Odendaalsrust Municipality v New Nigel Estate Gold Mining Co Ltd

• Jurisdiction: South Africa
• Judgment Date: 01 April 1948
• Citation: 1948 (2) SA 656 (O)

Odendaalsrust Municipality v New Nigel Estate Gold Mining Co Ltd
1948 (2) SA 656 (O)

1948 (2) SA p656

Citation	1948 (2) SA 656 (O)
Court	Orange Free State Provincial Division
Judge	van Den Heever J and De Beer J
Heard	February 23, 1948
Judgment	April 1, 1948

Flynote : Sleutelwoorde

Sale — Immovable property in O.F.S — Sale subject to condition precedent — Failure to allege implementation of — Effect — Contract — Interpretation of — Whether contract falls within ambit of Free State Ordinance 12 of 1906.

Headnote : Kopnota

In terms of clause 1 (A) of a written agreement, the Municipality had granted to N. & R. the sole and exclusive option 'to purchase for the sum to be reckoned at £20 per morgen certain 1,600 morgen, being portion of the Townlands of Odendaalsrust, which Townlands comprised the remaining extent approximately 2,400 morgen of the farm K. . . such 1,600 morgen being the area left after setting aside and reservation of the area of approximately 800 morgen referred to in paragraph 9 below'. After providing for the exclusion of the mineral rights over the said 1,600 morgen (referred to hereinafter as the option area), and all surveyed erven, streets and squares, this clause proceeded to exclude from the option '(c) one morgen of ground surrounding each of the two boreholes from which the Town of Odendaalsrust derives its present water supply, and the right to lay and maintain the necessary pipelines from the said boreholes to the Town of Odendaalsrust and the right likewise to maintain for as long as the grantor may desire to do so, the present reservoirs with the pipelines leading thereto and therefrom, as such exist at the date of the signature hereof; (d) four morgen of ground for a graveyard to be surveyed as one block and so as to include the existing graveyard, with the necessary right of way thereto and therefrom; (e) approximately ten morgen of ground upon which is at present situate the Native Location'. This clause defined the 1,600 morgen aforesaid, less the exclusions above set out, as the 'option area' and in clause 1(B) proceeded to grant an option 'subject to existing and future laws, to lay out and establish one or more townships and/or agricultural and/or small holdings or extensions of the existing township on the said option area or any part thereof'. In paragraph 9 the agreement provided 'that simultaneous with the establishment of a township or of agricultural or small holdings or extension of the existing township on the said option area in terms of this agreement, other than an extension under clause 7 (a) hereof of the existing township, the Administration on the recommendation of the Township's Board, after consultation with the grantees, shall be entitled to set aside and reserve for public purposes for the existing township of Odendaalsrust and the inhabitants thereof, a portion or portions approximately 800 morgen in extent and including the areas referred to in paragraphs (c), (d) and (e) of clause 1 (A) hereof, and representing the balance of the extent of the Township of Odendaalsrust after deduction of the option area and outside any such township, agricultural or small holdings so established in terms of this agreement'. The Municipality repudiated the contract and plaintiff as cessionary instituted an action in which it claimed an order (a)

1948 (2) SA p657

that there was a valid and binding contract of purchase and sale between the parties and (b) that defendant was obliged to do all things necessary to give effect to the said contract. The Municipality excepted to the declaration on the grounds (1) that the contract did not comply with the provisions of section 49 of Ordinance 12 of 1906, in that the land was not adequately described and determined, and (2) that in any event the sale had been concluded in a conditional contract and the contract became perfected only upon fulfilment of the condition, which was not alleged. At the hearing counsel for respondent conceded that in view of the provisions of clause 9 the action was premature and the exception was good.

Held, accordingly, that the exception should be allowed with costs.

Per VAN DEN HEEVER, J., that the contract was one of sale and fell within the ambits of the Transfer Duty Ordinance, 12 of 1906.

Case Information

Argument on an exception to a declaration. The nature of the pleadings appears from the reasons for judgment.

