Smit v Van Tonder

• Judge: Kuper J and Cillie J
• Judgment Date: 13 December 1956
• Citation: 1957 (1) SA 421 (T)
• Hearing Date: 30 November 1956
• Court: Transvaal Provincial Division

Kuper, J.:

On the 3rd August, 1955, the parties entered into a written agreement of sale in terms whereof the plaintiff purchased a farm and A farming implements from the defendant. The relevant terms of the deed of sale read as follows:

1. Verkoopster verkoop hiermee aan koper wat koop, gedeelte A van die plaas Bronkhorstfontein nr. 177, distrik van Pretoria, groot 200.0018 morge, tesame met die volgende plaasgereedskap . . .

3. Die koopprys van genoemde vaste eiendom sal die som van £11,500 wees as volg betaalbaar: £3,200 by ondertekening hiervan en die balans van £8,300 op 1 September 1955.

4. Die koopprys van bogenoemde plaasgereedskap sal die som van £1,500 B wees betaalbaar by ondertekening hiervan.

8. Indien die koper op enige wyse enige die terme van hierdie ooreenkoms verbreek, sal die verkoopster die reg hê om die ooreenkoms onmiddelik te kanselleer en alle reeds betaalde gelde sal deur die koper as roukoop verbeur word.

It appears that the plaintiff duly paid the initial sums referred to in C the agreement, namely £3,200, on account of the purchase price of the farm and £1,500, the purchase price of the movables, and he took occupation of the farm. The sale was however cancelled by the defendant in the circumstances described later herein, and the defendant obtained an order in this Court for the ejectment of the plaintiff from the farm. Arising out of this transaction and the cancellation, the plaintiff D instituted an action against the defendant setting out certain claims in the alternative, in the form of a main declaration, an alternative declaration and a further alternative declaration. The defendant has excepted to each declaration on the ground that it does not disclose a cause of action and/or that it is vague and embarrassing.

E The following paragraphs of the main declaration are relevant to the consideration of the exception taken to that declaration:

'5. On the 4th August, 1955, plaintiff paid a further sum of £2,300 to one W. J. Basson who undertook to retain such monies and not to pay them over to the defendant until the 1st day of September, 1955. The said sum of £2,300 was paid over by the said W. J. Basson to the defendant upon or after the 1st day of September, 1955, and the defendant accepted such money in part payment of the purchase price aforesaid, thus leaving a F balance of £6,000 due and unpaid.

6. (a) On the 4th day of October, 1955, the defendant purporting to rely on the said clause 8 of the said agreement and on plaintiff's failure to pay the full balance of the purchase price of the said farm, to wit the sum of £8,300 on the 1st September, 1955, in writing cancelled the said agreement and refused and still refuses to return to the plaintiff the sum of £5,500 paid by her to the plaintiff or any part thereof.

(b) On the 13th December, 1955, in furtherance of the said purported cancellation of the said agreement, the defendant obtained an order of G ejectment against the plaintiff in the Supreme Court of South Africa (Transvaal Provincial Division) and resumed possession of the said farm.

(c) Subsequently the defendant resold the said farm to another person.

7. The provisions of the said clause 8 of the agreement read with the other clauses of the said agreement constitute a penalty and are null and void and unenforceable at law.'

H The plaintiff claimed a declaration that the provisions of clause 8 constituted a penalty and repayment of the sum of £5,500. It was common cause that if the principle stated in the case of Jonker v Yzelle, 1948 (2) SA 942 (T), applied to the terms of the agreement the exception should succeed. The facts in that case were that the purchaser entered into a written deed of sale with the seller in terms

Kuper J

whereof he purchased a piece of ground with buildings thereon for the sum of £1,800 payable as to £200 on execution of the deed, a further £200 on the 30th October, 1946, and the balance in monthly instalments of not less than £10 with interest. Then followed a provision which read

A 'indien die koper in gebreke bly met enige van sy verpligtings kragtens hierdie ooreenkoms, sal die verkoper die reg hê om hierdie ooreenkoms te kanselleer en gevolglik sal die koper alle bedrae deur hom reeds betaal, verbeur as skadevergoeding.'

There were further conditions as in the instant case, imposing obligations on the purchaser. The purchaser paid the first instalment of B £200 but failed to pay any further...