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Vorster and Others v Vorster and Others (CA366/2011) [2013] ZAECGHC 1 (10 January 2013)

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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE – GRAHAMSTOWN)

Case No.: CA366/2011

Date heard: 17 September 2012

Date delivered: 10 January 2013

In the matter between:




ROYDEN VORSTER

First Appellant

ELIZABETH VORSTER

Second Appellant

STEVE CHRISTIAAN BRESLER

Third Appellant

THE REGISTRAR OF DEEDS

Fourth Appellant


and



STEVE VORSTER

First Respondent

MATTHYS JOHANNES LOUWRENS EADES

Second Respondent

GLORIA DOROTHY EADES

Third Respondent




J U D G M E N T



Summary:


  • To determine whether description of immovable property in an agreement of sale complies with the provisions of section 2 of the Alienation of Land Act – agreement must be read as a whole;

  • Whether co-owners in an immovable property held in undivided shares must sign or consent to an agreement of alienation of one or more of the shares – every co-owner has a right to freely alienate his/her share of the property without reference to other co-owners, subject to a specific agreement between the co-owners.

  • The right to claim based on actio communi dividundo does not supercede the right of an owner of an undivided share to alienate his/ her share of the property, particularly where seller of undivided share first offered his/her share to the co-owners.

______________________________________________________________




DAMBUZA, J:


  1. This is an appeal, leave having been granted partly by the court a quo, and partly on petition to the Supreme Court of Appeal, against a judgment of Nhlangulela J declaring null and void a sale agreement concluded between the first and second appellants on one hand and the third appellant on the other. The court a quo also granted an order interdicting the first and second appellants from “alienating” their 1/3 share in the property described as number 28 Strang Street, Korsten, Port Elizabeth (the property). Leave to appeal was granted by the court a quo only in respect of the portion of the order relating to the urgency with which the application was brought.


  1. Ownership of the property is held in three undivided shares by the first and second appellants (to whom I shall refer as the appellants), the first respondent, and the second and third respondents (to whom I shall refer as the respondents). These parties acquired the property on 11 September 1995. The appellants are married to each other and own their 1/3 share in the property jointly by virtue of their marriage, as do the respondents. At the hearing of the appeal there was no appearance on behalf of the third and the fourth appellants (the fourth appellant being the Registrar of Deeds).



  1. The respondents conduct a steel manufacturing business from the property and have been doing so since 1995. Since the acquisition of the property in 1995, extensive improvements have been effected thereon to make the property suitable for the needs of the business conducted thereon. It is common cause that the relationship between the appellants and the respondents has deteriorated over the years, to the extent that there is a pending action between them in which they have both filed claims and counterclaims, including claims for termination of the co- ownership of the property. More specifically the respondents seek an order that the appellants’ 1/3 share be transferred to them and the appellants seek the same order in respect of the 2/3 shares held by the respondents. The action was instituted in 2009.



  1. On 4 March 2011 the appellants concluded an agreement of sale in terms of which they sold their 1/3 share in the property to the third appellant. It is common cause that on receiving the offer to purchase their 1/3 share of the property the appellants approached the respondents with an offer to sell their 1/3 share to them (the respondents) at the price they had been offered by the third appellant (R350,000.00). It is also common cause that the offer by the appellants was rejected by the respondents who were of the view that the purchase price sought was too high and that the agreement was, in any event, null and void on account of the description, therein, of the property sold. It is against this background that the agreement of sale was concluded.


  1. Some time after the appellants had concluded the agreement with the third appellant the respondents approached the court a quo, as a matter of urgency, seeking an order setting aside the sale agreement and interdicting the appellants from alienating their 1/3 share of the property to the third appellant.



  1. In granting the order sought by the respondents the court a quo found that the appellants had no right to alienate the property in favour of the third appellant without first obtaining permission from the court in which the claims for termination of joint ownership of the property are pending. The basis for this finding by the Court a quo was that, as the respondents had already approached the court for an order that the property be transferred to them; it was no longer open to the appellants to sell the property to a third party. The court then found that, insofar as the respondents have a right under actio communi dividundo to determination of their claims to the appellant’s share of the property; they were therefore entitled to an interdict.


  1. The court a quo also found that the description of the property sold in the agreement of sale did not comply with the provisions of section 2(1) of the Alienation of Land Act, Act 68 of 1981 (the Alienation of Land Act) and that the agreement was, for that reason, invalid. The Learned Judge a quo found that further reasons for invalidity of the agreement of sale were the fact that the respondents, as joint owners of the property, were not signatories to the sale agreement and that the appellant’s share had to be specifically partitioned before it was sold.


Improper description of the property sold.

