Law Reports


Neutral citation: Booysen and Others v Booysen and Others (29558/10) [2011] ZAGPJHC 27; 2012 (2) SA 38 (GSJ) (25 March 2011)
Coram: DSS Moshidi J
Heard: 10 November 2010
Delivered: 25 March 2011


The court was asked to interpret the formalities for the sale of land as contained in section 2 of the Alienation of Land Act 68 of 1981 ("the Act"). 

The facts are as follows.  Joseph and Dora Booysen were married to each other in community of property.  They were the parents of the first applicant, the second applicant and the first respondent.   The second respondent was married to the first respondent in community of property.  Dora Booysen died on 16 April 1998, and was survived by her husband, Joseph Booysen.  Prior to her demise, Dora and Joseph Booysen executed a joint will on 1 December 1995. 

On her death in April 1998, the estate of Dora Booysen was duly reported at the offices of the fifth respondent, the Master of the court.  For reasons unknown to the court, the Master only appointed an executor on 1 July 2008, some ten years after the death of Dora Booysen. On 8 October 2007 Joseph Booysen concluded a written deed of sale in terms of which he sold the immovable property in the joint estate to his son, the first respondent, and his wife, the second respondent. The sale agreement had an addendum, which was signed by the first and the second respondents and the seller, Joseph Booysen, on 18 January 2008. On 8 May 2008 Joseph Booysen too passed away. The issues for determination in this matter were, first, whether Joseph Booysen had legally sold the immovable property to the first and second respondents; secondly, whether the fourth respondent, as executor of the estate of the late Dora Booysen, had to consent to the sale; and finally whether the sale of the immovable property was governed by the provisions of the Act.

Moshidi J held that the surviving spouse of a couple married in community of property has, after the death of his spouse, no legal authority to enter into an agreement of sale of immovable property in the joint estate without the consent of the executor and in circumstances where the estate of the deceased spouse has not been finalized. As the deceased estate is not a separate legal persona, the executor Is the person representing the estate and the only person with authority to sell the property.

Such an agreement of sale of immovable property by the surviving spouse does not comply with section 2(1) of the Act and is therefore void ab initio. Further, the agreement of sale cannot be rectified by attaching the signature of the executor subsequently.

The sale was thus invalid and void. The first and second respondents were ordered, jointly and severally, to pay the costs of the application.


Reader Comments:

Leslie Kobrin 15/08/2013:

A very interesting decision. I am accessing the Judgment because it seems to me that the surviving spouse would be able to dispose of his undivided one half share of the property without the assistance of anyone else and I would like to see whether the Judge dealt with this aspect.

Pravin Ramjathan 15/08/2013:

Is the sale not valid to the extent of the half share owned by the s/spouse?

Donald Moore 16/08/2013:

An interesting case but a vital bit of information is missing. Who was the heir in the estate (joint estate) after the death of the first dying? If the surviving spouse was the sole heir then I think that the case was wrongly decided. A person acting in his/her personal capacity does not have to own or have any legal right to a property before he can enter into a valid agreement of sale. All that is required is that the seller should have a reasonable expectation of acquiring the property. If the surviving spouse sold the property in his personal capacity and if he was the sole heir, he had such a reasonable expectation and therefore I submit that the learned Judge may have been wrong in his decision.

anville van Wyk 16/08/2013:

Mr Moore is correct.

Allen West 16/08/2013:

Given the facts of the case the seller had no right to sell the whole property. I agree that he could dispose of his half share, provided the provisions of section 14 of the DRA is complied with. The latter having the effect that the liquidation and distribution agreement was approved in that the liabilities did not exceed the assets. However, the whole property was sold which brings us to the nemo plus iuris maxim and thus resulting in the sale to be void ab initio.

Stanley Brasg 16/08/2013:

Other factors apart, it is trite that an executor may dispose of property with the consent of the Master, prior to the finalization of the estate. So on this score the judgment is clearly wrong. However section 13 of the Administration of Estates Act is applicable and to that extent, the judgment is correct. But what if the property had been sold subject to the consent of the Master once the Letters of Executorship had been issued? I submit that on that basis it would be a valid sale.

