Starr v Ramnath and Others

• Jurisdiction: South Africa
• Judge: Broome JP, Selke J and Shaw J
• Judgment Date: 26 January 1954
• Hearing Date: 20 October 1953
• Court: Natal Provincial Division

Broome, J.P.:

This is an appeal from an order by HOLMES, J., in the Durban and Coast Local Division interdicting the appellant from selling

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certain land to anyone other than the present respondents. The relevant facts are set out in the judgment a quo, from which it appears that the grant of the interdict was opposed upon the three grounds which have been advanced in this Court in support of the appeal. I am in general agreement with the judgment of HOLMES, J., rejecting those grounds, but I propose to deal briefly with them.

A The first ground relates to Law 12 of 1884. The case made by the present respondents, who are Indians, is that they verbally bought certain land from appellant, a European, for £6,000, subject to the issue of a permit under the Group Areas Act. In order to satisfy sec. 1 of Law 12 of 1884, they rely upon the form of application to the Minister for the necessary permit which gives their names as 'applicant (intended purchaser and/or occupier)', describes the land and is signed B by the appellant who, as registered owner, certifies the correctness of the information contained therein. The application form does not mention the purchase price. The permit was granted authorising 'a member of the Indian group' to acquire and occupy the property. The case for an interdict made by the present respondents was that appellant had repudiated the sale and was about to sell to a third party, also an C Indian. Mr. Warner, for the appellant argued that the verbal agreement of sale was not sufficiently 'evidenced' by the form of application signed by the appellant, and that sec. 1 of Law 12 of 1884 would therefore bar any action to enforce it. Now it is well settled that the section does not require the writing to set out all the terms of the contract; it requires merely that the contract shall be 'evidenced' by the writing. See Amod v Parsotham and Others, 1929 NPD 163 at p. D 169. But Mr. Warner submits that 'evidenced' means 'proved'. If by that he means that all the terms of the contract must be proved by the writing, the submission is clearly in the teeth of Amod's case, supra, and cannot be supported. If 'evidenced' means 'proved', what is it that the writing must prove? Is it the existence of the contract? If so, the E existence of what contract? Not the contract in question, because that cannot possibly be proved without proving all its terms. Must the writing merely prove the existence of some contract? I hardly think that this was the intention of the Legislature, and in any event the decision of this Court in the case of Reynolds v Jones, 1913 NPD 155 at p. F 159, would appear to negative such an intention. To give the word 'evidenced' the meaning of 'proved' involves, in my opinion, too many difficulties, notwithstanding that 'proved' is one of the primary meanings of the word. But the verb 'evidence' may also mean 'to serve as evidence for', and the noun 'evidence' may mean not only 'proof' but also 'information given in a legal investigation to establish the fact in question', and this is the ordinary legal meaning of the word. See G Oxford English Dictionary. If we read 'evidenced' in this sense, the section would require that the writing should tend to establish or assist in establishing the contract in question. This means something more than that the writing should be a fact relevant to the issue of the existence of the contract; it must not only be a relevant fact but a fact of some probative value - just how much it is impossible to say. In my opinion, the section uses the word in this sense.

H But Mr. Warner also argued that the application form was at the most merely consistent with the contract's existence and equally consistent with its non-existence. He pointed out that the respondents were described as 'intended purchasers', not as 'purchasers' But the sale alleged by respondents was a sale subject to the issue of a permit, a sale without permit being void; this circumstance would explain the

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use of the word 'intended'. So far as it is possible to judge at this stage, I am not satisfied that the application form is equally consistent with either view. When the respondents set about the proof of the verbal contract, the application form will probably be a fact of some probative value in their case. By resisting the interdict upon the legal ground of Law 12 of 1884, Mr. Warner undertakes to satisfy the Court that the application form, signed by appellant, will have no A probative value upon the issue of the contract upon which respondents rely. He has failed to do so. He has not shown that the verbal contract relied upon is not evidenced by the writing.

Before I leave this part of the case I have two further observations to make. First, there is much to be said for the view expressed, obiter, by SOLOMON, J.A., in his dissenting judgment in Jones v Reynolds, 1913 B A.D. 366 at p. 374, cf. the remarks of SELKE, J., in Mahomed v Ghoogaree, 1943 NPD 349 at p. 352, that the proper time for considering the applicability of Law 12 of 1884 is at the trial. With all the facts before it, the Court would then be in a much better position than at any earlier stage to consider the probative value of the writing. When the question is raised on exception, the excipient C undertakes the heavy burden of satisfying the Court that the writing in question could have no probative value. Mr. Warner undertakes a somewhat similar burden here, except in one respect, which is the subject of my second observation. An examination of the judgment in Reynolds' case in the Provincial Division reveals that an offer to lease, signed by the person sought to be bound, was held not to evidence a contract of D letting and hiring, but this conclusion was arrived at after all the evidence had been heard at the trial. Thus the Court regarded the writing, in its context of all the other proved facts, as of no probative value to the party seeking to establish the contract. But I very much doubt whether the Court could have come to that conclusion if the point had been raised on exception. Similarly, in the present case, E the Court might very well hold, when it comes to consider the writing in its full context, that it has no probative value. But at the present early stage, looking at the writing more or less in vacuo, it cannot come to that conclusion. Accordingly, the Court cannot now decide that sec. 1 of Law 12 of 1884 bars respondents from maintaining an action on the verbal contract of sale which they allege.

F My second observation is that Mr. Warner's position in this case differs from that of an excipient invoking Law 12 of 1884 in this respect: the possible effect of Law 12 of 1884 upon the sale which respondents allege will be a relevant factor when we come to consider his third point, viz. that this is not the sort of case in which the extraordinary remedy of an interdict ought to have been granted.

G The second ground of appeal is that the Court a quo ought to have held that the agreement alleged by the present respondents was prohibited by sec. 8 (1) of Act 41 of 1950, the Group Areas Act. The agreement alleged is an agreement for the purchase by respondents from appellant of land in a controlled area, but subject to the issue of the necessary permit. A similar agreement subject to a similar suspensive condition relating to the issue of a permit was held by the Appellate Division not to be H prohibited by sec. 5 of Act 35 of 1943, which was then in force. See Corondimas and Another v Badat, 1946 AD 548. Act 35 of 1943 was, the day before judgment was given in Corondimas' case, replaced by Act 28 of 1946, sec. 2 of which was the counterpart of sec. 5 of the previous Act. The new section closely followed (so far as is at present material) the wording of the old, and there can be no

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doubt that Corondimas' case would still have been authorative as to the effect of sec. 2 of the 1946 Act upon an agreement such as was considered in that case. The 1946 Act was in turn replaced by Act 41 of 1950, the corresponding section being sec. 8 (1), reading as follows:

'8. (1) No person shall, except under the authority of a permit enter into any agreement, whether on his own behalf or on behalf or in the interest of any other person, in terms whereof any disqualified person A or any disqualified company acquires or purports to acquire or would acquire any immovable property situate in the controlled area.'

This section differs from the two previous sections (so far as is at present material) in the addition of the words 'or...