  1. It is contended on appeal that the court a quo erred in declaring the agreement of sale null and void on account of an improper description in one clause of the agreement. The contention is that a proper reading of the whole agreement shows that the appellants were selling only their 1/3 undivided share in the property.


  1. The description of the property sold by the appellants to the third appellant appears in the preamble or property description clause of the written agreement as follows:


I the undersigned (signature) (the PURCHASER) hereby offer to purchase through the sole introduction of Lizette Vorster Properties the fixed PROPERTY being:

Erf No 3686 Korsten Situated at and known as: 28 Strang Street Korsten Port Elizabeth

(hereinafter referred to as the PROPERTY)”



  1. The submission on behalf of the respondents was that the description of the property sold does not comply with the provisions of section 2(1) of the Alienation of Land Act and that the special condition recorded in clause 18 of the agreement that; “the purchaser buys only 1/3 (one third) of the abovementioned property”, does not cure the defect in that it contradicts the intention of the parties as expressed in the description clause.

  1. Section 2(1) of the Alienation of Land Act provides that:


No alienation of land after the commencement of this section shall, subject to the provisions of section 28, be of any force or effect unless it is contained in a deed of alienation signed by the parties thereto or by their agents acting on their written authority.”


  1. Nowhere in that section is there a stipulation as to the description of the property sold. It is indeed a formal requirement in contracts of sale that the subject matter of the sale must be defined and ascertained or ascertainable from the agreement. I do not agree that that requirement supports the contention that the description of the property must necessarily be determinable from one clause in the agreement.

  1. Our courts have generally not been rigid when considering validity of written agreements of sale of land. The writer A J Kerr, in The Law of Sale and Lease,1 remarks as follows about the standard of precision required in these agreements:


As contracts for the purchase and sale of land are important and likely to be intricate, a prospective purchaser or seller is well advised to consult an attorney before the provisions of the contract are written down and signed. When attorneys are consulted one expects precision of language and adequate coverage of matters which are required by law or which the parties wish to arrange themselves, not being content to leave the items to be regulated by residual provisions. For example, if there is a title deed an attorney will normally incorporate the title deed description in the clause relating to the land being sold. Sometimes, however, there is no title deed, or the parties do not consult their attorneys, or they do consult but there remains a source of difficulty, and the question may arise whether the provisions of a particular document or documents are sufficiently precise to comply with the requirements of the Act. In such cases one must remember that the legislature wished to obviate uncertainty, disputes and possible malpractices. The main malpractices are perjury and fraud, which latter includes attempts to escape unfairly from a bargain. Hence the courts are lenient and have approved as valid clauses to the following effect: a farm described by its name only; property described merely as “my house”, the pronoun referring to one of the parties; a description of land as “belonging to” the seller, a legatee to whom ownership had not yet been passed; . . . . . . . . . . a clause identifying the western portion of an identified erf as shown on a sketch plan which, inter alia, identified streets by name and had a line drawn on it which could be identified as the partition line between two portions of the erf; a clause stating that the purchaser was to choose a portion of specified extent ‘anywhere in the aforementioned Remaining Extent of the farm Honingklip...’, ‘portion of Portion 1’ still to be subdivided, the extent of the portion and the minimum street frontage being given, a clause giving a combined price for the land and movables. It is not necessary that the signed document(s) themselves contain everything that is necessary: a diagram may be referred to expressly or impliedly; details in one document may be incorporated by reference in another; and plans for a flat to be built which is being sold under sectional title or a house yet to be built can give the necessary precision.

The principle behind these cases is that the parties have reached agreement on all aspects of the transaction. Whatever evidence is needed does not affect the agreement: it affects the application of the agreement to the facts. As Murray J said in Van der Merwe v Cloete and another2 quoted with approval in Grobler v Naude:3

The object of the Legislature (vide, Wilken v Kohler 1913 AD 135) was to provide certainty as to what was being bought and sold, thereby preventing litigation and removing the temptation to fraud and perjury. The evidence which is excluded is not evidence of the parties which merely identifies the fixed property they have bought and sold, but evidence constituting

an attempt to supplement the written description of the property by testimony as to some negotiation or consensus between the parties which is not embodied in the written agreement.’”


In Van Wyk v Rottcher’s Saw Mills (Pty) Ltd4 Watermeyer CJ held that:

A contract of sale of land in writing is in itself a mere abstraction, it consists of ideas expressed in words, but the relationship of those ideas to the concrete things which the ideas represent cannot be understood without evidence. For a skilled person the evidence of a mere inspection, coupled with his own local knowledge, may be sufficient to identify the property described but, even for him, that much evidence at least and his own knowledge are necessary. In a Court of law, of course, in every case evidence is essential in order to identify the thing which corresponds to the idea expressed in the words of the written contract. The abstract mental conception produced by the words has to be translated into the concrete reality on the ground of evidence. It has been suggested that a written contract does not satisfy the provisions of the statute unless the mere reading of the document is sufficient to identify the land sold without invoking the aid of any evidence dehors the document but a moment’s reflection and an appreciation of the fact that a written contract is merely an abstraction until it is related, by evidence, to the concrete things in the material world will show at once that that suggestion makes sec. 30 demand performance of an impossibility.”


