Levin v Drieprok Properties (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Van Blerk JA, Holmes JA, Trollip JA, Corbett JA and Hofmeyr JA
• Judgment Date: 07 March 1975
• Citation: 1975 (2) SA 397 (A)
• Hearing Date: 17 February 1975
• Court: Appellate Division

Corbett, J.A.:

The appellant was the plaintiff in the Court C below in an action in which he claimed from respondent (defendant below) payment of the sum of R2 000, together with interest thereon at the rate of 6 per cent per annum a tempora morae, and costs of suit. After hearing the action, the trial Court granted absolution from the instance, with costs to the respondent. The appeal is against this decision.

D It appears from the evidence that during the course of 1969 appellant, who carries on business in Johannesburg as a financial broker, became interested in the purchase of a vacant piece of land situated in Kempton Park and described as stand 847, which was zoned as a flat site. He was introduced to this property by one De Wet, a salesman in the employ of a firm of estate agents, known as Oranje Estate and Insurance Agency. E After viewing the land, appellant indicated that he wished to purchase it and a few days later, on 12 August 1969, he signed a written "Offer to Purchase" which was placed before him by De Wet. It is principally upon this document that the dispute between the parties hinges and it is, therefore, necessary to refer to it in some detail.

F Although the original document, which was attached to appellant's particulars of claim, was before the trial Court, it was the time of the hearing of the appeal. All that we had before us were photostatic copies. This has subsequently been remedied. As I shall show later the precise appearance of the original is of some importance in regard to one factual issue G in the case and in the general understanding of some of the evidence.

The document itself consists of a single sheet of paper folded in half so as to provide four pages. The first two pages (which I shall call pp. 1 and 2) contain a printed form headed, on p. 1:

"Offer to Purchase

H through the agency of

Oranje Estate and Insurance Agency"

The remainder of the form consists, as is usual, of printed provisions with blank spaces into which have been inserted, in manuscript, the appropriate information and particulars. The first page, apart from the heading described above, and a clause which has been deleted and marked "Not applicable", reads as follows (the handwritten portions being shown in italics):

Corbett JA

"To	Alwyn Francois Wentzel as Director
of	of "Drieprok" Properties (Pty.) Ltd.,
	Box 188, Rivonia
I/We, the undersigned	Harry Levin and, or, a
	Company to be formed
of	14th Floor, Citibank Centre, Market St., Jhb.
A hereby offer to purchase, through the agency of Oranje Estate and Insurance Agency the following property:
Vacant Flat Site Stand No. 847 Kempton Park, in extent 21 863 square feet, zoned flat rights three storeys, situated on corner of Pienaar and Commissioner St., Kempton Park.
subject to all conditions and servitudes referred to in the current or prior title deeds of the property and we offer to B purchase the property "voetstoots" in the condition and to the extent such as it now lies.
subject to all conditions and servitudes referred to in the current or prior title deeds of the property and we offer to B purchase the property "voetstoots" in the condition and to the extent such as it now lies.
1. The purchase price is the sum of twenty-three thousand rand (23 000) payable as follows:
(a) In cash upon signing of these presents the sum of R2 000 (two thousand rand) to be deposited at the offices of Oranje Estate and Insurance Agency on the account of the Seller.
(b) C For the balance being the amount of 21 000 (twenty-one thousand rand) approved guarantees will be furnished within 90 (ninety) days after acceptance of this offer. The above-mentioned guarantee will be payable free of bank exchange
at Sellers Solicitors immediately after registration of transfer into my/our name."

Adjacent to the change from "Buyers" to "Sellers" and the D alteration to the printed word "our" in the last line appear certain initialings.

Page 2 contains a number of terms appertaining to the transaction and the signatures of the parties. As completed, again by handwritten insertions, these terms provide, inter alia, that the balance of the purchase price is to be paid by E the purchaser on 12 November 1969; that possession and occupation of the property is to be given on 12 November 1969; and that transfer is to be passed as soon as payment has been made of the whole of the purchase price. Three of the clauses merit full quotation. The first, which is wholly handwritten and appears at the head of the page as clause 1 (d), reads:

"(1)

Upon acceptance of this offer the Seller agrees that a F Solicitor's Agreement be drawn up between Buyer and Seller to give effect to this sale by not later than 12 November '69.

