Venter v Liebenberg

• Judge: Roper J
• Judgment Date: 06 May 1954
• Citation: 1954 (3) SA 333 (T)
• Hearing Date: 27 April 1954
• Court: Transvaal Provincial Division

Roper, J.:

On the 1st May, 1953, the parties entered into the following agreement with one another: A

'Koopbrief.

Aangegaan deur en tussen:

Sarel Jacobus Liebenberg (gebore op 17 Januarie 1906), hierinlater genoem die eerste party en Adriaan Marthinus Venter (gebore op 25ste Julie 1911), hierinlater genoem die tweede party: -

Eerste party verkoop aan tweede party:

Die resterende gedeelte van B gedeelte 6 van gedeelte B van die plaas Klipfontein No. 482, distrik Pretoria; Groot 16,8873 morg vir die som van £3,000 0s. 0d.

Tweede party verkoop aan eerste party seker eiendom bekend as No. 610, 22ste Laan, Rietfontein, met verbeterings daarop vir die som van £3,000 0s. 0d.

Eerste party willig in om 'n tweede verband te neem tot 'n bedrag van £550 0s. 0d. nie te bogaande nie, teen 6% betaalbaar binne 2 jaar vanaf datum hiervan.

Besit van die eiendomme word onmiddellik gegee. C

Die partye sal wedersyds verantwoordelik wees vir die betaling van transportkoste, hereregte en kostes van hierdie koopbrief. Transporte sal passeer word deur Roger Dyason, Douglas & Muller.

Tweede party neem losgoed oor soos per aangehegte lys ter waarde van £300 betaalbaar binne twee jaar vanaf datum hiervan vry van rente.'

The plaintiff, who is the 'second party' to the agreement, has D instituted action in which he alleges his readiness to carry out his part thereof, and defendant's refusal to do his part, and claims specific performance or damages. In his declaration he alleges that it was an implied condition of the agreement that there should be simultaneous reciprocal transfer of the respective properties, with reciprocal payment of the purchase price pari passu with transfer, E subject to the express condition that the defendant would accept a second mortgage over the Klipfontein property in an amount not exceeding £550.

The defendant has filed an exception to the effect that the plaintiff's declaration does not disclose a cause of action and is vague and F embarrassing, and also (i) a main plea in which he alleges that he was induced to enter into the contract by material misrepresentations of fact made by the plaintiff, and that he is entitled to refuse specific performance and claim cancellation of the agreement. One of the alleged misrepresentations is said to be a representation that the bond on the plaintiff's property could be taken over by the defendant, when in fact it was not capable of being taken over by him.

G (ii) An alternative plea in which he alleges inter alia that the agreement was not an agreement of sale but one of exchange, that the document did not set out the whole agreement between the parties, that it was agreed between them that each of them would take over the H existing bond on the other's property, when transferred, with an arrangement for adjusting the difference between the amounts of the two bonds, and that the plaintiff had not tendered and was not in a position to tender specific performance of that portion of the contract under which transfer was to take place simul ac semel with the taking over of the existing bond.

(iii) A claim in reconvention for cancellation of the agreement.

Roper J

The plaintiff now applies for leave to amend his declaration by adding the following allegations (which I have summarised):

(a) That payment of the respective purchase prices of the properties was to be effected as follows:

(i) With the transfer of defendant's property into the plaintiff's name the plaintiff was to take the place of the defendant as A mortgagor in respect of the bond over the defendant's property, whereunder an amount of £1,100 was owing.

(ii) The defendant, who would become owner of the plaintiff's...