Odendaalsrust Municipality v New Nigel Estate Gold Mining Co Ltd
Jurisdiction | South Africa |
Judge | van Den Heever J and De Beer J |
Judgment Date | 01 April 1948 |
Citation | 1948 (2) SA 656 (O) |
Hearing Date | 23 February 1948 |
Court | Orange Free State Provincial Division |
Van den Heever, J.:
This is an exception to a declaration,
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:
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 land which is the subject of the sale is not adequately described and determined therein and:
That in any event the sale was concluded in a conditional contract and the contract becomes perfected only upon fulfilment of the condition, which is not alleged.
It becomes necessary to examine and interpret the contract in which the grant of option was effected, a long and involved document.
The subject-matter of the option is a portion of the townlands, 1,600 morgen in extent. The word 'approximately' refers to the larger complex from which it must be taken and those areas of the townlands which must necessarily be excluded from the 1,600 morgen.
Van den Heever J
In addition the Company stipulated for the right, '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'.
Mr. Brink, on behalf of excipient, complained that the demonstration of the land to be excluded from the option area is rather vague:
One morgen of ground surrounding each of the two boreholes from which the Town of Odendaalsrust derives its present water supply'
(then follows a right of servitude) and
'the present reservoirs with the pipelines leading thereto and therefrom, as such exist at the date of the signature hereof;
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;
approximately ten morgen of ground upon which is at present situate the Native Location'.
If the subject-matter of the transaction had been the mere residue after exclusion of these portions of land, the criticism would have been sound. But that is not the position. We start off with a defined and determinate area approximately 2,400 morgen in extent. It is described as
'the remaining extent of the farm Kalkkuil No. 153, district Hoopstad, held by the grantor under deed of transfer No. 4232/1913 dated the 12th November, 1913'.
For the purposes of this exception we must assume this description to be correct. It is true, the size is described as 'approximately', but the actual corpus being the result of sub-division and being registered as a separate entity, must be readily ascertainable in situ.
The parties contemplated that the Company would establish a township or an agricultural smallholding on the townlands, whereupon the Administration on the recommendation of the Townships 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 paras. (c), (d) and (e) above, leaving exactly 1,600 morgen, the 'option area'.
It is clear then that the subject-matter of the contract is an area of land exactly 1,600 morgen in extent, presently unascertained,
Van den Heever J
but to be ascertained by certain steps to be taken in future but (a fact which is important) not by negotiation between the parties.
This case differs from all the precedents cited by Mr. Brink in that the parties did not purport to contract in relation to a presently determinate area of land. It seems to me, therefore, that the dispute must be settled on first principles.
Two considerations seem to me to arise:
Either the contract in question is a sale within the contemplation of the Transfer Duty Ordinance, or it is not. If it is not, the exception, in so far as it is based on the provisions of that Ordinance, must fail; for then writing is not essential to the validity of the contract and those limitations which have been imposed upon the autonomy of the subject by extensive interpretation fall away; and
if the contract falls within the scope of sec. 49 of the Transfer Duty Ordinance, did the Legislature, by providing a certain form, namely, writing, on pain of nullity, intend to prohibit certain transactions which are in modern law classified as contracts of sale and which before the enactment of that provision were perfectly lawful?
Van der Linden (K.H. 1.15.8) describes purchase and sale as follows:
'Men verstaat daar door de overeenkomst om een zeker goed, voor een bepaalden prys, aan een ander over te doen - Drieledig zyn derhalven de vereischten in een koop: het goed, de koopprys, de wederzydsche toestemming. Er moet een zeker goed aanwezig zyn, het welk verkogt en gekogt word, want geen koop bestaat, als het goed er nooit geweest is, of er nu niet meer is.'
We labour under the tyranny of tralatician Roman concepts which have no room in modern law. By purchase and sale we mean a contract totally different to what the Romans understood the term to denote. If I purchase land it is understood that the seller is obliged to give me transfer, i.e., make me the proprietor of the land sold. It is true that where the parties contemplated that the subject-matter of the contract would never vest in the person who purports to be the purchaser, the contract was something else, but certainly not a contract of sale. (D. 18.1.80.3.) In the Roman contract of sale the vendor's obligation sounded in tradere not dare. Dare means more than delivery: it means delivery which makes the receiver the owner. If the vendor is owner of the thing
Van den Heever J
sold, the purchaser becomes owner by delivery; but the vendor is not obliged to give such transfer; he discharges his obligation by conferring possession and user upon the purchaser and is obliged to the latter in the case of eviction. (D...
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