Van Pletsen v Henning

• Jurisdiction: South Africa
• Judge: Lord De Villiers CJ, Innes J, Solomon J, CG Maasdorp JP and J De Villiers JP
• Judgment Date: 10 March 1913
• Citation: 1913 AD 82
• Hearing Date: 06 March 1913
• Court: Appellate Division

Lord De Villiers, C.J.:

If I understand the judgment of the court below correctly they held that at the time of the alleged contract the plaintiff stood in a fiduciary relation towards the defendant, that it was the plaintiff's duty to explain the contract clearly to the defendant, who was an old man of 79 and not capable of dealing intelligently with such a complicated matter as the contract, and that the defendant did not, in fact, understand the nature of the contract. The misapprehension under which he is held to have laboured was that he was selling the half only and not the whole of certain farms. It is not clear to me that any fiduciary relation existed between the parties. It is true that the plaintiff is the defendant's son-in-law, but there is no evidence of the existence of such confidential relations between them in the past as to justify the conclusion that a fiduciary relation existed. Nor would I be prepared to agree that if the alleged contract was in clear and unambiguous terms and there was no proof of misrepresentation on the plaintiff's part, or of knowledge on his part that the contract was misunderstood, the defendant could now be allowed to set up the defence that he did not understand it. But was there a contract in clear and unambiguous terms for the sale of the property to the plaintiff? The contract is headed, "Provisional Purchase." It states that the seller consents to sell the property for a certain price, but immediately thereafter comes this clause: "The purchase shall be provisional for a period of eight months from the date

Innes, J.

hereof." Then follows this clause: "The seller shall not have the right to sell the said lands within that period to others, but must give the preference of purchase to the said purchasers exclusively for the above-mentioned price." Then follow clauses relating to possession, transfer and terms of payment, but they are only to be effectual "if the purchase takes effect" (indien de koop doorgaat). The only meaning I can attach to that document is that the sale is to be conditional upon the seller attempting to sell the property to others during the period of eight months mentioned therein. During that period the plaintiff is to have the right of pre-emption, but there is no proof that the defendant ever attempted to sell the property to others. Now I do not wish to express any opinion upon the question whether even if the document had given the plaintiff an option to purchase, the defendant was under the circumstances entitled to withdraw his offer before acceptance thereof. This question has not been raised in the pleadings or in the argument, and does not now arise for decision. But if the court holds that according to the true construction of the contract there was a mere right of pre-emption, it is clear that it cannot support the plaintiff in his contention that he is entitled to enforce the contract as one of completed sale. Unfortunately the question was not raised in the court below by either of the parties, and the question arises whether in dismissing the appeal the Court should withhold part of the costs from the defendant on the ground that he ought to have excepted to the declaration. The declaration, however, does not set out the whole of the alleged contract, and in setting out some of its terms it does not give an exact translation. For example, in the original it is said that the seller must give the "voorkeur van koop" to the purchasers, but the declaration says he is to give them "the preferent right of purchase." A preference of purchase (voorkeur van koop) would not necessarily mean a right of purchase, even if there were no other intending purchaser, but the words "preferent right of purchase" might be construed as having that meaning. Under all the circumstances, I am of opinion that in dismissing the appeal the Court should do so with costs.

Judgment

Innes, J.:

This action is brought to enforce what is alleged to be a contract of sale, embodied in an agreement of a somewhat unusual character. The defendant and his late wife executed, in June, 1911, a mutual will in terms of which the joint estate was

Innes, J.

disposed of among the children and grandchildren of the marriage, subject to a life usufruct in favour of the survivor. Mrs. Henning died in December of the same year, and her will was then discovered to be null and void by reason of an informality in the attestation. The result was that her heirs ab intestato became entitled to demand from the survivor payment of their maternal portions. The defendant, a man nearly eighty years of age, was desirous of ending his days upon his property without disposing of any portion of it, but he had no money with which to satisfy the inheritances of his children. He sent one of his sons, Jan Hendrik, Henning, to Aliwal North to obtain the advice of an attorney there. There is nothing upon the record to show what advice Jan Henning received, or whether he communicated it to his father. But lie was accompanied on his return to the firm by the plaintiff, who is the defendant's son-in-law. The matter was discussed between them on several occasions, both on the farm and at the office and in the presence of Attorney Marais, of Rouxville, who had drawn the defendant's will and who seems to have regarded himself as the adviser of both parties throughout the discussions. Ultimately a memorandum of Agreement headed "Provisional Purchase" was drawn up by Marais and signed by Van Pletsen and Henning of the one part and the defendant of the other. It set forth that the parties had agreed to a purchase and sale of the farms Lusthof and Samenspan, and of an erf in Rouxville, for £3,000, "upon the following conditions." The first condition provided that the purchase should be provisional for a period of eight months. The second was to the effect that the seller should not have the right during the said period to sell the property to others, but should be obliged to give the preference of purchase (voorkeur van koop) to the buyers exclusively for the above price. Then followed provisions as to payment and transfer. Should the sale, go through (indien de koop doorgaat) the purchasers were to pay the sum of £1,000 on its taking effect (met aangang van koop), the balance (£2,000) to be liquidated by a mortgage passed upon the properties by the seller, the interest of which the purchasers undertook to pay. Transfer was to pass after the death of the seller who was to be entitled to remain on the properties to cultivate and irrigate a limited extent of garden ground and to depasture a defined number of stock. Subject to these rights of occupation, the purchasers were to have the use of the farms as they desired.

Innes, J.

Now to appreciate the effect of this document, it must be borne in mind that the amount to be raised on bond represented the maternal inheritances of the heirs other than Van Pletsen and Jan Henning, and that the properties dealt with were admittedly worth double, the amount of the purchase price. During the lifetime of the defendant, therefore, the plaintiffs were only to pay £1,000 (against which must be reckoned the amounts of their maternal portions), plus the...