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21 August 2008
Division: The Supreme Court of Appeal
Case No: 621/2006
Date of hearing: 7 March 2008
Date of delivery: 27 March 2008
Coram: Scott, Cameron, Mthiyane, Combrinck, Cachalia JJA
Summary
A couple living in Blythedale Beach, KZN, attempted to enforce a contract of sale of a flat to them. They were unsuccessful in the Durban High Court. In a judgment of the SCA, they, having taken the matter on appeal, were again unsuccessful though for different reasons.
What had happened was, the purchaser had sent an incomplete pro forma agreement of sale for the sellers to complete and sign. The price had been agreed upon at R185 000. The agreement was returned signed, but inchoate containing neither the names of the purchasers, nor their signatures, nor a description of the property sold.
These were filled in later by them but without sending the agreement back for further signature. For more than a year the respondent refused to sign the documents necessary to affect transfer as she was no longer interested in disposing of her property. In the Durban High Court Pillay J dismissed the declaratory order which was sought, but granted leave to appeal because of the conflicting judgments of the provincial divisions in the Sayers v Khan 2002 (5) SA 988 (C) and Gowar Investments (Pty) Ltd v Section 3 Dolphin Coast Medical Centre CC 2007 (3) SA 100 (SCA) cases.
In his judgment Combrink accepted without deciding that the respondent did authorise the appellants to fill in a description of the property. The question however at paragraph [6] was:
"[W]ere the provisions of s 2(1) satisfied when appellants, duly authorised, completed the document when respondent had already signed it? The question was considered in Fourlamel where Miller JA at 344A-D had the following to say:
'What is important to note in that connection, however, is that the question left open by the Court [in the matter of Levin v Drieprok Properties (Pty) Ltd 1975 (2) SA 397 (A)] related to an alteration made by the offeror's agent, not by any other person. Here, the additions to the deed of suretyship were not made by the respondent or his agent. The suggestion made by appellant's counsel that by signing the deed in blank the respondent tacitly authorized the appellant to fill in the blanks on his behalf, is untenable. Apart from the circumstance that the appellant, in a transaction of the kind that requires the terms of the agreement to be in writing, would be acting in the dual capacity of one of the contracting parties and the agent of the other contracting party (as to which, see Restatement of the Law, 2nd ed., vol. 1, para. 24, comment b), there is nothing in the papers to warrant an inference that such authority was given to the appellant or any other person.'
Although obiter, the reasoning is persuasive as the legislation seeks to obviate disputes about the terms of agreements and to exclude fraud and perjury. The other reason for excluding extrinsic evidence is to prevent uncertainty and therefore disputes by confining parties to written contracts. In the light of this the court held that one party could not orally appoint the other to fill in material terms of the contract and accordingly that it did not comply with the Alienation of Land Act which requires all the terms of a sale to be in writing and signed by the parties.
The contract was therefore found to be null and void and the appeal was dismissed with costs.
Full judgment
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