In the recent judgment Cooper N O and Another v Curro Heights Properties (Pty) Ltd [2023] ZASCA 66, the Supreme Court of Appeal (SCA) highlighted again why it is so important that any purchase of land complies with the law. In this case the court dealt with section 2(1) of the Alienation of Lands Act, Act 68 of 1981, and that the object of the sale must be carefully and correctly described.

The facts of the case briefly are as follows, the liquidator and purchaser came to an agreement to purchase the property, the first purchase agreement failed due to non- payment of the deposit. The parties then concluded another agreement, but again the purchaser failed to pay and only paid the deposit after a letter of demand was issued. Due to the delay an addendum was signed pushing the transfer to a later date, a second addendum was then signed, dealing with the incorrect erf number of one of the properties in the deal. It was signed by the Sellers and sent to the Purchaser for signature, it was at this point that the litigation arose. The Purchaser requested that an erf, the “ring road” be subdivided to ensure that only the part that the Purchaser wanted be transferred to thePurchaser.

This would mean that the liquidator (seller) would not be able to completely wind up the company. The seller however wanted to proceed, and after several years of back and forth, no agreement was reached and the Seller declared that the purchase was null and void due to a lack of consensus over an essentialia of the contract.

The Court agreed that there was no consensus, and that the purchase was accordingly null and void. There could be no rectification of the agreement as the court was not empowered to do this as it is the exclusive prerogative of the parties to reach consensus not the court.

The onus is on the party seeking rectification: “[SIC]… to show on a balance of probabilities that the written agreement does not correctly express what the parties had intended to set out in the agreement.” 1

The ruling then deals with the legal validity of the contract considering Section 2(1) of the Alienation of Land Act, and the court held that if there is no compliance with the tenets ofthe act then the agreement is void ab initio and no rights flow therefrom. 2 Why is this though? Because the act requires that all material terms be reduced to writing, and signed by the parties and must express there is consensus on the property, the parties, and the price.

1 Cooper N O and Another v Curro Heights Properties (Pty) Ltd [2023] ZASCA 66, the Supreme Court of Appeal (SCA) PARA

14

Soil Fumigation Services Lowveld CC v Chemfit Technical Products (Pty) Ltd [2004] 2 All SA 366 (SCA); 2004 (6) SA 29

(SCA) para 21.

2 Johnston v Leal 1980 (3) SA 927 (A) (Johnston) at 939A. This Court in Rockbreakers and Parts (Pty) Ltd v Rolag Property

Trading (Pty) Ltd [2009] ZASCA 102; 2010 (2) SA 400 (SCA); [2010] 1 All SA 291 (SCA) (Rockbreakers) para 6

It is obvious from the facts that there was no consensus over the ring road and the

subdivision, as this was never included in the initial addendum or the main contract. This led

to the ensuing dispute relating to costs of subdivision and what would occur if the

subdivisions were not approved et al. Finally, for the Seller to fully perform its mandate, it

had to sell the whole of the erf not just a portion. As such there was no consensus and the

Sellers were correct in their declaration that the purchase was void ab initio. The appeal

was upheld.

It is essential for lawyers and agents alike to ensure that all negotiations are concluded, and

all research is finalised prior to signing any offer lest it be declared void for the same

reasons as alluded above.

Talk to the team at Thomson Wilks about all your property-related needs and we will guide

you each step of the way.

Email: robert@thomsonwilks.co.za

#thomsonwilksinc #thomsonwilksattorneys #propertylaw #SCA

Source: Cooper N O and Another v Curro Heights Properties (Pty) Ltd [2023] ZASCA 66, the Supreme Court of Appeal (SCA) PARA 14

Soil Fumigation Services Lowveld CC v Chemfit Technical Products (Pty) Ltd [2004] 2 All SA 366 (SCA); 2004 (6) SA 29 (SCA) para 21.

Johnston v Leal 1980 (3) SA 927 (A) (Johnston) at 939A. This Court in Rockbreakers and Parts (Pty) Ltd v Rolag Property Trading (Pty) Ltd [2009] ZASCA 102; 2010 (2) SA 400 (SCA); [2010] 1 All SA 291

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Robert Louw - Associate

30 May 2023

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