THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

REPORTABLE

Case number : 621/06

In the matter between :

HENRY FRASER

FIRST APPELLANT
MAGDALENA GERTRUIDA FRASER
SECOND APPELLANT

and

JOHANNA JACOMINA VILJOEN

RESPONDENT

CORAM :

SCOTT, CAMERON, MTHIYANE, COMBRINCK,
CACHALIA JJA
DATE :

7 MARCH 2008
DELIVERED :
27 MARCH 2008

Summary:

Sale of immovable property – authorising other party to
insert material terms after delivery of uncompleted document
– non-compliance with s 2(1) of Alienation of Land Act 68 of
1981

Neutral citation:
Fraser v Viljoen (621/2006) [2008] ZASCA 24 (27 March
2008)

COMBRINCK JA/

COMBRINCK JA:

[1] This appeal concerns yet another of the seemingly unending number of
cases where it is in issue whether a contract for the sale of immovable property
complies with the provisions of the Alienation of Land Act, 68 of 1981 (‘the Act’).
The appellants seek to enforce an agreement in terms of which they purchased a
flat situated at Blythedale Beach KwaZulu-Natal. The respondent claims the
agreement is null and void due to non-compliance with s 2(1) of the Act1.

[2] The question for decision is one of law and is to be determined against the
following factual background. The appellants occupy a flat described as 29 Wild
Waves, Blythedale Beach, as lessees in terms of a monthly lease. The
respondent is the lessor and owner. In April 2003 pursuant to a telephone call in
which Mr Viljoen (respondent’s husband) confirmed a willingness to sell, the
appellants sent an offer in the form of an uncompleted printed form relating to the
purchase and sale of property held under sectional title to respondent. The
names of the parties were left blank as was a description of the property. The
purchase price of R180 000 was typed in in the appropriate clause as was the
name and address of the appellants’ conveyancer. The offer was unsigned. It
was forwarded under cover of a letter in which the following was said:

‘Dear Mr Viljoen
Re: Purchase and sale Agreement.
Kindly sign the enclosed agreement and post it back to me. You will notice that paragraphs 2.3.
(a) is not completed as I do not have the description. Please let me have a copy of the title deed
to enable us to draw the transfer papers properly. As soon as I receive the documents from you
we will go ahead with the registration and transfer.
Thanking you in anticipation
Henry Fraser.’

On receipt of the document Mr Viljoen telephoned the appellants and advised
that he was prepared to accept a price of R185 000. The first appellant then
agreed to pay this price and requested the respondent to alter the figure and

1 ‘No alienation of land after the commencement of this section shall, subject to the provisions of
section 28, be of any force or effect unless it is contained in a deed of alienation signed by both
parties thereto or by their agents acting on their written authority.’

return the document. When the document was returned to the appellants, it now
contained the following in manuscript:
(i)
The name of the seller (respondent);
(ii)
Alteration of the price to R185 000;
(iii)
The signature of respondent as seller together with the date and place of
signature;
(iv)
The signature of two witnesses;
(v)
The initialling of all alterations and each page by respondent and her two
witnesses.

The document was inchoate containing neither the name of the purchasers, nor
their signature, nor a description of the property. The appellants then obtained
the full description of the property, inserted it in the document and they both
signed it omitting, however, to record the date of signature. The document was
then given to the appellants’ conveyancer to effect transfer. Thereafter for more
than a year the conveyancers attempted in vain to get respondent to sign the
documents necessary to effect transfer. She did, however, during February 2004
send a copy of her identity document when called upon to do so. Eventually by a
letter dated 18 May 2004 the respondent indicated that she was no longer
interested in disposing of her property. In a subsequent affidavit she said that
they were no longer interested in selling as they intended moving into the flat and
spending their retirement there.

