THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 286/17
In the matter between:

ANTON LOGGENBERG N O

FIRST APPELLANT

CHARLOTTA AUGUSTA
LOGGENBERG N O

SECOND APPELLANT

LEON LOGGENBERG N O

THIRD APPELLANT

CHARLOTTA AUGUSTA
LOGGENBERG N O

FOURTH APPELLANT

ANTON GEORG VORSTER N O
FIFTH APPELLANT

and

NICOLAAS PETRUS MAREE

RESPONDENT

Neutral citation: Loggenberg N O & others v Maree (286/2017)
[2018] ZASCA 24 (23 March 2018)

Coram:
Seriti, Wallis and Swain JJA and Pillay and Schippers AJJA

Heard:
20 February 2018

Delivered: 23 March 2018

Summary: Practice – pleadings – exception – non-compliance with s 2(1) of
the Alienation of Land Act 68 of 1981 – alleged sale of land not reduced to
writing – appellants orally agreed with respondent that he purchase a farm for
the benefit of a trust to be formed and that trust would be entitled to transfer of
the farm upon reimbursement of respondent’s costs – trustees seeking to enforce

oral agreement – vagueness – agreement not a contract of sale – not invalid in
terms of s 2(1) of Act 68 of 1981 – appellants’ pleadings disclosing a cause of
action and not vague – case remitted for trial.

ORDER

On appeal from: Free State Division of the High Court, Bloemfontein
(Daffue J sitting as court of first instance):
1 The appeal succeeds with costs.
2 The order of the high court is set aside and substituted with the following:
‘(a) The exception to the claim contained in prayers 1 and 2 of the plaintiffs’
particulars of claim is upheld and those prayers are struck out.
(b) The exception to the claim contained in prayer 3 of the plaintiffs’
particulars of claim is dismissed.
(c) The exception contained in paragraph 5 of the first defendant’s notice of
exception that the oral agreement pleaded in paragraph 26 of the plaintiff’s
particulars of claim is void for vagueness, is dismissed.
(d) Each party shall pay his/her own costs.’
3 The case is remitted to the high court for trial.

JUDGMENT

Schippers AJA (Seriti, Wallis and Swain JJA and Pillay AJA concurring):
[1] The Loggenberg family live on a farm called Weltevreden comprising
two pieces of land in Parys in the Free State. The farm was previously owned by
the Anton Loggenberg Familie Trust (the Family Trust). It is now in the
registered ownership of the respondent, Mr Nicolaas Maree, an attorney and
formerly a close friend of Mr Anton Loggenberg. The action from which this
appeal arises is an attempt by Mr Loggenberg, his wife and son (the plaintiffs),

in their capacities as trustees of the Chacoranja Trust (the Trust), to compel Mr
Maree to transfer Weltevreden to the Trust.

[2] Summons was issued in June 2016, accompanied by detailed particulars
of claim setting out the background to the case. Prior to the action being
instituted Mr Loggenberg and the Trust obtained an interdict against Mr Maree
preventing him from transferring Weltevreden to the fifth defendant, Mr Louis
Claassen, who had purchased it for R5.2 million. Mr Claassen played no role in
the present proceedings and it may well be that he is leaving the defence to Mr
Maree. The response to the particulars of claim was a notice of exception
delivered on behalf of Mr Maree. He did not plead over. The exception was
argued before Daffue J in the Free State Division of the High Court,
Bloemfontein, and upheld with costs. The present appeal is with his leave.

[3] The pleaded claim in summary was the following. Mr Loggenberg was
insolvent when the Family Trust was created in 1997 to protect the family’s
interests. He continued farming operations on the farm through two close
corporations. In 2007 the debts of the Family Trust and one of the close
corporations were consolidated and re-financed by a loan to the Family Trust of
some R2.3 million by clients of Maree & Bernard Attorneys. In 2010 when the
close corporation was liquidated it was discovered that the Family Trust was
indebted to it in an amount of R442 480. The liquidators obtained judgment for
this amount, a writ of execution was issued and Mr Maree bought the farm at a
sale in execution on 12 October 2011 in the circumstances described below.