The court in Van Wyk5 held further that, where a contract describes a property in several ways confusion may arise because of either an apparent or suggested conflict between the descriptions, but when one of the descriptions provides a clear description; and the other or others can be treated as either surplusage or may be brought by a reasonable construction into harmony with the clear description, priority should be given to the clear description.


  1. My view is that the circumstances in this case are less confusing that what was envisaged in Van Wyk. The property sold is described in two clauses in the agreement; in the description clause and in clause 18 of the agreement which more fully provides that:


The purchaser buys only one third of the above-mentioned property.

The purchaser is entitled to rental of R25.00 m2 of a 1/3 of 486m2 as the legal description regarding the size, after registration. Alternatively, as agreed upon by Mr Bresler.


Sellers did give the co owners 30 days first option to buy. Which lead to no response? (sic)

Co owners have until 17h00 on 7 March 2011 to counter this cash offer with a bank guarantee cheque or Cash transfer in to attorney’s bank account. (Friedman Scheckter).” (Emphasis supplied)


  1. Contrary to the submission made on behalf of the respondents, I can find no valid reason for clause 18 to be severed from the agreement. In my view this clause records more fully, the intention of the contracting parties and the context in which the agreement was concluded. Whereas the bulk of the agreement consists of standard generic clauses found in agreements of this nature, clause 18 is specific as to the intentions of the parties. Apart from the recordal that the property sold is only 1/3 of the property, clause 18 records that the property sold is “co-owned” and that the “co-owners” were afforded opportunity to exercise a right of first refusal. I can only conclude from the contents of clause 18 of the agreement that the parties thereto were conscious of their description (in the description clause) of the property sold and intended clause 18 to be a continuation and a more specific description thereof.

  1. Despite the inelegance in the drafting of the agreement the content satisfies the test set out in the authorities referred to above and in Clements v Simpson 6 that:


The test for compliance with the statute, in regard to res vendita, is whether the land sold can be identified on the ground by reference to the provisions of the contract, without recourse to evidence from the parties as to their negotiations and consensus”.

  1. For these reasons I agree that the court a quo erred in finding that the description of the property sold renders the agreement invalid.


  1. I am further of the view that the court a quo erred in finding that, for the agreement to be valid, the portion alienated would have had to be a defined portion, registered in the title deed relating to the property.


  1. The land sold is described as an “undivided share” for the very reason that it is an undemarcated portion of the main property. The writer H S Nel, in Jones Conveyancing in South Africa7 defines the concept of a “share in land” as follows:


The word ‘share’ in relation to land and mineral rights is defined in
s 102 as meaning an undivided share. A share holding in land does not therefore represent, and may not be held out to represent (s 24(1)), a defined portion of land. The reader must remember that an owner who holds a share in land does not hold title to a defined piece of land even although in actual fact he may, as so often is the case, by arrangement with his co-owners, have been given occupation of a separated piece of land. The title he has is to an undivided share only in the whole unit of land held in joint ownership, a portion of which he occupies.”



  1. Even further, it was not necessary for the respondents, as co-owners of the whole unit in which the share lies, to be signatories to the agreement. The court in Docrat v Willemse & Others8, on which the Court a quo relied in finding that the respondents’ signatures were a requirement for validity of the agreement of sale, was concerned with the sale of the whole property which was owned jointly by a married couple. During the hearing of the appeal Mr Nepgen correctly conceded on behalf of the respondents that the appellants have an unrestricted right to alienate their share of the property. For that reason I do not intend to deal any further with this issue.


  1. Turning to the interdict granted by the Court a quo, as I have stated, the main basis for granting same was that, because in the pending action, wherein the parties have both filed counter-claims in which they each claim each other’s 1/3 share of the property, permission to alienate the appellants’ share should have been obtained from the court. The Court a quo found that alienation of the appellants’ share would be to the prejudice of the respondents. The court a quo does not seem to have had considered the fact that the respondents were afforded the right of first option and that they had rejected the offer from the appellants.


