Terry and Another v Solfafa and Others (2263/2019) [2019] ZAFSHC 143 (29 August 2019)
In this case the Applicants (a couple married in community of property) sought an order directing the First Respondent to sign all the documents necessary to allow the property they had bought to be transferred to them. In desperately trying to escape the consequences of having accepted the Offer to Purchase, the Respondent raised the following three defences:
1) No valid contract due to only one signature for the Applicants
Here Loubser, J found at:
[6] The Matrimonial Property Act 88 of 1984 leaves no doubt that the joint estate of those spouses is administered by both spouses concurrently, with the result that both husband and wife have equal capacity to perform juristic acts and equal powers to manage the joint estate, which powers can in most cases be exercised without the consent of the other spouse.1 Section 15(2) of the Act defines in which events the other spouse has to give written consent when a juristic act is performed. One of these events is where one of the spouses, as a purchaser, enters into a contract as defined in the Alienation of Land Act 68 of 1981, and to which the provisions of that Act apply.2 A contract is defined in the Alienation of Land Act as a deed of alienation, where the purchase price is payable in more than two instalments over a period of more than one year.3 It is common cause that the present contract is not one of that kind, and that written consent by the Second Applicant was therefore not required. The First Applicant had full capacity to bind the joint estate by signing the Offer to Purchase without the written consent of the Second Applicant.
[7] Mr Groenewald, appearing for the Applicants, referred the Court to an article published by Mr Roelie Rossouw in the GhostDigest of 12 February 2009, in which article he gave the same interpretation to the legislation referred to above. On the basis thereof, he expressed the view that the decision in Govender and Another v Maitin and Another 2008(6) SA 64 (D) was wrong. I respectfully agree with his views in this regard. The learned Judge in the Govender case seems to have assumed that in all cases of the sale of land, the written consent of the other spouse is required, which is not the position, as pointed out above. For this reason, the defence under this heading cannot succeed.
2) No valid contract because the Respondent’s agent was not mandated to communicate acceptance of the offer
Here the Respondent relied on the common law principle that, unless the contrary is established, a contact comes into being when the acceptance of the offer is brought to the notice of the offeror.
After considering the guidelines provided by Withok Small Farms (Pty) Ltd v Amber Sunrise Properties 2009(2) SA 504 (SCA), Loubser J found that:
[11] In the present case, the offer carries the heading “Offer to Purchase (This constitutes an Agreement of Sale upon Acceptance by the Seller)”.
It is further stated in the document that the offer is irrevocable ad that “the Seller agrees to sell the immovable property, together with the improvements thereon, to the Purchaser whom purchases from the Seller on the terms and conditions as set out in this Agreement.” Underneath this sentence the First Respondent signed as the Seller of the property. In the absence of any indication to the contrary, the inference is therefore unavoidable that it was the expressed intention of the parties that the mode of acceptance would be the signature of the First Respondent, and nothing more. The common law principle of acceptance by notice to the offeror, is clearly not applicable. In the premise, I find that the question whether Ms Leach was instructed not to communicate the acceptance to the Applicants, is irrelevant to the adjudication of this application. The defence under this heading can therefore not succeed.
3. The contract had lapsed because the following two suspensive conditions had not been fulfilled
1) Raising a mortgage loan within 30 days – this was met as FNB had accepted and informed the applicants in writing within the 30 day period; therefore the suspensive condition was fulfilled.
2) A “successful sale” of the applicants’ property within the sixty day period – based on the interpretation that registration of transfer had to have taken place to be deemed successful. In considering the interpretation, per Loubser, J at:
[15] The judgment in Koen v Punyer 1984 (1) SA 344 (SECLD) is to the point. The facts in that case are basically the same as in the present case, in that there appeared a suspensive condition in a deed of sale to the effect that the sale was subject to the successful sale of the defendant’s property. It was held by Solomon J, as he then was, that the phrase in question was intended by the parties to mean the successful signing of the deed of sale, and not the completion of the transaction and the payment of the purchase price. As far as the present case is concerned, I cannot think for a moment that the parties had the intention that the Applicants were to find a purchaser for the property, that they had to sign a deed of sale after a purchaser was found, that possible suspensive conditions in that deed had to be fulfilled, and that the registration of transfer into the purchasers name, all had to take place within the limited period of 60 days only.
[16] I therefore find that the phrase “successful sale” in the present agreement means nothing more than the successful signing of a deed of sale, as was found in the Koen case, supra. The defence raised by the First Respondent in this regard can therefore also not succeed.
The Application consequently succeeded.
1 Sections 14 and 15(1) of the Act
2 Section 15(2)(g)
3 Definitions, Section 1
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