[4] After taking advice from a Pretoria attorney, Mr Maree and Mr
Loggenberg entered into a contract for the benefit of a third party with the
following oral, alternatively implied, terms (the oral agreement). Mr Maree
would purchase Weltevreden at the sale in execution for the benefit of a new

trust to be created to protect the interests of Mr Loggenberg and his family.
Although Mr Maree would become the registered owner of the farm, Mr
Loggenberg and his family would continue to reside on Weltevreden and Mr
Loggenberg would continue his farming activities. Once the new trust was
established, Weltevreden would be transferred to it against payment to Mr
Maree of the costs he had incurred in acquiring and obtaining registration of the
farm in his name, and repayment of the loan to the clients of Maree & Bernard
Attorneys. Mr Maree would arrange the finance for this through Maree &
Bernard Beleggers. It was alleged that he would engage in reasonable and bona
fide negotiations with the Trust for the transfer of the farm, and with the
investors for the necessary finance. The newly established trust would in any
event be entitled to transfer of Weltevreden from Mr Maree against payment of
the amounts mentioned. Finally it was said to be an implied or tacit term that he
would not encumber or sell Weltevreden without entering into negotiations with
the Trust concerning implementation of the oral agreement.

[5] In accordance with the oral agreement, Mr Maree bought Weltevreden for
R500 000 on behalf of the trust to be created. The Chacoranja Trust was
established on 15 May 2012. Mr Loggenberg, his wife and Mr Maree were the
appointed trustees, authorised by the Master on 6 June 2012 to act in that
capacity in terms of s 6(1) of the Trust Property Control Act 57 of 1988. Mr
Maree resigned as trustee on 26 May 2016. It is alleged that the Trust accepted
the benefit conferred by the oral agreement and that at the beginning of 2013,
Mr Maree was informed that the Trust anticipated shortly thereafter being in a
position to pay the amounts that it was obliged to pay in order to procure
transfer of Weltevreden in its favour. However, it was alleged that Mr Maree
breached his obligations under the oral agreement by selling Weltevreden to Mr
Claassen for R5.2 million.

[6] The plaintiffs sought the following relief in the particulars of claim:

‘1. An order directing the first defendant to negotiate bona fide and reasonably with the first
to third plaintiffs, with the aim of concluding an agreement for the acquisition and transfer of
the Weltevreden farms with the trustees of the Trust.
2. An order in terms of which the first defendant is directed, on behalf of the investors of
Maree & Bernard Attorneys, to negotiate bona fide and reasonably with the trustees of the
Trust, in order to conclude an agreement for the financing of the Trust for the acquisition and
transfer of the Weltevreden farms.
3. In the alternative to prayers 1 and 2, an order in terms of which the first defendant is
ordered to:
3.1 transfer ownership of the Weltevreden farms to the trustees of the Trust at some time,
upon fulfilment of the tender and payment of the monies referred to in paragraph 42.2 of the
plaintiffs’ particulars of claim; and
3.2 take all necessary steps, sign documents and give instructions in order to transfer the
Weltevreden farms at some time to the trustees of the Trust.’1 (My translation.)

[7] Mr Maree took exception to the particulars of claim on the basis that they
did not disclose a cause of action. He raised three arguments in support of the
exception. First, he contended that the agreement alleged was an alienation of
land in the form of a sale, and invalid because it was not incorporated in a deed
of alienation as required by s 2 of the Alienation of Land Act 68 of 1981 (the
Act). Second, he alleged that the agreement was void for vagueness, both
because it embodied an agreement to agree on matters such as the terms of the
transfer and financing arrangements, and because in the absence of agreement

