Trotman and Another v Edwick

• Jurisdiction: South Africa
• Judge: van Den Heever JA, Hoexter JA, and Fagan JA
• Judgment Date: 27 November 1950
• Court: Appellate Division

Van den Heever, J.A.:

This is an appeal from a judgment of SEARLE, J., in an action in the Cape Provincial Division. Appellants as the sellers F of the property known as Aunaghmore and Magdala Mount in Muizenberg brought an action against respondent as buyer to take transfer of the said property against payment of £12,150 being the balance of the purchase price. In reconvention respondent claimed from appellants damages in the amount of £2,500 on the ground that they had induced him G by fraudulent misrepresentations to purchase the property. When the action commenced respondent had taken transfer and the only issue remaining for trial was the claim in reconvention. Respondent also claimed the value of some movables alleged to have been sold and not delivered to him, but it is sufficient for the purposes of this judgment H merely to mention that fact. For convenience I propose henceforth to refer to respondent as the plaintiff and to appellants as the defendants.

The facts averred by plaintiff in the pleadings are these: on the 6th January, 1949 defendants, who are married to each other out of community of property, sold to plaintiff a piece of land with two flats on it for £11,212 10s. 0d. The flats are enclosed by a garden wall and are built upon land which at the time of the sale

Van den Heever JA

was registered in the names of defendants, but two-sevenths of the land enclosed by the garden wall belongs to the City of Cape Town and had been leased to defendant's predecessor in title at a nominal yearly A rental. At all material times defendants occupied the two pieces of land as a whole, using the municipal land as a garden and for the purpose of gaining access to the upper flat. At all material times defendants were aware of the fact that the ground referred to belonged to the Municipality. During the negotiations leading up to the sale the B first defendant acting on his own behalf and as duly authorised agent for his wife represented to plaintiff by words and conduct that all the land enclosed by the garden wall was their property which they were offering for sale. Relying upon these false and fraudulent representations, which were material and induced him to do so, plaintiff C signed a deed of sale in the belief that he was buying the land enclosed in the garden wall, whereas what he bought was the enclosed area less the municipal land. The value of the property sold is £2,500 less than the purchase price which the plaintiff agreed to pay. He therefore claimed that amount as damages.

D Defendants pleaded that prior to the conclusion of the sale plaintiff was told that there was a nominal yearly payment due to the Cape Town City Council for the use of a small portion of land over which a pathway ran to defendant's ground and that it was not likely that the Council E would ever require it and that there was no further mention of any land prior to the sale that eventuated. They denied the intention to defraud and invoked a special clause contained in the deed of sale:

'The seller sells the land as it was held by him' (which was fully described in the deed of transfer and diagram) 'without any warranty express or implied as to its extent and subject to all conditions as F are contained in the deed of transfer, etc.'

After reviewing the pleadings the learned trial Judge observed:

'The plaintiff's claim as to the immovable property has a twofold basis, namely that he was induced to enter into the contract (A) by the fraudulent conduct of defendants in not disclosing that the land to which they had title and which they were selling did not include G the municipal strip, and (B) by the fraudulent verbal misrepresentations of the first defendant as to the dimensions of the land which formed the subject matter of the sale.'

Although it cannot affect the decision of this case it is clear that the learned Judge misunderstood the true intent and import of a paragraph in the pleadings. After...