Meyer v Kirner

• Jurisdiction: South Africa
• Judge: van Heerden J
• Judgment Date: 14 June 1974
• Hearing Date: 14 June 1974
• Court: Natal Provincial Division

Van Heerden, J.:

The sole issue involved in this application for a declaratory order is whether, in view of the provisions of sec. 1 (1) of Act 71 of 1969, a binding contract of sale of a certain immovable property situated in Natal exists between the applicant and the respondent.

The factual background is largely not in dispute. The H respondent purchased the property in question, described as Lot 251, Glenmore, on 28 May 1965 on instalments under a written agreement of sale from Portobello Beach Township (Pty.) Ltd., which company is still the registered owner of the property. The applicant contends - but this is denied by the respondent - that the said agreement is a "contract" within the meaning of sec. 1 of the Sale of Land on Instalments Act, 72 of 1971, and that sec. 11 thereof is applicable to the agreement. A copy of this agreement of sale forms annexure "M" in the papers.

Van Heerden J

The respondent advertised the property for sale in the "Sunday Tribune" newspaper on 12 November 1972 and on the same day the applicant telephoned the respondent and verbally obtained from him an option to buy it for - according to the applicant - R10 500. This option was to remain open until the following A day. The respondent admits the granting of the option save to say that he indicated to the applicant that R10 500 was to be the nett amount which he wanted out of the sale and that the applicant was to pay the agent's commission, if any, and the legal fees in respect of the transfer of the property. On 13 November the applicant again telephoned the respondent and an oral agreement was concluded whereby - according to the B applicant - the respondent agreed to sell to her the property for R10 000 payable by way of a deposit of R500 as soon as she had received a telegram from the respondent confirming the agreement of sale and the balance of R9 500 in cash against transfer. The respondent admits the oral agreement save again to say that it was also agreed that agent's C commission, if any, and legal fees in connection with transfer would be payable by the applicant and that the applicant's attorney would attend to the transfer. The respondent also says that the applicant said she would send a telegram confirming the agreement.

On the same day (13 November) the respondent sent a telegram to the applicant in which, the respondent says, he recorded all D the terms of the verbal agreement except that he omitted the term that the applicant's attorney would attend to the transfer and included the further term that the deposit would not be refundable and would be payable to him at a given address. The telegram (a post office copy whereof is annexure "A1" and a photostatic copy of the original - signed by the respondent E - is annexure "J") reads as follows:

"I hereby accept your telephoned offer of to-day of ten thousand rand cash against transfer of Lot No. 251 Glenmore Beach. No liability on my part for agent's or legal fees and subject to immediate payment of five hundred rands cash deposit not refundable payable to me at P.W.D., Private Bag 14, Jhb."

The applicant says that before she received this telegram she despatched the following phonogram - annexure "B" - to F the respondent (the telegram and phonogram apparently crossed):

"Sale re 251 Glenmore at R10 000 cash on transfer accepted. Attorney Kirsch of Margate to attend to transfer. On receipt of telegram confirming above R500 off purchase price will be forwarded to you with a formal deed of sale for signature."

The applicant says that she forthwith arranged for the personal G delivery of her cheque for R500 to the respondent and that she recorded and signed "the terms of our agreement" on the reverse side thereof in the following words:

"As agreed. Deposit R500 re Lot 251 Glenmore. Balance of R9 500 to be paid cash on transfer."

The respondent admits that the cheque was delivered to him on H 18 November 1972 by someone who acted as agent on behalf of the applicant but says that he cannot admit or deny that the words or the applicant's signature were on the reverse side of the cheque; they were not pointed out to him and nobody ever indicated to him that they represented the terms of their agreement; he cannot remember seeing the words but, if he had seen them, he would not have understood them as representing the terms of their agreement. He denies that the

Van Heerden J

words, if they were on the cheque when he received it, were written by the applicant with the intention of recording the terms of their agreement. The respondent says that, when he recieved the cheque and on the insistence of the person who A delivered it to him to be given a receipt, he wrote and signed a document in the form requested by this person. This document - annexure "D" - is headed "Receive" and reads as follows:

"I have received from Mrs. Meyers Portshipeston (sic) a check (sic) R500 - five hundred rand which is deposit of Plot No. 251 Glenmore. The balance R9 500 - nine thousand and 500 rand is due when the transfer is completed."

