Mahomed v Crouse NO

• Jurisdiction: South Africa
• Judge: Froneman J
• Judgment Date: 08 July 2008
• Docket Number: 660/07
• Court: South Eastern Cape Local Division
• Hearing Date: 11 June 2008
• Citation: 2008 JDR 0965 (SE)

Froneman J:

[1] Section 19 (1) of the Alienation of Land Act ('the Act') [1] prohibits the enforcement of certain remedies for breach of an instalment contract of sale unless the seller notifies the purchaser by letter of the breach concerned, makes demand for

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rectification of the breach and the purchaser fails to comply with the demand. [2] The demand must, in terms of s. 19 (2) of the Act, allow not less than 30 days for the rectification of the breach. This subsection provides:

"(2) A notice referred to in subsection (1) shall be handed to the purchaser or shall be sent to him by registered post to his address referred to in section 23 and shall contain –

….

(b) a demand that the purchaser rectify breach within a stated period, which, subject to the provisions of subsection (3), shall not be less than 30 days calculated from the date on which the notice was handed to the purchaser or sent to him by registered post, as the case may be; and

….

[2] The only issue for decision in this matter is to determine on the facts of this case on what date that 30 day period commenced.

[3] The parties agreed to a stated case of facts upon which this issue must be decided. In terms of the stated case it is common cause that the parties into an instalment sale for a certain piece of property on 19 February 2002. The provisions of the Act are accordingly applicable. By 3 July 2006 the plaintiffs had paid the purchase price in full. They were, however, also obliged to pay the transfer costs relating to the sale in question, but had failed to do so. This constituted a breach which entitled the defendants to invoke the provisions of s. 19 of the Act. On 17 November 2006 the defendants' attorney sent the plaintiffs a registered letter to the address chosen by

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them in terms of s. 23 of the Act, containing a notice in terms of s. 19 of the Act. The defendants received the letter on 21 November 2006, but failed to remedy the breach. On 20 December 2006 the defendants, represented by their attorney, orally cancelled the contract. [3]

[4] The plaintiff's contend that the 30 day period in terms of s.19 (2) (b) commenced running from the date they received the notice (21 November 2006), whilst the defendants contend that the 30 day period commenced running from the date upon which the notice was posted (17 November 2006). The parties have agreed that if the plaintiffs' contention is correct, the cancellation was premature and thus invalid. If the defendants' contention is correct, the cancellation was proper.

[5] In my view the plaintiffs must succeed, primarily because it appears to me that the provisions of s. 7 of the Interpretation Act [4] apply to the facts of the case and that, upon that application, the actual date of receipt of the notice by the defendants is the date upon which the 30 day period commences to run.

[6] Section 7 of the Interpretation Act provides as follows:

"Where any law authorizes or requires any document to be served by post, whether the expression 'serve', or 'give', or 'send', or any other expression is used, then, unless the contrary intention appears, the service shall be deemed to be effected by properly addressing, prepaying, and posting a registered letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."

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[7] Section 19 (2) of the Act authorizes two ways of delivery of the s. 19 (1) notice of demand. One is by delivery by hand and the other is that it "shall be sent to him by registered post". As can be seen from the provisions of s. 7 of the Interpretation Act quoted in the previous paragraph, the word "sent" in s. 19 (2) is one of the words or expressions that trigger the application of s 7 of the Interpretation Act. On the face of it, therefore, the provisions of s. 7 apply to a notice sent by registered post to a purchaser under s. 19 of the Act.

[8] The provisions of s. 7 of the Interpretation Act concern proof of service by post. It states, firstly, that service will be deemed to be effective by properly addressing, prepaying and posting a registered letter containing the authorised or prescribed document, "unless the contrary intention appears". It then provides that once that first hurdle is passed the service will be...