IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

JUDGMENT

H M VILJOEN A J

[1]  This is an application for summary judgment brought by the plaintiff, Susanna Jacoba Crocker, against the defendants, Dorothy Charmaine Prinsloo, Jaydene Claudia Smith, and K2017488562 (South Africa) (Pty) Ltd.[1] Although plaintiff’s particulars of claim include further relief, the application for summary judgment is restricted to the ejectment of the defendants from the immovable property at 7 Second Avenue, Florida, Roodepoort.

[2]  Despite the withdrawal of the defendants’ attorneys on 24 January 2025 and the defendants’ absence, the matter proceeded with counsel for the plaintiff addressing the defences raised in the defendants’ affidavit.

Facts

[3]  The plaintiff and the defendants initially entered into an oral agreement for the sale of a nursery school business and the property from which it operated. This oral agreement was subsequently formalised in two written documents: a written acknowledgment of debt for R1,260,000.00, signed on 11 August 2017, covering the sale of the business (including movable assets and goodwill); and a written instalment sale agreement for R1,792,145.37, signed on 30 October 2017, covering the sale of the immovable property.

[4]  The defendants are said to have defaulted on their payment obligations under both the acknowledgment of debt and the instalment sale agreement. This prompted the plaintiff to cancel the agreements.  She instituted action against the defendants for relief pursuant to the cancellation, including the ejectment of the defendants from the immovable property. It is undisputed that all three defendants are currently occupying the premises.

Issues

[5]  The application for summary judgment complies with Rule 32. 

[6]  The defendants contest their ejectment from the property on the following four bases:

6.1.  The alleged invalidity of the oral agreement for the sale of land due to non-compliance with Section 2 of the Alienation of Land Act, 1981.

6.2.  The alleged absence of arrears at the date of cancellation.

6.3.  The alleged existence of a counterclaim for specific performance of the plaintiff’s obligations in terms of the instalment sale agreement.

6.4.  The plaintiff’s alleged non-compliance with clause 16 of the instalment agreement and Section 19(2) of the Alienation of Land Act, and the consequent prematurity of the cancellation.

Analysis

Validity of the Sale Agreement

[7]  The defendants argue that the initial oral agreement for the sale of the land is invalid because it does not comply with the formalities prescribed by Section 2 of the Alienation of Land Act. Section 2 requires that any alienation of land be contained in a deed of alienation signed by the parties or their agents acting on their written authority.

[8]  This contention is perplexing as the defendants themselves rely on the agreement in their plea, counterclaim and answering affidavit.  Moreover, it is undisputed that the terms of the oral agreement were subsequently incorporated into the two documents mentioned above.

[9]  It follows that there is no triable issue in the defendants’ first defence.

Absence of Arrears

[10]  The defendants' claim that they were not in arrears at the time of cancellation lacks clarity and consistency. While they assert having overpaid on the instalment agreement, they have provided not even the scantest of supporting evidence. Their excuse for the absence of evidence—that they need the plaintiff's account statements to verify payments—is unconvincing, as they should possess their own payment records. Their claim of overpayment directly contradicts their assertion that they cannot determine the exact extent of their arrears.

[11]  This inconsistency undermines their bona fides. In summary judgment proceedings, a defendant must provide a clear, consistent and detailed defence. As established in Breytenbach v Fiat SA (Edms) Bpk,[2] vague or unsubstantiated claims are insufficient. The defendants' statements fall short of this standard.

Counterclaim for Specific Performance

[12]  The defendants' counterclaim for specific performance is contingent upon them proving full compliance with their payment obligations. As discussed, they have failed to demonstrate such compliance. Their vague and contradictory statements regarding payment are insufficient to substantiate the counterclaim and raise a bona fide defence.

Prematurity of Cancellation and Non-Compliance with Clause 16 and Section 19(2)

[13]  The defendants' claim of premature cancellation of the instalment agreement rests on the argument that the plaintiff failed to comply with the notice requirements of clauses 16.2 and 16.3 of the agreement and Section 19(2) of the Alienation of Land Act>. These provisions require the seller to issue a breach notice granting the purchaser at least 30 days (or 7 days for repeat breaches within a year) to rectify the breach before cancellation.