  1. I do not intend to deal with the merits of the counterclaims in the pending action, save to re-state the unrestricted right of co-owners of a property to alienate their share property, subject to any agreement they may have entered into with other co-owners of the same unit. No such agreement is alleged in this case. Indeed the co- owners who cannot abide the consequences of such alienation have a remedy in a claim for partition under actio communi dividundo. In Robson v Theron9 the court described Actio communi dividundo as follows:


This action which originated in Roman law has been adopted in Roman–Dutch law as the actie van deelinge or actie van scheydinge. It is well known in our present law. Its chief charactreristics appear from Voet, 10.3.1 (Gane’s trans.):

This action for division of common property is a mixed, a two-sided and a bona fidei action. By it those who hold property in common, generally by particular title, claim to have it divided and personal items of payment made good. It is available, that is to say, to those who hold common property in undivided shares. This is so whether the property is common between them in a partnership or without a partnership D.10.3.2.; whether they possess it, or neither of them or only one of them is in possession D.10.3.30; whether they hold the common ownership on the same or on different rights, the one perchance by title of institution as heir and the other by title of legacy D.10.3.8.1; and whether they are direct or beneficial owners.’

.....

The actio communi dividundo has a twofold purpose, viz. to claim division of joint property and payment of praestationes personales relating to profits enjoyed or expenses incurred in connection with the joint property.”




  1. I can find no legal basis for a finding that where one or more co-owners have instituted claims for partition of a jointly owned property the co-owners may not alienate their shares until finalization of the pending claims. In my view such barring of an owner from alienating his or her share of the property would make no sense, for the (proposed) alienation would effectively be giving effect to the pending claim. Disagreement on purchase price cannot be a valid reason for prohibiting alienation per se. As Mr Beyleveld submitted on behalf of the appellants, any right to claim under actio communi dividundo does not entitle the respondents to acquire the appellants share at their (the respondents’) price. The right of a co-owner to alienate his or her property freely and without reference to co-owners is entrenched in our law. In Silberberg and Schoeman’s The Law of Property10 the following remarks are made:


Every co-owner has the right freely and without reference to co-owners to alienate his or her share, or even part of his or her share subject of course to the provisions of the Subdivision of Agricultural Land Act. It is this right of alienation which is probably the most important characteristic which distinguishes co-ownership per se from all other forms of co-ownership such as partnerships and associations. It is clear that the exercise of this right might lead to friction in that it enables one co-owner to force others into a legal relationship with a party which they do not desire. Therefore every co-owner may insist on a partition of the property at any time, unless he or she has entered into an agreement with the co-owners not to do so within a certain period.”


  1. Moreover, in this case the offer made to the respondents to purchase the appellants’ share obviated the remedy sought by them in their counter claim. The effect of the interdict seems to me to recognise a right which the respondents do not have, that is, the right to acquire the property on their terms. On the other hand it has the incurable effect that the appellants are prohibited from selling their share of the property at a price for which they want they want to sell.


  1. In the end I agree that the respondents failed to prove that they have a clear right to obtain the interdict they sought.


  1. On the issue of urgency, the court a quo found that although it took the respondents two months from the time they became aware of the sale to the third appellant, to launch the application, the delay was justified as the respondent required time to consider their intended court approach. Moreover, the nature of the relief the sought by the respondent (ie the interdict to prevent transfer of the appellants’ share in the property) is in itself urgent, so found the court a quo. I do not agree. Our courts have, on numerous occasions, set out the requirements that have to be satisfied to prove urgency in all matters brought to court on an urgent basis. The basis for urgency, where such is alleged in particular court proceedings, and the reasons why a particular applicant cannot be afforded remedy in due course, have to be fully set out in the founding affidavit.11 In this case the delay in launching the application can only be attributed to the respondents’ doubt as to the bona fides of the agreement. That, in my view, cannot be valid justification for the delay.


  1. Consequently, the following order shall issue:


  1. The appeal succeeds and the order granted by the court a quo is set aside;


  1. The respondents are ordered, jointly and severally, the one paying the others to be absolved, to pay the appellants’ costs of appeal.

_______________________

N. DAMBUZA

JUDGE OF THE HIGH COURT




CHETTY J



I agree.




_________________________

D. CHETTY

JUDGE OF THE HIGH COURT



BESHE J



I agree.




_________________________

N.G. BESHE

JUDGE OF THE HIGH COURT

Appearances:

For the appellants:

Mr A Beyleveld SC


Instructed by:


Friedman Sheckter, Port Elizabeth; c/o Nettletons Attorneys, Grahamstown.



For the respondents:

Mr J Nepgen


Instructed by:


Joyzel L Obbes, Port Elizabeth.




1 3rd Ed at 91 and the authorities cited therein.

2 1950 (3) SA 228 (T) at 232A-F.

3 1980 (3) SA 320 (T) at 329F-H.

4 1948 (1) SA 983 (A) at 990.

5 supra

6 1971 (3) SA 1 (A) at 98 G

7 fourth edition at 117.

9 1978 (1) SA 841 (A) at 854 G

10 At 135.

11 Rule 6(12) of the Rules of Practice.