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Stalwo

11 October 2007

Judgement delivered 28 September 2007. Per Maya, J.

Contract of sale of land - whether suspensive condition a tacit term - whether tacit term offends against sec 2(1) of the Alienation of Land Act 68 of 1981 - meaning of 'agricultural land' as defined in section 1 of the Subdivision of Agricultural Land Act 70 of 1970. A case in which the following reasoning of the SCA is interesting because one would have thought that the material facts of a sale MUST be in writing in the agreement of sale. The following two paragraphs from the case are worth emphasising:

[11] To find that the tacit term contended for by the appellant exists, it seems to me that once such intention is established, it matters not whether it was expressly agreed or necessarily imported that the agreement would be suspended pending approval of the subdivision application. This view finds support in Wilkins v Voges 1994 (3) SA 130 (A) where Nienaber JA said:
'A tacit term in a written contract, be it actual or imputed, can be the corollary of the express terms - reading, as it were, between the lines - or it can be the product of the express terms read in conjunction with evidence of admissible surrounding circumstances. Either way, a tacit term, once found to exist, is simply read or blended into the contract: as such it is "contained" in the written deed. Not being an adjunct to but an integrated part of the contract, a tacit term does not in my opinion fall foul of either the clause in question or the [Alienation of Land] Act.' ('Emphasis added'.)

[12] I am satisfied in the circumstances, as was the court below, that it was a tacit term of the agreement that it would remain suspended until the subdivision application lodged by the respondent was finally determined. The agreement therefore complies with the provisions of s 2(1) of the Alienation Act.

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