Van Leeuwen Pipe and Tube (Pty) Ltd v Mulroy and Another

• Jurisdiction: South Africa
• Judge: Nienaber J
• Judgment Date: 17 April 1985
• Citation: 1985 (3) SA 396 (D)
• Hearing Date: 21 March 1985
• Court: Durban and Coast Local Division

Nienaber J:

The plaintiff sues the first defendant for the re-transfer of an immovable property which it had sold to him during January 1983. The claim is founded on an earlier oral D agreement which provides for a contingent re-transfer of the property and repayment of the price. The first defendant pleads, inter alia, that the oral agreement, in the terms alleged by the plaintiff, fails for want of compliance with the provisions of s 2 (1) of the Alienation of Land Act 68 of 1981. This is an exception by the plaintiff against that portion of E the first defendant's plea.

The parties entered into the oral agreement on 24 November 1982. Its conclusion is not in dispute but the terms are. As the pleadings have unfolded the first defendant, for the purpose of testing the legal validity of the plaintiff's claim, appears to accept the correctness of the plaintiff's factual allegations. These allegations are that the plaintiff expressly agreed to sell and transfer the property to the first defendant F for R63 000 and the first defendant agreed to work for the plaintiff for at least two years from 1 November 1982 - presumably at an agreed salary. The crucial term is formulated in para 6 of the particulars of claim. It reads:

"It was an express, alternatively, an implied, term of the said oral agreement that, if the first defendant were to G fail to work for the plaintiff for the said period of two years, the first defendant would transfer ownership of the said immovable property back to the plaintiff against the repayment by the plaintiff to the first defendant of the purchase price paid by the first defendant to the plaintiff."

Thereafter the parties entered into a formal written deed of H sale, dated 10 January 1983, providing for the sale of the property to the first defendant at an increased purchase price of R66 807,50.

The deed of sale, annexure A, unlike the oral agreement, does not link the contracts of sale and service. The only clause providing for the resolution of the sale is clause 6, which is I a conventional cancellation clause predicated on a breach by the purchaser "of the terms and conditions of this agreement".

The property was duly transferred to the first defendant and a bond was registered in favour of the second defendant, a building society, which, although entering an appearance to J defend, assumed no active role in these proceedings.

Nienaber J

A The plaintiff alleges that the first defendant duly commenced working for it but breached his terms of employment by resigning on 31 July 1983, well in advance of the expiry of the mandatory two-year period. The plaintiff accordingly asks for an order compelling the first defendant to transfer the property to it, as against a tender of payment of R66 807,50 B plus the costs of transfer and cancellation of the second defendant's bond.

The first defendant responded in the following terms:

"2. The said term (that is to say, the term formulated in para 6 of the particulars of claim) if proved, constitutes an agreement for the alienation of land within the meaning of that expression as it is used in s 2 (1) of the Alienation of Land Act 68 of 1981.

3. C In order to be valid, such alienation must, in terms of the said Act, be contained in a written deed of alienation.

4. In para 4 of its particulars of claim, the plaintiff alleges that the agreement concerned was concluded orally and it follows, therefore, that the said term was not contained in a written deed of alienation.

5. D In the premises, that part of the said agreement is void and of no force or effect."

This response was not embodied in an exception but, somewhat surprisingly, in a document entitled "Special Plea". In addition the defendant filed a plea on the merits in which, E incidentally, the existence of the term is flatly denied. A special plea was not the appropriate procedure (cf Herbstein and Van Winsen The Civil Practice of the Superior Courts in South Africa at 32), but the plaintiff made no point of the irregularity and fired its own salvo by means of an exception to the special plea to the effect that the latter document "lacks averments necessary to sustain a...