ODENDAAL v MAARTENS

(TRANSVAAL PROVINCIAL DIVISION)

1979 June 13; July 11   ELOFF J

Sale-Of immovable property-Option-Exercise of-Authority given by purchaser to partnership of attorneys to exercise option on behalf of purchaser-Section I of Act 68 of 1957 complied with if it is reasonably ascertainable from the written document who purchaser's agent is-Evidence accordingly admissible to determine who the partners in the partnership of attorneys were when option exercised by them.

Whilst it is certainly correct that, where a contract, to which the provisions of s I of Act 68 of 1957 are applicable, is alleged to have been concluded by the action on behalf of one of the parties of his agent, the identity of the agent must be certain, such identity does not have to be fully spelled out in the written documents. It is sufficient if, having regard to what is stated in the written documents, it is reasonably ascertainable.

Accordingly the Court, in an exception to the plaintiff's particulars of claim in which transfer of a plot which she had purchased by means of the exercise on her behalf by a partnership of attorneys of an option which had been ceded to her, held that, by applying the maxim id certum est quod certum reddi potest, it could be determined as a fact who the partners in the partnership of attorneys were, and evidence was admissible to determine the identity of the partners. The exception was accordingly dismissed.

Exception against plaintiff's particulars of claim. The nature of the pleadings appears from the judgment.

W A van Deventer for the excipient (defendant).
L T C Harms for the respondent (plaintiff).

Cur adv vult.

Postea (July 11).

ELOFF J: This is an exception against the plaintiff's particulars of claim on the ground that they reveal no cause of action.

The claim is for an order ordering the defendant to transfer a property known as Lusthof, Plot 90, Tzaneen, to her. She avers that the defendant had granted a written option to purchase the property to a certain D J Pieterse; that the latter ceded her rights to her and that the option was properly exercised on her behalf. The exception is directed against the averred effectiveness of the act of acceptance and it is necessary for me to set out the relevant averments in this regard more fully. The plaintiff averred that on 18 September 1978 she gave written instruction to her attorneys to exercise the option. She did this by writing a letter to Messrs Bekker, Brink and Brink of Ermelo, in which she said the following:

"re: Option N F Martens, Lusthof 90, Tzaneen.
Your Mr Papenfus please.
Herewith the cession to myself which has now been signed by both of us. Please exercise the option on my behalf immediately and send the letter to Dawie, who will give it personally to Maartens. His address is D J Pieterse, c/o Landbank, Tzaneen.
Yours sincerely M G Odendaal."

The plaintiff further averred that on 18 September 1978 already Messrs Bekker, Brink and Brink had exercised the option on her behalf by delivering a letter to the defendant which had the following contents:

"re: Transfer N F Martin in favour of M G Odendaal: 
Lusthof, Plot 90, district Tzaneen.
We wish to confirm that Mr DJ Pieterse ceded the option which he obtained from you in order to purchase the afore-mentioned plot, to Mrs M G Odendaal and we hereby attach a copy of the cession for your attention.
On instruction from Mrs Odendaal we hereby notify you that she exercises the option and will pay an amount of R22 500 in cash to you on the date of registration of transfer in her favour.
…
Yours sincerely
Bekker, Brink and Brink."

The first part of the process of acceptance which is contested by the exception is the granting of the alleged power in the form of a letter to a firm of attorneys. The argument on behalf of the excipient was that in the light of the fact that the plaintiff endeavours enforcing a contract which owing to the provisions of s 1 of Act 68 of 1957 must be in writing to be valid, she must prove a written power of attorney. The letter to her attorneys - as I understand the argument - is inadequate for this purpose because it is directed to a firm and not to an individual or legal persona. The objection against the naming of a firm as such, according to the argument, lies in the fact that since it is in effect the appointment of the different partners (cf Estate Mathews v Ells 1955 (4) SA 457 (C)), evidence will be necessary to determine who the partners in the firm were at the time in question, and the need for such evidence would then be in conflict with the requirement that everything setting out the essentialia of the contract must appear from the contract documents themselves.

I cannot agree with this. While it is certainly correct that, where a contract, to which the above-mentioned statutory provisions are applicable, is alleged to have been concluded by the action on behalf of one of the parties of his agent, the identity of the agent must be certain, such identity does not have to be fully spelled out in the written documents. It is sufficient if, having regard to what is stated in the written documents, it is reasonably ascertainable. The following dictum of WATERMEYER CJ in Van Wyk v Rottcher's Saw Mills (Pty) Ltd 1948 (1) SA 983 (A) at 990 regarding the description of the merx is in my view to an equal extent applicable to the description of the constitution of the firm to whom instruction is given to enter into a contract for the sale of land:
"………."

By applying the principle id certum est quod certum reddi potest it can be determined as a fact who the partners in Bekker, Brink and Brink were and evidence in this regard is in my opinion capable of being received. I think that the fact that the plaintiff directed her letter to a firm without setting out the names of the partners, does not deprive the letter of its legal force as a power of attorney.

The second step in the process of acceptance which came under fire was the writing of the letter of acceptance. The basis of the exception is that the letter according to its contents does not purport to be an acceptance on behalf of the plaintiff. Reference is made in this regard to the word usage "we now inform you that she exercises the option" and it is contended that only if words such as ''we now inform you that we exercise the option on behalf of Mrs Odendaal" had been used a contract would have arisen. In my view however the excipient upon reading the letter in its entirety would have realised that the attorneys were intimating that they were exercising the option on behalf of the plaintiff. I think that where the cited phrase is preceded by the words "on instruction from Mrs Odendaal" the attorneys make it sufficiently clear that they were performing the act of acceptance by their letter. I wish to add that, as emphasized by DAVIS AJA in Hersch v Nel 1948 (3) SA 686 (A) at 702-3, a too technical approach in cases such as the present must be avoided.

In the notice of exception still further grounds of attack on plaintiff's pleadings are set out, but they were not pursued during argument and I do not mention them.

The exception is dismissed with costs.

Excipient's (Defendant's) Attorneys: HP Krogh & De Wet. Respondent's (Plaintiff's) Attorneys: Couzyn, Hertog & Horak Inc.