[3] The appellants on notice of motion sought a declaratory order to the effect
that the contract of purchase and sale was valid and binding and that an order
should issue compelling respondent to sign the necessary documents to effect
transfer. The application was opposed on several grounds. The matter came
before Pillay J in the Durban High Court. He dismissed the application on two
grounds, first he held that the date of conclusion of the agreement was material
as it impacted on other terms and the omission was fatal to the validity of the
agreement. Second, he followed Sayers v Khan 2002 (5) SA 988 (C) and found
that the omission in the agreement to reflect the provisions of s 2(2A) of the Act
(the so-called ‘cooling off’ period) rendered the agreement null and void. (The
judgment was handed down before this court held that Sayers v Khan was

wrongly decided – see Gowar Investments (Pty) Ltd v Section 3 Dolphin Coast
Medical Centre CC 2007 (3) SA 100 (SCA).) Leave to appeal was granted by the
court a quo because of the conflicting judgments in the provincial divisions in the
Sayers and Gowar Investments cases (the latter reported in 2006 (2) SA 15 (D).)
From the judgment of Pillay J it does not appear that the issue raised before us
was argued and the learned judge obviously did not deal with it.

[4] The issue debated before us was whether in the light of the decisions of
this court in Fourlamel (Pty) Ltd v Maddison 1977 (1) SA 333 (A) and Jurgens v
Volkskas Bank Ltd 1993 (1) SA 214 (A), the agreement complied with s 2(1) of
the Act. Fourlamel dealt with a deed of suretyship which was incomplete when
signed by the surety. At that stage the name of the co-surety did not appear on
the document nor had he signed it. Neither the name of the creditor nor that of
the principal debtor had been filled in. These details were inserted at a later
stage after signature. It was held that in order to comply with the section all the
material terms had to be contained in the document at the time of signature. In
Jurgens (also a case dealing with a deed of suretyship) greater leeway was
given. In that case when the sureties signed the deeds they were incomplete and
inchoate. The blank spaces were, however, filled in by secretaries after signature
and then delivered to the bank for its signature. It was held that it is immaterial
when the document was signed by the first party, whether before or after the
missing terms had been filled in or alterations made, as long as all the material
terms were in the document when it was delivered to the other party. The time of
delivery to the other party for signature is therefore crucial and not the time of
signature by the first party. It was common cause that the reasoning in these
cases is equally applicable to incomplete deeds of sale of immovable property.
(See Just Names Properties 11 CC v Fourie 2008 (1) SA 343 (SCA).)

[5] Counsel for the appellants conceded that on the authority of Jurgens there
had been non-compliance with s 2(1), it being common cause that the document
in question did not contain a description of the property nor the names of the
purchasers when delivered to the appellants by the respondent. He argued
however, that the respondent had appointed the appellants as her agent for the
purpose of completing the document by inserting a description of the property

and their names as purchasers. On carrying out their mandate the agreement
became valid and binding. Respondent’s counsel disputed the contention that on
the papers it could be found that the appellants had been given the authority
contended for by them. Even if they were so authorised, so it was submitted, to
allow such evidence would open the door to the very mischief the Act was
intended to address.

[6] I shall accept without deciding that the respondent did authorise the
appellants to fill in a description of the property. The question is, were the
provisions of s 2(1) satisfied when appellants, duly authorised, completed the
document when respondent had already signed it? The question was considered
in Fourlamel where Miller JA at 344A-D had the following to say:

‘What is important to note in that connection, however, is that the question left open by the Court
[in the matter of Levin v Drieprok Properties (Pty) Ltd 1975 (2) SA 397 (A)] related to an alteration
made by the offeror's agent, not by any other person. Here, the additions to the deed of
suretyship were not made by the respondent or his agent. The suggestion made by appellant's
counsel that by signing the deed in blank the respondent tacitly authorized the appellant to fill in
the blanks on his behalf, is untenable. Apart from the circumstance that the appellant, in a
transaction of the kind that requires the terms of the agreement to be in writing, would be acting in
the dual capacity of one of the contracting parties and the agent of the other contracting party (as
to which, see Restatement of the Law, 2nd ed., vol. 1, para. 24, comment b), there is nothing in
the papers to warrant an inference that such authority was given to the appellant or any other
person.’

