Moser v Milton

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Tindall JA, Greenberg JA, Schreiner JA and Davies AJA
• Judgment Date: 08 May 1945
• Citation: 1945 AD 517
• Hearing Date: 14 March 1945
• Court: Appellate Division

Tindall, J.A.:

This appeal turns on the interpretation and effect in, law of the Country Land Sales Restriction Regulations, 1943, of Southern Rhodesia, made by the Governor under the powers conferred by sec. 4 of the Emergency Powers (Defence) Act, 1939 (as amended), of that Colony. In the High Court of Southern Rhodesia the respondent sued the appellant on a written deed of sale of

Tindall, J.A.

immovable property, claiming payment of the balance of the purchase price due and tendering transfer against such payment. In terms of the deed of sale (dated 22nd June, 1944, and signed by both parties), which was attached to the plaintiff's declaration, the purchaser agreed to pay £500 to the seller on account of the purchase price on the signing of the deed and the balance of the purchase price against transfer. Clause 5 of the deed stipulated that possession of the property should he taken on 1st July 1944, and that it should be at the risk and profit of the purchaser from that date onwards. Clause 6 provides as follows:

"This agreement is subject to the approval of the Minister of Agriculture and in the event of the Minister fixing a lower price than that stipulated herein or refusing to sanction the said sale, the vendor shall not be bound thereby and this agreement shall be cancelled, whereupon the vendor shall immediately refund to the purchaser the said sum of £500 to be paid in terms of Clause 2 hereof. Pending such refund the purchaser shall retain possession of the said movables which shall thereupon be pledged to her as security for such refund.".

In Clause 4 the purchaser agreed to pay the costs of transfer and of obtaining the consent of the Minister.

It may be mentioned that the property sold included certain stock and movables to which the sum of £750 out of the total purchase price of £2,500 was allocated. The declaration alleged that the plaintiff had received the sum of £500 from the defendant, that possession of the property was duly tendered, that the Minister of Agriculture and Lands on 13th July, 1944, approved of the sale in terms of the, regulations above mentioned and that on 12th July, 1944, the defendant wrongfully and unlawfully and in breach of the deed of sale withdrew from the agreement. To this declaration the defendant excepted as disclosing no cause of action in that, ex facie the declaration, the deed of sale was an inchoate agreement in which, both by its own terms and by operation of the regulations mentioned, the approval of the Minister was a condition precedent to its acquiring any force or effect, that the defendant withdrew from the inchoate agreement before it had acquired any force or effect, by virtue of such approval and that therefore there was no vinculum juris between the parties as a basis for the plaintiff's claim.

In sec. 2 of the regulations, which relate to immovable property,

Tindall, J.A.

this term is defined as meaning immovable property in the European area (as defined by the Land Apportionment Act of 1941) but as excluding property of 100 acres or less in extent property which comprises the whole or part of the area of an approved township and property owned by the Crown or a local authority. The word "sale" is defined as including (a) a sale by auction;, (b) a hire purchase agreement; (c) an exchange; (d) any other type of agreement which provides for the alienation, disposal or transfer of immovable property for valuable consideration, but as excluding (i) a sale in execution of the process of any Court; (ii) a sale by a trustee in insolvency; (iii) a sale by the liquidator of a company in the process of the winding up of the company under an order of Court other than an order resulting from a special resolution of the company that the company be wound up by the Court; (iv) an expropriation under any law or title deed. And the definition states that the expressions "purchaser" and "seller" shall be construed accordingly.

It is desirable to quote in full the regulations which follow on sec. 2: -

3.

No agreement for the sale of immovable property shall be of any force or effect unless

(a)

such agreement has been reduced to writing and signed by the parties thereto or by their agents duly authorised in writing; and

(b)

the purchaser, the purchase price and the other terms and conditions of such agreement have been approved by the Minister.

4.

No donation of immovable property shall be of any force or effect unless, in addition, to any other requisites required by law for its validity -

(a)

the agreement of donation has been reduced to writing and signed by the parties thereto or by their agents duly authorised in writing; and

(b)

such agreement has been approved by the Minister.

5.

Every application for the approval of an agreement shall be made on the form prescribed by the Minister to the Secretary, Department of Agriculture, Salisbury, and shall be accompanied by the agreement and a copy thereof. The applicant may annex a valuation of the property made by a valuator.

6.

Before finally refusing to approve of any agreement the

Tindall, J.A.

Minister shall notify the applicant of his provisional intention to refuse his approval and shall give the applicant an opportunity of submitting further statements in support of his application.

7.

No agreement for the cession or assignment of any rights under an agreement approved by the Minister shall be of any force or effect unless such agreement of...