Van Aardt v Galway

• Jurisdiction: South Africa

Van Aardt v Galway
2012 (2) SA 312 (SCA)

2012 (2) SA p312

Citation	2012 (2) SA 312 (SCA)
Case No	923/10; [2011] ZASCA 201
Court	Supreme Court of Appeal
Judge	Ponnan JA, Shongwe JA and Wallis JA
Heard	November 3, 2011
Judgment	November 24, 2011
Counsel	EAS Ford SC (with him ML Beard) for the appellant.; Johann Gautschi SC for the respondent.

Flynote : Sleutelwoorde B

Land — Sale — Contract — Formalities — Description of res vendita — Whether description sufficient — Lease agreement containing option to purchase 'the farm property' — Farm identifiable from rest of lease agreement read with title deed — Property adequately described — Alienation of Land Act 68 of 1981, s 2(1). C

Land — Sale — Option to purchase leased property — Lease agreement stipulating that option to be exercised by delivery of signed agreement of sale in terms prescribed by option — No fresh process of negotiation around terms of sale envisaged — Deed of sale would reflect terms of sale set out in option — Option not constituting unenforceable agreement to agree in D future — Valid option validly exercised resulting in binding agreement of sale.

Appeal — Costs — Appeal record burdened by substantial number of irrelevant documents — Failure by legal representatives of parties to act in terms of rules of court — Counsel's practice note to provide list reflecting those parts of record that in opinion of counsel are necessary for determination of E appeal — Costs of preparation, perusal and copying of record limited to two-thirds of costs incurred in those tasks — Supreme Court of Appeal Rules, rule 10A.

Headnote : Kopnota

The appellant, a dairy farmer, leased a neighbouring farm for the purpose of F dairy farming from the respondent. The lease agreement contained an option to purchase 'the farm property'. The appellant purported to exercise this option, but the respondent disputed his right to do so. The appellant commenced proceedings in the High Court to compel the respondent to transfer the farm to him. The appellant's claim was dismissed. On appeal, the court had to decide whether the option complied with s 2(1) of the Alienation of Land Act 68 of 1981, which required the provisions of a deed G of alienation of immovable property to be in writing and signed by or on behalf of the parties thereto.

Held: As to the respondent's contention that the property the subject of the potential sale was insufficiently described so that the clause was void for vagueness: There was an identifiable farm. Evidence of identification of the H farm could have been led for the reason that it served to identify the thing corresponding to the idea expressed in the words of the written contract. The parties were agreed that the farm Midhurst was the farm owned by the respondent, the detailed description of which was set out in the deed of transfer. The appellant was leasing the farm as a dairy farm, hence the agreement made it clear that the dairy and its equipment were leased together with the farm property. The property was adequately described I without any confusion and accordingly the option was not void for vagueness. Provided it was exercised in its terms, the ensuing contract would comply with s 2(1) of the Act with regard to the description of the property sold. (Paragraphs [11] and [13] – [14] at 319C – D and 319H – 320A.)

Held: As to the respondent's contention that a process of agreement on the terms of a sale agreement would have to take place before any final contract came J into existence: If the exercise of the option would serve to commence a fresh

2012 (2) SA p313

process of negotiation around the terms of a sale agreement, that would A render it an agreement to agree in the future, which on well-established authority was not binding. What was intended by the option, in the present case, was that a deed of sale would be prepared that would reflect the terms of sale, express or implied, as set out in the option itself. (Paragraphs [16] – [17] at 320E – 321E.)

Held: As to the respondent's contention that the agreement of sale contained B material provisions dealing with matters not covered by the option and that these differences amounted to a counter-offer that the respondent was not obliged to accept: The exercise of the option as embodied in the deed of sale was strictly in accordance with the terms of the option. It therefore did not amount to a counter-offer to contract on different terms. There was a valid C option and a valid exercise of the option. That brought into existence a binding agreement of purchase and sale of the farm property. Once that occurred it was permissible for the court to order the rectification of the agreement so that it correctly reflected the description of the property. (Paragraph [30] at 325E – H.)