John Christie 16/08/2013:

I agree with Donald Moore, but I have not read the actual judgement and am relying on the summary.

mariekie boshoff 16/08/2013:

While I'm dealing with a similar situation, I agree with Mr Moore. Especially where the seller is the sole heir of deceased spouse.

Gerhardt Streicher 23/08/2013:

Say no Moore

Emil Botha 03/09/2013:

Upon death Mr Booysen "started" a new estate. The entire farm was still registered in the joint estate. Only the executor and the surviving spouse could have sold the farm and therefore the contract is void.

Milton Koumbatis 10/12/2013:

Although I agree that the sale agreement could not result in the purchasers obtaining an order against the lawful owners of the property authorising the transfer of the property to them I do not agree that the sale agreement was "invalid" and I think the judge went too far in "setting it aside". A seller does not have to be the registered owner of a property as at the date on which he enters into a sale agreement in respect of that property. By contracting in such circumstances the seller is accepting the obligation to ensure that on due date for delivery (transfer) of the property he has proper ownership title to the property and therefore the ability to transfer it. This was after all an every day occurrence at the zenith of our property market where parties purchased sectional title apartments off plan and then on sold them prior to taking transfer.

This is also a relatively every day occurrence in the commercial world where vendors of products currently not in stock happily sell such products to purchasers thereby accepting the risks inherent in not being able to deliver the goods on due date. The contract is therefore not per se "invalid". It is merely a contract which cannot result in an order for specific performance (due to an impossibility) and which therefore restricts the purchasers' rights to a damages claim in the case of breach. I would also mention that the judge's reference to the Alienation of Land Act is particularly perplexing. That Act merely requires the contract to be in writing and signed by the parties. The facts seem to suggest that the contract was signed and the parties were clearly identified. All in all by declaring such a contract "invalid" the judge seems to have deprived the purchasers of the right to claim any damages.

Thabo Monyake 07/04/2014:

Suppose I have a land that was given to me in the meeting where the MEC of Public Works was present and ended up offering the same Land to C as a new possessor while papers of registration of ownership follows. My question then is since the land was first possessed by A , then later by B all these predecessors never had to register the land in their names . Again their link from predecessor to successor in terms of the Law of acquisitive prescription on 30-year period does not qualify or satisfy the requirements of the same. I have the minutes that grant us possessor of land can I not go to register the same with Deeds office or which form do I need. Because my convenyancer fails to handle the case, he speaks something like contacting state attorney. Thanks

Nick Livesey 24/07/2014:

The Judge correctly held that the heirs who sold did not acquire ownership on death. He correctly held that only the executor has power to deal with a property forming part of an estate. On this basis he leaps to the astonishing non-sequiter that the heirs therefore had no legal capacity to enter into the sale and that accordingly it was void ab initio. He then finds that even if he is incorrect the sale can be impugned for want of compliance with the Alienation of land act, in that the seller had no authority to sign on his own behalf as owner or on behalf of the executor. With respect to the judge he has simply ignored centuries of established law enunciated by Grotius and going back to Roman times. It is fundamental to the law of sale that a seller does not need to own the thing sold. A valid sale requires identification of the parties, the merx sold and the purchase price. The seller has an obligation to deliver and to warrant against eviction.

This rule is central to commerce, which would collapse into chaos if sales were found to be invalid for lack of ownership, particularly in our modern economy and in e-commerce where sellers are seldom the owners - take auctioneers or online stores for instance. Surely the correct legal position is that as the heir did not purport to represent the estate or executrix and had full contractual capacity, despite not being the owner he was entitled to sell the property - or anybody else's for that matter. The merx and the price were agreed, and the formalities in terms of the alienation Act were complied with in that the agreement was in writing and signed by the parties. A valid agreement was concluded which obliged the seller to deliver and transfer the property to the seller within a reasonable time. If for any reason he was not able to acquire ownership from the estate and to transfer he would be in breach of contract and the purchasers would then be entitled to cancel.

Stuart Saville 25/07/2014:

I agree with Nick Livesey's opinion. I hope the matter is taken on appeal.

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