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7 February 2008

Written agreement of an immovable property, whether the sale agreement complied with the requirements set out in section 2(1) of the Alienation of Land Act 68 of 1981, in circumstances where offer signed and delivered by offeree in incomplete form.

Involved business relations between the owners of supermarkets gave rise to this case. Simply put, the question to be solved was whether a signature on a blank page in a contract for the sale of land gave rise to the invalidity of the agreement.

Jajbhay J held that s 2 of the Act required that all material terms of an agreement must be reduced to writing for it to be valid. A term was material if the parties intended a particular aspect of their relationship to be governed by a special provision - agreed upon by themselves rather than by the naturalia or the general principles of contract. As to the question whether the agreement had to be reduced to writing prior to signature, the court held that s 2 did not prescribe a particular procedure for the execution of a deed of alienation.

However, where the terms of the contract were required by statute to be embodied in a document and signed by a particular party as a manifestation of his assent to such terms, the later insertion of these terms, after signature on a blank piece of paper, could not constitute compliance. This is because …
"[21] On a proper construction of the Act, the offer had to be complete when the Fouries accepted and signed it or at least had to be signed by them in its completed form before they released it for delivery to the other party (cf Standard Bank of SA v Jaap de Villiers Beleggings. The fact that they signed two blank pieces of paper is fatal to the whole agreement. As Van Winsen J explained in Van Rooyen v Hume Melville Motors (Edms) Bpk:
'What defendant signed was not an agreement but a piece of paper. It is true that the placing on such piece of paper of a number of terms not embodied therein in writing at the time that the defendant signed the paper might in form turn the piece of paper into an agreement but it was certainly not an agreement when the defendant signed it and accordingly it cannot be regarded as an agreement having force and effect.'

[22] The invalidity of the agreement cannot be cured by the fact that the amended clause reflected the intention of the parties. The Fouries' signature did not perform the function which the provisions of the Act required them to perform, namely, to signify that the written offer to which the signatures pertained met with their agreement.

Full judgment

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