The respondent's then attorneys enquired from the applicant's B attorney by letter dated 23 November 1972 what the position was as regards the transfer and thereafter, following certain correspondence between the attorneys, the respondent's attorneys wrote to the applicant's attorney on 19 December 1972 as follows:

"Further to the above matter, we have been instructed by our C client to advise you that no deed of sale was signed by the parties concerned, therefore there is no valid sale."

This elicited a replying letter dated 4 January 1973 - annexure "F" - from the applicant's attorney with the following relevant paragraph -

"I have discussed this matter with my client who advises me that the transaction was concluded by means of a telegram from your client to mine dated 13 November 1972 and an acceptance by D telegram from my client to yours on the same date. In pursuance of the agreement reached my client has paid a deposit of R500 to yours and received a receipt dated 18 November 1972 confirming receipt of such deposit. I am accordingly satisfied that a valid deed of sale exists."

Thereafter, the applicant says, she was advised by her attorney that,

"acting ex abundante cautela in case it should be held that there was not yet a binding agreement of sale between the respondent and me",

E she should despatch a further telegram to the respondent. Such a teletelegram - annexure "G" - was sent on 21 February 1973 and reads as follows:

"I confirm receipt of your telegram of 13 November 1972 and confirm the terms of sale referred to therein. I further confirm my payment of R500 as deposit on Lot 251 Glenmore and agree that balance of R9 500 will be paid to you on registration of transfer. I again confirm that the R9 500 is F immediately available in cash."

On 23 February 1973 the applicant's attorney received a letter dated 16 February 1973 - annexure "H" - from the respondent's attorneys (the respondent having by now changed his attorneys) in which reference is made to a telephone G conversation between the writer of the letter and the applicant's attorney in which the existence of a valid sale was disputed. The receipt of this letter was acknowledged by the applicant's attorney in a letter dated 1 March 1973 - annexure "I" - with the following two relevant paragraphs:

"It is my view that a valid deed of sale was brought into existence by the telegrams sent by your client to mine and my H client to yours of 13 November 1972, as amplified and subsequently confirmed on 18 November 1972, when your client furnished mine with a receipt for the R500 deposit paid by her.

In the event of it being your contention that your client's telegram constituted a counter offer, then it is my view that the telegram addressed by my client to yours on 21 February 1973 constitutes an acceptance of the counter offer as it was sent prior to the receipt of your letter under reply."

The applicant in her affidavit submits - and Mr. Hunt who appeared for her argued - that a binding agreement of sale in terms of sec. 1 of Act 71 of 1969 came into being between the respondent and herself in one or other of the following manners:

Van Heerden J

"(a)

By the respondent's telegram of 13 November - annexure 'A1' - read with the wording on the reverse side of the applicant's cheque - annexure 'C2';

(b)

alternatively, by the exchange of the said cheque with the wording on the reverse side thereof - annexure 'C2' - and the document headed 'Receive' - annexure 'D';

(c)

further alternatively, by the exchange of the respondent's said telegram - annexure 'A1' - and the applicant's telegram of 21 February 1973 - A annexure 'G'."

I merely point out that in the applicant's affidavit the submission under (b) above appears as the main submission and the submission in para. (a) above as the first alternative submission.

Mr. Hunt did not press the further alternative submission set B out in para. (c) as he conceded that there had been a tacit withdrawal by the respondent of any offer to sell which he had previously made or that might have been contained in the telegram, annexure "A1". This concession - if such offer had not already lapsed, as contended for by Mr. Streicher who appeared for the respondent, because of the lapse of a C reasonable time (for which compare Garvie & Co. v Wright and Donald, (1903) 20 S.C. 421 at p. 422, and Dietrichsen v Dietrichsen, 1911 T.P.D. 486 at p. 496) - was, on the evidence that is undisputed or common cause, in my view, correctly made. Nothing further need therefore be said about the further alternative submission.

The existence of a binding agreement as contended for in the D main and the first alternative submissions - as set out in paras. (a) and (b) above - is in each of these submissions dependent upon a reading of the wording on the reverse side of the...