Shephard v Tuckers Land and Development Corporation (Pty) Ltd (1)

• Jurisdiction: South Africa
• Judge: Nestadt J
• Judgment Date: 03 February 1977
• Citation: 1978 (1) SA 173 (W)
• Hearing Date: 02 February 1977
• Court: Witwatersrand Local Division

Nestadt, J.:

This is an opposed application for an order declaring a certain written agreement to be of no force and effect and directing the respondent to repay the applicant the sum of R7 654.

At the commencement of the hearing of the matter, Mr. Maisels, on behalf of the respondent, pursuant to a notice which had earlier been filed, moved to strike out firstly a certain portion of the founding affidavit,

Nestadt J

and secondly an affidavit forming part of the applicant's replying affidavits. This application to strike out was resisted on behalf of the applicant by Mr. Morris.

A In terms of the agreement to which I have referred and which was entered into on 30 March 1974 the applicant purchased from the respondent, which sold, certain immovable property in the proposed township of Wonderboom Ext. 6, in regard to which it is alleged the owner had taken steps to establish a township under the Town Planning and Townships Ordinance, 25 B of 1965 (T). The sum of R7 654 represents that portion of the purchase price paid by the applicant to the respondent in terms of the agreement.

The applicant's case is that, having regard to certain provisions of Ord. 25 of 1965, the agreement is void or voidable and that he is therefore entitled to the order sought.

C The Ordinance has been amended from time to time. At the time of the conclusion of the agreement the material portions thereof which I will mention provided as follows:

"Sec. 57 A. (1):

After an owner of land has taken any steps to establish a township D thereon, no person shall, subject to the provisions of sec. 58, enter into any contract for the sale, exchange or disposal in any other manner of an erf in such township, or grant an option to purchase or otherwise acquire any such erf until such township has been declared an approved township.

(3) Any contract entered into in conflict with the provisions of sub-sec. (1) shall be of no force or effect and any person who contravenes the provisions of that sub-section or fails to comply therewith shall be guilty of an offence."

E Sec. 58 sets out the procedure regarding the establishment of a township. It provides in the first instance for the making of an application by the owner of land to the Director of Local Government for permission to establish a township. Sec. 58 (1A) provided:

"No application shall be referred by the Director to the Board as F contemplated in sub-sec. 1 (a) unless the Director is satisfied that such services, as he deems essential for the proper development of the township, can be supplied within a period of not more than three years after the date of such application, and the applicant shall, for this purpose, furnish such information as may be prescribed or required by the Director and the Director shall notify the applicant and the local authority concerned as soon as he is satisfied as aforesaid.

(1B)

After receipt of the notice referred to in sub-sec. (1A):

(a)

the applicant shall if the land is situated within the area of a local authority furnish within a period of three years after the date of the G application a guarantee to the satisfaction of the local authority concerned for the fulfilment of his obligations as previously agreed to by himself and such local authority in respect of the supply of the services referred to in that subsection, and such local authority shall inform the Director as soon as a satisfactory guarantee has been furnished; or

(b)

the applicant shall if the land is not situated within the area H of a local authority satisfy the Director within a period of three years after the date of the application that satisfactory arrangements have been made for the payment of the services referred to in sub-sec. (1A).

(1C)

After the provisions of sub-sec. (1B) have been complied with, the prohibition contained in sec. 57 A. (1) shall no longer apply to the township concerned but any document embodying a contract referred to in that section shall contain a clause that the township is not an approved township.

(1D)

Any contract entered into in conflict with the provisions of sub-sec. (1C) shall be voidable at the instance of the purchaser or other person to whom the erf has been disposed of.

Nestadt J

(1E)

Any person who sells or otherwise disposes of an erf in conflict with the provisions of sub-sec. (1C) shall be guilty of an offence."

Sec. 58 (1B) as it read at the relevant time is the same as sec. 58 (11) as it existed prior to its amendment by Ord. 18 of 1974. Similarly, sec. A 58 (1C) as it existed at the time of the agreement is in the same terms as sec. 58 (12) prior to its amendment in 1974 and a similar position applies in relation to sec. 58 (1D), its equivalent being, or having been sec. 58 (13). I mention this because in the papers and during the course of argument and during the course of this judgment mention was made and will B be made of secs. 58 (11), (12) and (13). It is necessary at this stage to refer in some detail to what is alleged in applicant's affidavits and also in the respondent's answering affidavit. In the founding affidavit the following is, inter alia, alleged:

"Para. 7. At the date of the said agreement, the proposed township in which the land sold in terms thereof was situated had not been C declared an approved township in terms of sec. 69 of the said Ordinance.

Para. 8. The said agreement did not contain a clause that the township was not an approved township as required by sec. 58 (12) of the said Ordinance and accordingly I am entitled to void the contract which I hereby elect to do in terms of sec. 58 (13) of the said Ordinance.

Para. 9. It is furthermore respectfully submitted that in the premises the contract is of no force and effect by virtue of the D provisions of sec. 57 A. (3) and I am entitled to a refund of all monies paid to the respondent in terms of the said void agreement. My attorneys in terms of the letter dated 15 September 1976 advised respondent that I considered the said agreement invalid, and I respectfully refer to a copy of the relevant letter annexed marked B. In reply respondent's attorneys indicated that the respondent considered the agreement to be valid, refused to make repayment of the sum claimed or any other amount and demanded payment of E the balance outstanding. In this regard I annex a copy of a letter dated 13 October 1976 addressed to my attorneys and marked C."

The relevant part of annexure B reads as follows:

"Regarding your demand that our client pay the sum of R9 022,90 which your clients allege are arrear instalments owing in respect of the sale of various Wonderboom erven, we have to advise that our client is not obliged to pay this sum, or any other amount, in view of the fact that the sale is of no force and effect as it contravenes the provisions of sec. 57 A. of F the Town Planning and Townships Ordinance, 25 of 1965, as amended. In particular investigations have revealed that the prohibition contained in sec. 57 A. was in effect until 4 April 1974, the date on which the provisions of sub-sec. (1B) of see. 58 of that Ordinance were complied with. In the circumstances our client is entitled to a refund of the...