Tompkins v Goltz

• Jurisdiction: South Africa
• Citation: 1978 (1) SA 88 (W)

Tompkins v Goltz
1978 (1) SA 88 (W)

1978 (1) SA p88

Citation	1978 (1) SA 88 (W)
Court	Witwatersrand Local Division
Judge	Van Reenen J
Heard	August 5, 1976
Judgment	September 20, 1976

Flynote : Sleutelwoorde A

Sale — Of immovable property — Sale of Land on Instalments Act, 72 of 1971 — Purpose of Act to protect purchaser — Seller may waive requirements of a B demand to furnish statement of account under sec. 9 (2) of Act.

Headnote : Kopnota

The purpose of the Sale of Land on Instalments Act, 72 of 1971, is to protect the purchaser buying property on terms.

A seller of land under the Act may waive the requirement in section 9 (2) C of the Act that the purchaser must first demand a statement before he can be penalised by loss of interest for failing to supply the statement.

Case Information

Application for a declaratory order and other ancillary relief. The facts appear from the reasons for judgment.

D. S. Levy, for the applicant.

R. M. Wise, for the respondent. D

Cur adv vult.

Postea (September 20). E

Judgment

Van Reenen, J.:

The Sale of Land on Instalments Act, 72 of 1971, has been instanced as another example of the classic plaint "ex Africa semper aliquid novi " (Belcher; Norman's Purchase and Sale in South Africa, 4th ed., p. 125). Although, according to Van Rensburg (1973 T.H.R.H.R., p. 340) it presents numerous interpretational problems, it seems to be generally accepted that the purpose of this Act is to protect the F purchaser buying property on terms. (See Belcher, loc. cit., Van Rensburg, loc. cit.) This was accepted by both counsel appearing in this matter, which concerns such a transaction and therefore falls within the ambit of the Act. That the object is indeed to protect such a purchaser appears, inter alia, from the following provisions of the Act:

(1)

the purchaser may choose the G official language in which the contract is to be drawn (sec. 3);

(2)

the seller must hand over or deliver by registered post, pre-paid, a true copy of the agreement free of charge within one month of the conclusion of the contract (sec. 5 (1));

(3)

the seller's selling agent H may not be appointed as the purchaser's agent (sec. 7 (a));

(4)

the forfeiture by the purchaser of any claim for useful improvements is prohibited (sec. 7 (b));

(5)

a waiver of the warranty against eviction is prohibited (sec. 7 (c));

(6)

the contract may not impose an obligation on the purchaser to take transfer before due date unless the seller undertakes to arrange a mortgage bond in terms not more onerous than they would be when the due date arrived (sec. 7 (d))

1978 (1) SA p89

Van Reenen J

Furthermore, sec. 4 prescribes a number of provisions which must be inserted in every such contract of sale, most, if not all, of them designed to inform the purchaser fully of his rights and obligations under the contract. And then there is the provision of sec. 9, with which we are A particularly concerned in this case. This section reads as follows:

"9.

Statement of account.

(1)

While a contract is in force the seller shall once during every period of 12 months calculated from the date of the contract, furnish the purchaser with a statement of account free of charge in which shall be indicated, in the case of the first statement, the purchase price and other costs separately which were owing in B terms of the contract at the date of the contract, or, in the case of any other statements, the outstanding balance which was owing in terms of the contract at the date of the previous statement, and, in the case of all statements, the interest and other costs which accrued in terms of the contract during the period covered by the statement and the allocation, in respect of capital, C interest and other costs separately, of amounts paid during that period.

(2)

If in respect of any statement of account the seller fails to comply with the provisions of sub-sec. (1) and if he remains in default for more than one month to furnish that statement of account to the purchaser after the purchaser has in writing asked him therefor, the purchaser shall not be liable for the payment of interest under the contract from the date on which the said one D month expires to the date of the receipt by the purchaser of the statement of account concerned."

On 29 March 1974 the applicant and the respondent signed a deed of sale whereby the applicant purchased stand 369, Boksburg, from the respondent. It is common cause that this sale falls within the ambit of Act 72 of 1971. It is evident from a perusal of the written agreement that the seller's attorney who drew the agreement used a ready-to-hand form in E which the particulars relating to this sale were entered. The only provisions of this agreement...