Mills NO v Hoosen

• Jurisdiction: South Africa
• Judge: Boruchowitz J, Masipa J and Lamont J
• Judgment Date: 19 December 2008
• Citation: 2010 (2) SA 316 (W)
• Docket Number: A 5007/07
• Hearing Date: 21 April 2008
• Counsel: Names of counsel not supplied.
• Court: Witwatersrand Local Division

Masipa J: E

[1] This is an appeal, with leave of the court a quo, against the judgment of Gildenhuys J handed down on 11 December 2006, declaring an agreement of sale pertaining to certain immovable property to be valid and binding. F

[2] The principal issue is whether the agreement complies with the provisions of the Alienation of Land Act 68 of 1981 (the Act). The appellant claims that the agreement is null and void due to non-compliance with s 2(1) of the Act, which provides:

'(1) No alienation of land after the commencement of this section G shall, subject to the provisions of section 28, be of any force or effect unless it is contained in a deed of alienation signed by the parties thereto or by their agents acting on their written authority.'

[3] The relevant facts are not in dispute and can be briefly stated. The appellant is Gerhardus Phillippus Mills, the executor of the deceased H estate of the late Anna Johanna Catharina Smith. One of the assets in that estate is an immovable property known as Erf 959, Mayfair, situated at No 107, 5th Avenue, Mayfair, Johannesburg. In terms of a written power of attorney executed on 13 January 2005 the appellant appointed one Andrè Kitshoff as his agent to administer and liquidate the deceased estate. I

[4] Acting under the power of attorney Kitshoff appointed Cahi Auctioneers (Cahi) to sell the property by public auction. On 11 July 2006 and prior to the property being put up for auction the respondent, Zaheeda Hoosen, signed a written offer to purchase the property for R370 000. The offer was directed to: J

Masipi J

A 'CAHi Auctioneers of Plot 23 Tygervalley, Pretoria, the auctioneers/ agents

duly instructed thereto by:

(Seller)

ANDRE KITSHOFF

B the Provisional Trustee / Liquidator of / the Executor

DECEASED ESTATE ANNA JOHANNA CATHARINA SMITH.'

[5] The respondent's offer was rejected and on 18 July 2006 the property was put up for auction where it was knocked down to the highest bidder for R545 000. The respondent, who was present at the auction, had only C bid R430 000. The successful bidder repudiated the sale and the second- highest bidder was approached to buy the property, but declined to do so. The respondent was then approached and indicated that she was prepared to buy the property at the price bid.

[6] A decision was then taken, presumably by Cahi and Kitshoff, to D accept the respondent's bid. Appropriate amendments were effected to the original offer to purchase the property to reflect the purchase price as being R430 000, and the inclusion of a provision that the respondent pay a deposit of R45 000. The agreement, as amended, was thereafter signed by Kitshoff and the respondent whose signatures were witnessed by the auctioneer. On 19 July 2006 the respondent received a letter of confirmation E from Cahi that her offer had been accepted.

[7] The appellant thereafter repudiated the agreement and indicated that he had received and accepted an offer of R550 000 from a third party for the property. The respondent did not accept the repudiation and applied for an order declaring the...