C. P. Brink, K.C. (with him J. N. C. de Villiers), for the excipient: The requirement that a contract should be in writing is based on considerations of public policy; see Wilken v Kohler (1913 AD 141 - 3); Van Wyk v Rottcher's Saw Mills (Pty.) Ltd. (1948 (1), S.A.L.R. 983); Du Toit v Coronation Syndicate, Ltd. and Others (1929 AD 224). The writing must contain all the essential elements of the contract of sale, i.e., the price, the parties and the subject-matter; see Coronel v Kaufman (1920 TPD 207); Fram v Rimer (1935, W.L.D. 5); Du Toit's case (supra); Van Wyk's case (supra); further, all other material terms must be in writing; see Kuper v Bolleurs (1913 TPD 334); Van den Berg v Van Leggelo (1935 TPD 304). The written description required by the section must be such that ex facie the document the subject-matter can be identified, and that description must not consist of a reference to and depend upon the evidence of the parties themselves; see Du Toit's case (supra). 'Evidence of the parties themselves' means evidence by whomsoever given to implement the contract. Du Toit's case (supra) has been explained by Van Wyk's case (supra) and distinguished from the latter. Ordinarily it is possible in written contracts to describe the land sold by a reference, such as 'the land agreed upon', and to lead evidence to identify such land; but where a contract of such a nature is declared to be invalid unless in writing it is not permissible to lead such evidence; see Van Wyk's case (supra, at p. 989). If a written contract leaves it uncertain as to what the shape and extent of land sold is, parol evidence is not admissible

1948 (2) SA p658

to remedy the defect; cf. Oberholzer v Gabriel (1946, O.P.D., at 59, 60); Coronation Syndicate case (supra); Lugtenborg v Nichols (1936 TPD 76); Van Zyl v Potgieter (1944 TPD 294); Matthews v Stratford (1946 TPD 498). For cases where the description was held to be adequate, see Van der Heever v Vorster and Another (1939 TPD 64); Cromhout v Afrikaanse Handelaars (1943 TPD 302); Conroy, N.O v Coetzee (1944 OPD 207); Sapirstein v Commerford (1944 TPD 182); for examples of description, see Van Wyk's case (supra, at p. 1000); for examples of cases where the property sold is identified as at the time of the sale, see Williston, Contracts (para. 576). The maxim Certum est quod certum reddi potest in only applicable where the contract itself prescribes how certainty is to be obtained and where the rendering certain is evidenced by some writing: it is also subject to the rule that if it relates to a material part of the contract it must be in writing; cf. the example in Coronel's case (supra). For limitations of the maxim, see Van Wyk's case (supra, at p. 990). The test is: was there a valid contract at the time the parties entered into it, and regard can only be had to the circumstances at the time of the signing of the deed of sale; see the Coronation case (supra); MacKeurtan, Law of Sale in South Africa (2nd ed., p. 14); Oberholzer v Gabriel (supra); Van Zyl v Potgieter (supra). In any event, the sale alleged in the present case is conditional on the setting aside of 800 morgen of excipient's townlands by the Administrator for public purposes, and there is no allegation in respondent's declaration that this has been done.

N. E. Rosenberg, K.C. (with him W. Pollak, K.C. and R. G. McKerron), for the respondent: The contract complies with the provisions of sec. 49 of Ord. 12 of 1906; cf. Glover v Bothma (1948 (1), S.A.L.R., at p. 621). As to the second ground, it is conceded that the exception must, in view of the provisions of clause 9 of the contract, succeed.

Brink, K.C., in reply.

Cur adv vult.

Postea (April 1st).

Judgment

Van den Heever, J.:

This is an exception to a declaration,

1948 (2) SA p659

Van den Heever J

averring that it is bad in law on the ground that it discloses no cause of action.

On the 30th March and the 8th June, 1942, the Municipality granted in writing to one Nielson and one Roberts the sole and exclusive option to purchase for a sum to be reckoned at twenty pounds per morgen

'certain one thousand six hundred morgen, being portion of the Townlands of Odendaalsrust, which Townlands comprise the remaining extent approximately 2,400 morgen of the farm Kalkkuil No. 153 . . . such 1,600 morgen being the area left after setting aside and reservation of the area of approximately 800 morgen referred to in para. 9 below'.

This agreement was duly approved and sanctioned by the Administrator. The option was ceded again and again with the consent of the Municipality, ultimately coming to rest with the present respondent, who exercised the option in writing on the 25th September, 1946. On or about the 4th October, 1946, it is alleged, the defendant (now excipient)

'wrongfully and unlawfully repudiated the contract of sale between the parties and claimed and still claims that there is no binding contract of purchase and sale between the parties'.

In the premises respondent instituted an action in which it claimed an order declaring: (a) that there is a valid and binding contract of purchase and sale between the parties and (b) that defendant is obliged to do all things necessary to give effect to the said contract.

To this declaration defendant raised the exception referred to on two legal grounds:

(1)

That the contract does not comply with the provisions of sec. 49 of the Transfer Duty Ordinance, 1906 (Ord. 12 of 1906, O.R.C.) in that the...