saw Mills (Pty.), Ltd. (1948 (1) S.A.L.R. 983 (AD)). But the remaining defects in the deed occasion far more difficulty.

Sec. 30 of the Transvaal Transfer Duty Proc. 8 of 1902, provides as follows:

'No contract of sale of fixed property shall be of any force or effect unless it be in writing and signed by the parties thereto or their agents, duly authorised in writing.'

Blackwell J

Its purpose was stated by INNES, C.J., in Wilken v Kohler (1913 AD 135) in the following words:

'Recognising that contracts for the sale of fixed property were, as a rule, transactions of considerable value and importance, and that the conditions attached were often intricate, the Legislature, in order to prevent litigation and to remove a temptation to perjury and fraud, A insisted upon their being reduced to writing.'

and in Estate du Toit v Coronation Syndicate Ltd. and Others (1929 AD 219 at p. 224) STRATFORD, J.A., put it thus:

'Thus the object of a written contract, as also of a notarial contract in matters of this kind, is to have such certainty as a written document affords as will avoid subsequent disputes as to what was really agreed upon.'

B Quite obviously when the section speaks of a contract of sale it means the whole contract, that is to say all the essential elements of the contract, per WATERMEYER, C.J., in van Wyk's case (supra). The mode of C payment of the purchase price is certainly an essential element...