Kruger v McCallum

• Jurisdiction: South Africa
• Citation: 1948 (3) SA 22 (T)

Kruger v McCallum
1948 (3) SA 22 (T)

1948 (3) SA p22

Citation	1948 (3) SA 22 (T)
Court	Transvaal Provincial Division
Judge	Roper J and Lucas AJ
Heard	November 25, 1947
Judgment	December 3, 1947

Flynote : Sleutelwoorde

Sale — Immovable property in Transvaal — Description of property — Sufficiency of — Boundary to be determined by a surveyor — When a compliance with Proclamation 8 of 1902 (T.), section 30.

Headnote : Kopnota

Parties may agree upon the purchase and sale of immovable property which has not yet been completely surveyed off, leaving it to a surveyor to determine a boundary so as to carry out the agreement of the parties provided that the terms of the agreement are such that the surveyor can act without further reference to the parties as to what is sold.

Case Information

Exception to a declaration, and application to strike out. The nature of the pleadings appears from the reasons for judgment.

D. O. K. Beyers, for the excipient (defendant): The deed of sale as rectified will offend against the provisions of Proc. 8 of 1902, sec. 30. See Estate du Toit v Coronation Syndicate Ltd. & Others (1929 AD 219); Mattheus v Stratford & Another (1946 TPD 498); van Wyk v Rottchers Saw Mills (Pty.) Ltd. (1947 (2) S.A.L.R. 852).

W. G. Boshoff, for the respondent (plaintiff): In an exception the Court must assume the correctness of allegations in the pleadings. Rectification is however possible: Weinerlein v Goch Buildings Ltd. (1925 AD at p. 288); Meyer v Merchants Trust Ltd. (1942 AD 244). The rectified deed of sale would not offend against sec. 30 of Proc. 8 of 1902: Coronation Syndicate case (supra at pp. 224 and 225); Kuper v Bollems (1913 TPD 334); Coronel v Kaufman (1920 TPD at p. 209); Sapirstein v Commerford (1944 TPD 182); van Zyl v Potgieter (1944 TPD 294); Mattheus v Stratford & Another (supra at p. 501); van Wyk v Rottchers Saw Mills (Pty.) Ltd. (supra).

Beyers, in reply.

Cur adv vult.

Postea (December 3rd).

Judgment

Roper, J.:

On 10th April, 1945, a deed of sale was entered into

1948 (3) SA p23

Roper J

between the defendant, as seller, and the plaintiff, as purchaser, of a property described as follows:

'Certain portion (a portion of the remaining extent of Portion B) of 'PIGEONHOLE' 395, district Letaba, in extent fifty morgen, as will more fully appear from diagram prepared by Surveyor W. Gerke in April, 1945, and as indicated on page 4 hereof and initialled by the parties for identification purposes.'

The purchase price was stated to be £1,050; possession was to be given to the purchaser on completion of the deed of sale; and para. 7 of the deed of sale provided as follows:

'The property is sold as described in the existing title deed or deeds thereof, and is subject to all conditions and servitudes (if any) attaching thereto or mentioned or referred to in the said title deed or deeds. The seller shall not be liable for any deficiency in extent which may be revealed on any re-survey, nor shall the seller benefit by any possible surplus.'

In his main declaration, the plaintiff alleges that the sale was induced by certain false and fraudulent allegations made to him by the defendant's agent and he claims damages in the sum of £420. He then files an alternative declaration claiming rectification of the deed of sale in certain respects on the ground that there was a prior verbal agreement and common intention of the parties and that the deed of sale was executed under a mutual mistake and did not reflect the true agreement or the common intention of the parties. In support of this contention he alleges that on or about 7th April, 1945, he and the defendant's agent, verbally agreed as follows: (a) that the plaintiff would buy about 50 morgen of the...