Although obiter, the reasoning is persuasive. The comment in the Restatement of
the Law referred to by the learned judge reads:

‘(b)
A party to a transaction within the Statute of Frauds cannot orally confer power upon the
other party to the transaction to sign effectively a memorandum required to satisfy the provisions
of the Statute.’

The same attitude seems to have been adopted in English Law. See Wilson &
Sons v Pike [1949] 1 KB 176 at 180 where the decision in Farebrother v
Simmons (1822) 5 B and A – 333 was quoted with approval but distinguished on

the facts. The following was quoted in Wilson from the head note of the latter
case:

‘The agent contemplated by s 17 of the Statute of Frauds, who is to bind a defendant by his
signature, must be a third person, and not the other contracting party; and therefore, where an
auctioneer wrote down the defendant’s name by his authority opposite the lot purchased: Held,
that in an action brought in the name of the auctioneer, the entry in such book was not sufficient
to take the case out of the Statute.’

The reason for adopting this approach is not difficult to find. It is sought to obviate
disputes about the terms of agreements, exclude the possibility of fraud and
perjury and avoid unnecessary litigation – the very mischief these types of
statutes are aimed at. See in this regard Johnston v Leal 1980 (3) SA 927 (A) at
946H per Corbett JA:

‘The other possible obstacle to the admission of extrinsic evidence in this case is s 1 (1) itself and
the policy underlying it, viz as already indicated, the prevention of uncertainty and disputes
concerning the contents of contracts for the sale of land and of possible malpractices in regard
thereto. The main effect of the section is to confine the parties to the written contract and to
preclude reliance on an oral consensus not reflected therein.’

See further Fourlamel (supra) at page 343A and Philmatt (Pty) Ltd v Mosselbank
Developments CC 1996 (2) SA 15 (A) at 25C-D. Were the one party to an
agreement of sale of immovable property to appoint the other to be its agent for
the aforementioned limited purpose of filling in a description of the property sold
and the name of the purchaser the object of the legislation would be nullified. It
would open the door to uncertainty as to precisely what the parties orally agreed
upon and what the other party was authorised to do. The object of certainty
would disappear. Had the Frasers returned the document to Viljoen for signature
after the description of the property and the names of the purchasers had been
inserted, there would have been a valid and binding agreement. Unfortunately
this was not done. It follows that, in my view, the agreement is void for non-
compliance with the Act. This conclusion makes it unnecessary to consider the
question whether the date of conclusion of the agreement in this particular case
was material.

[7] It follows that the appeal must fail. The following order is made:
The appeal is dismissed with costs.

………………………
P C COMBRINCK
JUDGE OF APPEAL
Concur:
SCOTT JA
CAMERON JA
MTHIYANE JA
CACHALIA JA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

Case number:  621/06
In the matter between

HENRY FRASER

FIRST APPELLANT
MAGDALENA GERTRUIDA FRASER
SECOND APPELLANT

and

JOHANNA JACOMINA VILJOEN

RESPONDENT

From:
The Registrar, Supreme Court of Appeal
Date:
2008-03
Status:
Immediate

A couple living in Blythedale Beach, KZN, attempted to enforce a
contract of sale of a flat to them. They were unsuccessful in the Durban
High Court. In a judgment of the SCA, they, having taken the matter on
appeal, were again unsuccessful though for different reasons.

What had happened was, the purchaser had sent an incomplete pro
forma agreement of sale for the sellers to complete and sign. The price
had been agreed upon at R185 000. The agreement was returned
signed, but without a description of the property sold and the names of
the purchasers. These were filled in later by them but without sending
the agreement back for further signature. The court held that the one
party could not orally appoint the other to fill in material terms of the

contract and accordingly that it did not comply with the Alienation of
Land Act which requires all the terms of a sale to be in writing and
signed by the parties.

The contract was found to be null and void.