Held: As to the approach of counsel to compliance with certain of the requirements D of rule 10A of the Supreme Court of Appeal Rules: Rule 10A(ix) enjoined counsel to provide a list reflecting those parts of the record that in the opinion of counsel were necessary for the determination of the appeal. The list had to include only those parts of the record that counsel was likely to refer to either in support of the argument, or in rebuttal, or to highlight flaws in the judgment appealed against. The list had to identify by reference to volumes and pages where those parts of the record were to be found. Very E little regard had been had to the rules of the court and the true issues in the case in preparing the record. Had both parties observed the rules, at least 400 – 450 pages would not have been in the record and that would have reduced the costs substantially. The appeal was upheld with costs, save that the costs of the preparation, perusal and copying of the record were limited to two-thirds of the costs incurred in those tasks. (Paragraphs [31], [33] – [34], [36] and [40] at 326E – 327B, 327D – H and 328G – 329C.) F

Cases Considered

Annotations:

Reported cases

Southern Africa G

Africa Solar (Pty) Ltd v Divwatt (Pty) Ltd 2002 (4) SA 681 (SCA): referred to

Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration 1974 (3) SA 506 (A): referred to

Boerne v Harris 1949 (1) SA 793 (A): referred to

Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd and Another H 1998 (3) SA 938 (SCA) ([1998] 3 All SA 175): dictum in para [36] applied

Clements v Simpson 1971 (3) SA 1 (A): referred to

Delmas Milling Co Ltd v Du Plessis 1955 (3) SA 447 (A): dictum at 454G – H applied

Dold v Bester 1984 (1) SA 365 (D): dictum at 370H applied I

Du Plessis NO and Another v Goldco Motor & Cycle Supplies (Pty) Ltd 2009 (6) SA 617 (SCA): dictum in paras [14] – [17] applied

Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC): referred to

Genna-Wae Properties (Pty) Ltd v Medio-Tronics (Natal) (Pty) Ltd 1995 (2) SA 926 (A): referred to J

2012 (2) SA p314

JR 209 Investments (Pty) Ltd and Another v Pine Villa Country Estate (Pty) Ltd; Pine Villa Country Estate (Pty) Ltd v JR 209 Investments (Pty) Ltd 2009 (4) SA 302 (SCA) ([2009] 3 All SA 32): referred to A

Johnston v Leal 1980 (3) SA 927 (A): referred to

Joubert v Enslin 1910 AD 6: referred to

King v Potgieter 1950 (3) SA 7 (T): referred to

KPMG Chartered Accountants (SA) v Securefin Ltd and Another 2009 (4) SA 399 (SCA) ([2009] 2 All SA 523): dicta in paras [38] – [41] applied B

Practice Direction 1997 (3) SA 345 (SCA): referred to

Practice Directions 2007 (6) SA 1 (SCA): referred to

Premier, Free State, and Others v Firechem Free State (Pty) Ltd 2000 (4) SA 413 (SCA) ([2000] 3 All SA 247): applied

Rockbreakers and Parts (Pty) Ltd v Rolag Property Trading (Pty) Ltd 2010 (2) SA 400 (SCA): referred to C

South African Maritime Safety Authority v McKenzie 2010 (3) SA 601 (SCA): referred to

Standard-Vacuum Refining Co of SA (Pty) Ltd v Durban City Council 1961 (2) SA 669 (A): referred to

Strydom v Duvenhage NO en 'n Ander 1998 (4) SA 1037 (SCA): dictum at 1045C – D applied D

Theatre Investments (Pty) Ltd and Another v Butcher Brothers Ltd 1978 (3) SA 682 (A): referred to

Van Wyk v Rottcher's Saw Mills (Pty) Ltd 1948 (1) SA 983 (A): dicta at 990 – 991 applied.

England E

Attorney General of Belize and Others v Belize Telecom Ltd and Another [2009] 2 All ER 1127 (PC) ([2009] UKPC 11): referred to.

Statutes Considered

Statutes

F The Alienation of Land Act 68 of 1981, s 2(1): see Juta's Statutes of South Africa 2010/11 vol 2 at 1-835.

Rules Considered

Rules of court

Supreme Court of Appeal Rules, rule 10A: see The Supreme Court Act and the Magistrates' Courts Act and Rules (Juta 2012) at 133.

Case Information

G Appeal against a decision in the Eastern Cape High Court, Grahamstown (Jones J).

EAS Ford SC (with him ML Beard) for the appellant.

Johann Gautschi SC for the respondent.

Cur adv vult. H

Postea (November 24).

Order

I The appeal is upheld with costs, save that the costs of the preparation, perusal and copying of the record shall be limited to two-thirds of the costs incurred in those tasks. The order of the trial court is set aside and replaced by the following:

'1.

Paragraph 1 of the Agreement of Lease between the parties concluded on 31 August 2000 and para 1 of the Deed of Sale, J annexure C to the particulars of claim, are rectified by the

2012 (2) SA p315

deletion of the words the District of Grahamstown more fully A described as Portion 9 (a portion of Portion 5) of the farm Sevenfountain No 447 in the former and the deletion of the words Portion 9 (a portion of Portion 5) of the farm Seven Fountains No 447 in the latter.

2.

Against the tenders set out in para 13 of the particulars of claim B it is ordered that:

(a)

the defendant is forthwith to take all steps necessary to transfer...