Rand vir Rand (Edms) Bpk v Boswell

• Jurisdiction: South Africa
• Court: Witwatersrand Local Division
• Judge: Nestadt J
• Judgment Date: 05 May 1978
• Citation: 1978 (4) SA 468 (W)

Nestadt J:

The plaintiff claims repayment of the sum of R7 500, being that portion of the purchase price which it allegedly paid the defendant B pursuant to a written agreement of sale entered into on 2 December 1975 and in terms whereof the plaintiff purported to purchase from the defendant, who purported to sell, certain immovable property. The plaintiff alleges that by virtue of the provisions of s 1 (1) of Act 71 of 1969 the agreement is of no force or effect.

Two main issues arise for determination: firstly, whether the agreement is C invalid; secondly, whether, if it is, the plaintiff is entitled to repayment of the amount claimed. I commence with the issue of invalidity.

The agreement, being one of sale of land, is subject to the provisions of s 1 (1) of Act 71 of 1969. This means that the material terms of the agreement must be in writing. The material term in question in this matter D relates to the description of the land sold, and reads as follows:

"The following stands are sold individually. 1, 2, 3, 20, 21, 22, 23, 24, 25, 27, 30, 31, 63, 64 and 65, 208, 92, 62 and 26, 57, 58 and 32, district of Randburg, measuring approximately 1 600 square metres".

What is not stated is the township in which the stands are situate. The plaintiff alleges that this omission renders the description of what was E sold insufficient and that the agreement is therefore of no force and effect for want of compliance with s 1 (1).

The plaintiff had originally alleged in the summons that the agreement was of no force and effect in terms of the statutory provision referred to because "there is no such property in existence answering to the aforesaid F description, and the property so described is non-existent". During the course of the trial, however, and more particularly at the end of the plaintiff's case and consequent upon an application for absolution being made, the plaintiff was, despite opposition, granted two amendments to the particulars of claim. The effect of the one was to allege an insufficient description of the property sold. I refer to the second amendment later.

G After the grant of these amendments, and at the instance of the defendant, the trial was postponed. The application for absolution has not since been persisted in. Instead, however, at the resumed hearing, the plaintiff not having applied to re-open its case to lead any further evidence and the defendant's plea having been amended in certain respects, Mr Du Toit, on behalf of the defendant, closed the defendant's case. The only evidence H that is, thus, before me is that of the three witnesses who gave evidence for the plaintiff. Certain of this evidence was in relation to the issue of invalidity, and I deal with it shortly.

I am not sure that the effect of the plea as amended is not to admit that the agreement is invalid for want of compliance with s 1 (1), but as this point was not argued I intend to deal with this issue on its merits. The principle to be applied in a matter of this kind was authoritatively re-established in Clements v Simpson 1971 (3) SA 1 (A). If the township

Nestadt J

in which the stands are situate had been stated in the deed of sale it is clear, I think, that there would have been a sufficient description of what was sold. Reference could then have been made to the plan of the A township to identify the particular stands. I am not sure that the absence of any identification of the township automatically and per se renders the description insufficient. There could theoretically, I suppose, be a plan of all stands in Randburg, and, provided there is no duplication in numbers, the stands in question could be identified. That however is not the evidence. On the contrary, the evidence was that there were a number B of townships in Randburg having numbers mentioned in the deed of sale in the present matter. That was the effect of what Mr Kavnat, a conveyancer, and also the plaintiff's attorney of record and Mr Van Zyl, a director of the plaintiff, has said. There is, as I have indicated, nothing to controvert such evidence. This evidence was not objected to. In my view it C was admissible. In the same way as evidence is admissible to resolve a latent ambiguity in this type of contract (Van Niekerk v Smit and Others 1952 (3) SA 17 (T) at 22), evidence is, I consider, admissible to create such an ambiguity. Thus, if the property sold is described as "the red house on the corner of Smith & Jones Streets", evidence would, I consider, D be admissible to show that there are two such houses on the particular corner. Authority for this is to be found in the following dictum of STRATFORD JA in Estate Du Toit v Coronation Syndicate Ltd and Others 1929 AD 219 at 224, where the following is said:

"It may be that the rule as to adequacy of description should be more stringently stated so as to exclude the invoking of any evidence dehors E the document, but for the purpose of this case it is not necessary to say more than that the description must ex facie the document be such as from a reading of it will enable the subject-matter to be identified, and that description must not consist of a reference to and depend upon the evidence of the parties themselves. This does not mean that in no case can evidence be introduced, for, though, from a perusal of the document, the property may appear to be adequately described, nevertheless it may be found in fact to fit more than one property, or the physical facts may introduce uncertainty. Ambiguity of that kind would be latent and F evidence would be permissible to dispel the doubt raised not by the document itself, but outside it."

Mr Du Toit, however, submitted that the evidence did not go far enough to create an ambiguity. He relied in this regard on two identifying features in the contract. The one was a reference to the size of the stands, namely 1 600 square metres, and the other was the reference in clause 11 to the G fact of the properties sold being bonded. His contention was that the evidence did not establish that one could not identify, for example, stand 27 in Randburg, which is 1 600 square metres in size and which is bonded. I did not understand him to rely on the bond to any greater extent. I therefore need not consider the type of case such as Van der Heever v H Vorster and Another 1939 TPD 64 in which the property sold was held to be identifiable by reference to the bond mentioned in the written agreement.

I think the answer to this submission is the following: Once the plaintiff had established that by reason of the existence of a number of townships with similar stand numbers in Randburg, it was for the defendant to show that the stands could, nevertheless, be identified by reference to the two further indiciae. This the defendant failed to do. In any event, I do not think that the defendant can rely on the size of the stands as being 1 600

Nestadt J

square metres each. There is no mention of "each". It may be absurd that the total area of the 22 stands sold be 1 600 square metres, but one is bound by the description as stated in the deed.

In my opinion, therefore, the agreement is invalid by reason of the A insufficient description of what was sold. Before leaving this issue...