1 The order sought reads:
‘1. ‘n Bevel in terme waarvan die eerste verweerder gelas word om bona fide en redelikerwys met die eerste tot
derde eisers te onderhandel met die oogmerk om ‘n ooreenkoms ter verkryging van oordrag en transport van die
Weltevreden plase met die trustees van die Trust te sluit.
2.  ‘n Bevel in terme waarvan die eerste verweerder gelas word om namens die beleggers van Maree & Bernard
Prokureurs  bona fide en redelikerwys met die trustees van die Trust te onderhandel ten einde ‘n ooreenkoms ter
finansiering van die Trust ter verkryging van oordrag en transport van die Weltevreden plase te sluit.
3.  In die alternatief tot smeekbedes 1 en 2, ‘n bevel in terme waarvan die eerste verweerder gelas word om:
3.1 die Weltevreden plase in eiendom aan die trustees indertyd van die Trust oor te dra teen nakoming van die
tender en die betaling van die gelde waarna in paragraaf 42.2 van die eisers se besonderhede van vordering
verwys is; en
3.2 alle nodige stappe te doen, dokumente te teken en opdragte te verleen ten einde die Weltevreden plase aan
die trustees indertyd van die Trust oor te dra.’

on such matters the agreement was incurably vague. Third, and in anticipation
of an argument being raised that the common law should be developed to render
agreements to agree enforceable in law, he argued that this was not an
appropriate development of the common law.

[8] The relief sought in the exception was an order upholding it and either
dismissing the plaintiffs’ claims with costs, or striking out the particulars of
claim with costs. Alternatively, it asked that prayers 1 and 2 be dismissed or
struck out.

[9] The court a quo held that the particulars of claim did not sustain a cause
of action. On any reasonable construction thereof the Trust was required to pay
Mr Maree the costs incurred in purchasing the farm and related costs, together
with the outstanding loan of the Family Trust. This, the court said, was nothing
other than the ultimate sale of Weltevreden to the trustees of the Trust. It
concluded that the oral agreement was void for want of compliance with s 2(1)
of the Act. The court also upheld the exception on the ground of vagueness. It
found that the oral agreement as pleaded was so vague that the particulars of
claim would not be saved by evidence and was excipiable upon every
interpretation that the pleading could reasonably bear. Finally, the court a quo
held that the so-called agreement to negotiate so as to conclude a further
agreement, was void. In this regard the court found that there could not be any
suggestion of bona fide negotiations for the conclusion of an oral agreement
aimed at the alienation of immovable property. This was in direct conflict with
the relevant statutory requirements.

[10] The exception was upheld with costs, followed by the following
confusing and vague order:

‘2. All paragraphs in the plaintiffs’ particulars of claim that relate to the relief sought in
prayers 1 & 2, including the relevant prayers, are struck out with costs, including the costs of
two counsel.’2 (My translation.)
The doctrine of vagueness, based on the rule of law, is a foundational value of
our constitutional democracy. It requires laws to be written in a clear manner
with reasonable certainty but not perfect lucidity.3 Court orders must comply
with this standard: vague provisions in a court order violate the rule of law.4

[11] Neither counsel was able to say what paragraph 2 of the order meant or
which portions of the particulars of claim survived. In addition, the plaintiffs
were granted leave to amend the particulars of claim and the question arises:
which paragraphs required amendment? Nor was it clear that the order correctly
reflected the intention of the learned judge. Although prayer 3 of the order was
not expressly struck out, the judgment itself made it clear that the prayer could
not be sustained both on the ground that it embodied an agreement that did not
comply with s 2 of the Act and because the agreement was in any event too
vague to be enforceable. Finally the argument in this court was rendered more
confusing by a concession by counsel for the plaintiffs that he would no longer
pursue the claim in terms of prayers 1 and 2. This led his opponent to submit
that the appeal had effectively been abandoned.