(2)

The Seller agrees to include architect's plans which are paid for."

The other two, printed clauses 6 and 7 (with handwritten insertions in italics), are as follows:

"6.

This offer is valid until the 12th day of August at G mid-night 1969, after which date the offer shall become void if not accepted. It is specifically agreed by the parties hereto that if the offer is accepted prior to this date it is binding on both parties and that the sale has been concluded, and further, that Messrs. Oranje Estate and Insurance Agency have completed their mandate and that the Seller shall pay agents' commission in terms of the tariff of the Institute of Estate Agents and Auctioneer of South Africa.

7.

Whilst there is any balance owing on the purchase H price, the conditions as set out on the opposite page will apply to this sale."

Sets of initials appear next to clauses 1 (d) and 6 and also next to another printed provision which was deleted. The conditions "on the opposite page", referred to in clause 7 and thereby incorporated in the offer to purchase, are clearly those set out in the deed of sale, hereafter described.

At the foot of the page appear, first, the witnessed signature of the appellant, over the printed word "Offeror" together with the place and date, viz. Johannesburg and 12 August 1969. Below this appears:

Corbett JA

"Accepted at Johannesburg on this 12th day of August 1969
Christo de Wet; Witness	A. F. Wentzel; Owner; for Drieprok Properties Pty. Ltd.'

A (Handwritten portions again being in italics.)

The last two pages of this document (which I shall call pp. 3 and 4) contain a deed of sale. This is again a printed form which has been filled in and signed and purports to record a purchase and sale of the property in question between "Alwyn Francois Wentzel as director of Drieprok Properties (Pty.) B Ltd." and Harry Levin (appellant) "and/or a company to be formed". The document states that the conditions in the offer to purchase are applicable, together with the conditions which follow. Condition 6 provides that in the event of the purchaser failing to make due payment or otherwise committing a breach of any conditions and remaining in default for 15 days after the C despatch by registered post of a notice requiring payment or the remedying of the breach, the seller shall be entitled, inter alia, to cancel the sale and retain all amounts paid by the purchaser

"as roukoop and/or as a genuine pre-estimate of liquidated damages suffered by the seller".

D Reverting to the events of 12 August 1969, it is clear from the evidence of the appellant and that of De Wet (who was called by the respondent) that at the time when appellant appended his signature to the offer to purchase the words "as Director of 'Drieprok' Properties Pty. Ltd." (which follow the name Alwyn Francois Wentzel on p. 1) did not appear on the E document; nor, naturally, had Wentzel completed and signed the acceptance at the foot of p. 2. Otherwise, save possibly for an alteration on p. 1 (to which I shall revert later), the offer had been completely filled in, this having been done by De Wet himself. As for the deed of sale, appellant averred that he signed this document in blank, i. e., without any of the F handwritten particulars which now appear therein having been inserted. Although this was specifically denied by respondent in its plea, neither De Wet nor Wentzel, who also was called as a witness on respondent's behalf, was able to sustain this denial in evidence. The trial Judge rightly accepted appellant's evidence on this point.

It further appears from the evidence that, at the time when De Wet obtained appellant's signatures to these documents, he (De G Wet) was uncertain as to whether the property was owned by Wentzel or by a property-owning company in which Wentzel had an interest. He told appellant of his uncertainty. They discussed the possiblity of a company being the owner and it was arranged that in such event, instead of appellant purchasing the land H from the company, an agreement for the purchase of the shares in the company and the shareholders' loan accounts be drawn up. In the meanwhile Wentzel's name was inserted on p. 1 of the document as being the person to whom the offer was addressed. Both appellant and De Wet stated in evidence that it was because of this arrangement concerning a possible purchase and sale of shares in a company that clause 1 (d) (1) was inserted in the offer. This clause was drafted by De Wet...