Tuckers Land and Development Corporation (Pty) Ltd v Kruger

• Jurisdiction: South Africa
• Judge: Van Blerk JA, Holmes JA, Wessels JA, Potgieter JA and Rabie JA
• Judgment Date: 04 September 1973
• Citation: 1973 (4) SA 741 (A)
• Hearing Date: 15 August 1973
• Court: Appellate Division

Wessels, J.A.:

A In this matter the appellant appeals against the judgment of SNYMAN, J., in the Transvaal Provincial Division (vide 1973 (2) SA 532). For the sake of convenience I shall refer to appellant and respondent as defendant and plaintiff respectively.

B The factual background to the litigation between the parties may be briefly summarised as follows. On 4th January, 1968 defendant applied in writing, in terms of the provisions of sec. 58 (1) of the Town Planning and Townships Ordinance, 25 of 1965 (T), for permission to establish a township, to be called Wierda Park Extension 2, on land situate in the C district of Pretoria. On 29th May, 1970, plaintiff and defendant entered into a written contract which purports to be an agreement of purchase and sale in regard to 25 stands in the proposed township. The matter was dealt with before the Court a quo upon the footing that the contract was one to which the provisions of sec. 1 (1) of Act 71 of 1969 D applied. The agreement in question is, however, in substance one of exchange; the plaintiff undertook to deliver to defendant shares in a company in exchange for the 25 stands. The inappropriate terminology employed in the agreement does not, in my opinion, bear materially upon the issues which require determination in this appeal.

After reciting that defendant 'has laid out a township' known as Wierda E Park Extension 2, and that 'the plan of the township has been prepared by town planners... with which plan the purchaser' (i.e. plaintiff) 'declares itself to be acquainted', the contract provides as follows in clauses 1, 2, 4 and 5 thereof:

'1.

That the seller hereby sells to the purchaser who hereby purchases, those stands numbered and detailed in the schedule annexed hereto, marked 'A', measuring as therein indicated, in F the township of Wierda Park Extension 2. The location of the said stands is as reflected in the plan referred to in the preamble hereof.

2.

That the purchase consideration for the property purchased in terms of this agreement shall be paid and discharged by the delivery of 44 000 fully paid-up ordinary shares in the company known as Spectro Research Laboratories Ltd.

4.

That the purchaser agrees to be bound by condition numbers 1, 3, 4, 5, 6, 7 (as altered), 8, 11 (as altered) and 12, of the G attached Wierda Park Extension 2 memorandum of agreement of sale, as if such clauses were inserted in this agreement, a copy of which is attached hereto.

5.

This whole agreement is subject to the condition that, should the township of Wierda Park Extension 2 not be proclaimed within two years of date of signature, the purchaser shall be entitled to return any or all of the properties sold hereby, to the sellers, on the condition that the sellers pay an amount of R3 500 per property, in cash to the purchaser.'

H The 'memorandum of agreement of sale' referred to in clause 4 above, is apparently a copy of the agreement usually applicable where defendant sells stands in the proposed township to purchasers thereof. For present purposes, it suffices to set out clauses 3, 4, 5 and 6 thereof. They read as follows:

'3.

That the purchaser agrees to accept...