De Wet v Hollow

• Jurisdiction: South Africa
• Judge: Lord De Villiers CJ, CG Maasdorp AJA, J De Villiers AJA and Dove Wilson Acting AJA
• Judgment Date: 11 March 1914
• Hearing Date: 07 March 1914
• Court: Appellate Division

Lord De Villiers, C.J.:

This is an appeal from a judgment of the Orange Free State Provincial Division by which the sale by the defendant to the plaintiff of certain lots of land was ordered to be cancelled, the price paid, namely £161 10s., was ordered to be repaid, the sum of £500 was ordered to be paid to the plaintiff as compensation for improvements effected by him on the land, and the sum of £200 was awarded as damages sustained by the plaintiff by reason of the defendant's breach of contract. The alleged breach of contract consisted in the failure on the defendant's part to supply water to two dams indicated in the deed of sale as the dams from which the agricultural lots sold could be irrigated. The clauses in the deed of sale relating to the water for irrigation are the following: "All the agricultural plots will be capable of being irrigated from the dams with equal rights . . . . All dams and

Lord De Villiers, C.J.

waterworks are taken over by the holders of the plots, control and supervision of the committee of the Settlement, and the committee must provide for any repairs, etc., thereto, and watercourses, etc., forming part of the waterworks."

The construction placed by the plaintiff upon these clauses is that the defendant thereby guaranteed not only that water could be led to the lots from the dams if they contained water, but that they would for the future contain a sufficient supply of water for the purpose of being so led out. The defendant denied this construction, and moreover specially pleaded that before the deed was drawn it was agreed between the parties that, in consideration of the defendant reducing the price which had by a previous koopbrief been agreed upon in regard to certain other lots, the defendant should be relieved of all responsibility incurred by him under a certain circular issued by him to intending purchasers in 1906 and the fresh contract should now be entered into. By that circular the defendant had undoubtedly represented that both the dams would her filled from the Rhenoster River Dam, so that all the blocks would be capable of being watered. By the first deed of sale, which was invalid under Orange Free State law as being signed only by the seller, it was provided that the lots sold to the plaintiff should be capable of being watered from the two dams and that the deed should further be subject to the conditions contained in the circular. This last provision was omitted from the deed of sale now in question. When, at the trial, the defendant proposed to give evidence in support of his special defence the Court, upon objection being taken on behalf of the plaintiff, refused to allow the evidence. The ground of the refusal was that the document should speak for itself. "Every party to the contract," said the learned Chief Justice, "is supposed, after having discussed the...