Mulder v Van Eyk

• Jurisdiction: South Africa
• Judge: Smalberger J
• Judgment Date: 26 June 1984
• Court: South Eastern Cape Local Division

Smalberger J:

This is an application for a declaratory order. B It arises out of a written agreement of sale (the agreement) entered into between the applicant and the respondent on 12 June 1983 in respect of the sale of certain immovable property situated at St Albans, Port Elizabeth ("the property"). The applicant was the purchaser and the respondent C the seller of the property in terms of the agreement. The declaratory order sought relates primarily to the applicant's right to possess and occupy the property, and his entitlement to all rentals that have accrued from the property since the date of sale.

The agreement reads as follows:

"Koopooreenkoms tussen Mulder van Eyk (verkoper) en Wessel Michael Mulder (koper).

D Dit word hiermee ooreengekom dat verkoper eiendom erf 68 Gedultsrivier, St Albans, Port Elizabeth, verkoop aan koper teen R65 000 te betaal soos volg:

R15 000 reeds betaal voor die opstel van die ooreenkoms. R10 000 op of voor 30 April 1984. Die balans van R40 000 op of voor 30 April 1986.

Dit word verder ooreengekom dat verkoper die huis sal laat E uitgas teen houtboorders en dat koper enige ander herstelwerk wat nodig mag wees so gou doenlik op sy koste sal uitvoer.

Verder word die eiendom voetstoots verkoop."

It is common cause on the papers before me that the parties entered into the agreement on 12 June 1983; that the agreement was drafted by the respondent; that since the date of the agreement was drafted by the respondent; that since the date of F the agreement the property has been let to tenants; that the rental that has accrued in respect of the property has been received by the respondent; that the respondent has persistently denied the applicant the right to possess and occupy the property; that when the application was launched only the amount of R15 000 referred to in the agreement had been paid by the applicant to the respondent in respect of the purchase price.

G The respondent challenges the validity of the agreement. He does so on the basis that it does not comply with the provisions of s 2 (1) of the Alienation of Land Act 68 of 1981 (the Act), in the first instance because it omits a material term of the agreement, namely the date of possession or occupation.

The relevant portion of s 2 (1) of the Act provides:

H "No alienation of land... shall... 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."

While the wording of s 2 (1) of the Act differs in certain respects from that of its precursors, s 1 (1) of Act 71 of 1969 and s 1 of Act 68 of 1957, its meaning remains basically the I same, and it is obviously designed to achieve the same purposes as the previous enactments. The principles that have been laid down in various judicial pronouncements for the determination of the validity of a written contract of sale under such enactments will therefore likewise apply to the provisions of s 2 (1) of the Act. From these principles it is clear that the essential terms of a

Smalberger J

A contract of sale of land, that is the parties, the price and the subjectmatter, must be in writing and defined with sufficient precision to enable them to be identified. In addition other material terms of the contract, agreed upon as such and intended by the parties to be incorporated in their agreement, must be in writing, failing which it would be invalid for non-compliance with the requirements of s 2 (1) of B the Act. (See in this regard King v Potgieter 1950 (3) SA 7 (T) at 14C - E; Johnston v Leal 1980 (3) SA 927 (A) at 937G - 938C; Raven Estates v Miller 1984 (1) SA 251 (W) at 255E.)

It is common cause that the agreement embodies the essentials of a contract of sale. The omission of the date of possession would only be fatal to the validity of the agreement if the C parties had intended it to be a material term thereof (cf Johnston v Leal (supra at 940A - E)). It is apparent from the papers before me, however, that the parties neither applied their minds to, nor agreed upon, the date of possession, and never intended such date to constitute a material term of the agreement. This distinguishes the present matter from Exis D Eiendomme (Edms) Bpk v Bezuidenhout 1972 (1) SA 559 (T) insofar it was held on the facts of that case that the date when possession and occupation of the immovable property concerned had to be given was a material term (Meyer v Kirner 1974 (4) SA 90 (N) at 98F). The fact that the agreement is silent on the date of possession of the property therefore does not...