Scheepers v Handley

• Jurisdiction: South Africa
• Judge: Schreiner JA, De Beer JA, Ogilvie Thompson JA, Botha AJA and Holmes AJA
• Judgment Date: 01 April 1960
• Citation: 1960 (3) SA 54 (A)
• Hearing Date: 21 March 1960
• Court: Appellate Division

Ogilvie Thompson, J.A.:

Appellant appeals against the decision of the Eastern Cape Division awarding respondent the sum of £2,310 as damages, G together with the amount of transfer duty paid on that sum and costs of suit. This litigation flows from the sale by appellant to respondent for £16,010 of the farm 'Lansdowne', situate in the division of Albany. The sale, which took place on 30th March, 1954, was by public auction. The written conditions of sale, which were read out in the usual way before the bidding commenced, described the property sold as follows:

H '1. Certain piece of quitrent land - payment of which quitrent has been abolished in terms of Act 54 of 1934 - situate in the division of Albany, being the remaining extent of the farm Lansdowne, formerly known as Klip Heuvel.

Measuring seven hundred and sixty-seven decimal nine eight five nine (767.9859) morgen.

As per deed of transfer 11449 dated 28th December 1935 in favour of Martinus Esias Janse Scheepers.

2. Certain piece of abolished quitrent land situate in the Division of Albany, being the remaining extent of the farm 'Roodekop'.

Ogilvie Thompson JA

Measuring two hundred and twenty-nine morgen (229), one hundred and eighty eight (188) square roods.

As per deed of transfer 7232 dated 30th April, 1947 in favour of Martinus Esias Janse Scheepers.'

The conditions of sale also contained a voetstoots clause couched in the following terms:

A 'The property is sold in every respect as it now stands, voetstoots, as to its extent such as it lies and subject to and with the benefit of any existing servitudes, whether registered or not, and the seller will not benefit by any eventual excess, neither will the seller be answerable for any possible deficiency in the extent thereof, for any possible latent or patent defects should they later be found to exist, or for any error of description.'

B In his declaration claiming £3,696 damages (as also the transfer duty paid thereon and certain survey expenses) respondent relied both upon the representation, contained in the conditions of sale as quoted above, that the extent of the property sold was 997 morgen in extent and upon a verbal representation to the same effect made by appellant immediately C before bidding commenced at the action sale. These representations, respondent averred in his declaration, were false to the knowledge of appellant in that the true extent of the property was only 766 morgen. During the trial respondent was allowed to amend his declaration by adding an alternative averment to the effect that the aforementioned representations, if not fraudulently made, had been made negligently.

D In his plea appellant admitted the representation contained in the conditions of sale, but as regards the alleged verbal representations pleaded that he

'cannot remember and therefore has no knowledge as to whether prior to the said sale he personally made the said representations but does not admit this and puts the plaintiff to the proof thereof.'

E Appellant pleaded further that he had no knowledge that the representations relied upon by respondent were false, but that, in any event, 'at such times as they were made he honestly believed in the truth thereof'.

At the trial appellant, although admitting that he might, prior to the F sale, have mentioned the figure 997 morgen, denied having made any verbal representation to that effect immediately before the auction. On this issue of fact the trial Court found in favour of respondent. In disposing of this question, the learned trial Judge (DE VILLIERS, J.P.) said:

'I have no doubt that this episode did take place as described by those witnesses. I have further no doubt that the defendant has not forgotten G this and that his denial is deliberately untruthful.'

The trial Court also found that the true extent of the property was 766 morgen and that appellant's representations as contained in the conditions of sale and as made verbally immediately prior to the sale, were to appellant's knowledge false at the time they were made. As H already indicated, the trial Court awarded the sum of £2,310 damages together with the amount of transfer duty paid in respect of £2,310 of the...