[12] It is clear from the judgment that the court found that the agreement to
transfer Weltevreden to the Trust constituted a contract of sale which was
invalid because it did not comply with s 2 of the Act and was in any event
unenforceable. Those findings, as a matter of law, applied equally to the relief

2 Paragraph 2 of  the order of the court a quo reads:
‘Alle paragrawe in eisers se besonderhede van vordering wat verband hou met die regshulp aangevra in bedes 1
& 2, insluitende die betrokke bedes, word deurgehaal met koste, insluitend die koste van twee advokate.’
3 Affordable Medicines Trust & others v Minister of Health & others 2006 (3) SA 247 (CC) para 108; National
Credit Regulator v Opperman & others [2012] ZACC 29; 2013 (2) SA 1 (CC) para 46
4 Minister of Water & Environmental Affairs v Kloof Conservancy [2015] ZASCA 177; [2016] 1 All SA 676
(SCA) para 14.

sought in paragraph 3 of the particulars of claim and were the findings against
which leave to appeal was sought and granted. Indeed, counsel for the
respondent submitted that prayer 3, which was based on the validity of the oral
agreement to transfer Weltevreden (without further negotiation), was perhaps
erroneously not struck out. So, irrespective of whether the prayer remains, the
terms of the judgment are inconsistent with it being legally sustainable. The
submission that there is no longer an appeal before this Court save for the
question of costs, since the plaintiffs have abandoned the relief sought in terms
of prayers 1 and 2 of the particulars of claim, is incorrect.

[13] This brings me to the question whether the oral agreement fell foul of
s 2(1) of the Act, which reads:
‘Formalities in respect of alienation of land
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
the parties thereto or by their agents acting on their written authority.’

[14] The Act defines ‘alienate’ as meaning ‘sale, exchange or donation’. It
was not suggested that this transaction was either an exchange or a donation,
which left only a sale. This being an exception, the excipient had to persuade
the court a quo that upon every construction which the particulars of claim
could reasonably bear, no cause of action was disclosed.5 Put differently, Mr
Maree had to show that upon every reasonable interpretation of the oral
agreement, it contemplated the sale of Weltevreden to the Trust.

[15] A contract of sale is a consensual agreement by which one of the
contracting parties (the seller) binds itself to the other (the buyer) to exchange a
thing for a definite sum of money (the price) which the buyer promises to pay to

5 Lewis v Oneanate (Pty) Ltd & another 1992 (4) SA 811 (A) at 817F; Ocean Echo Properties 327 CC v Old
Mutual Life Assurance Company (South Africa) Ltd [2018] ZASCA 9 para 9.

the seller.6 The essentials of the contract are agreement upon the merx, the price
and the obligation of the seller to deliver the merx to the buyer.7

[16] The relationship between Mr Loggenberg and Mr Maree cannot be
described as being one of buyer and seller. Neither can the relationship between
the Trust and Mr Maree be so described. Instead, the oral agreement as pleaded
is based solely on the relationship between Mr Loggenberg and Mr Maree. This
is buttressed by the following allegations in the particulars of claim. The
Loggenberg family was in financial difficulty. Mr Maree agreed to purchase
Weltevreden on behalf of a trust to be formed and register the farm in his name
until the trust could acquire ownership of it. The Loggenberg family would
continue to live and farm on Weltevreden. After its establishment, the trust
would be entitled to transfer of Weltevreden upon reimbursement of Mr
Maree’s costs incurred in acquiring the farm (there is no hint of profit or
payment for his services) and payment of the amount owed to the clients of
Maree & Bernard Attorneys. Mr Maree would not be entitled to encumber or
sell the farm without negotiations concerning implementation of the oral
agreement.

[17] Further, it was alleged that at the sale in execution Mr Maree and Mr
Loggenberg informed members of the public that Mr Maree was buying
Weltevreden on behalf of the Loggenberg family and they were asked not to
push up the bids. In accordance with the oral agreement, Mr Maree bought
Weltevreden for R500 000 whereas its market value was R1 million. The Trust
was established in 2012 and Mr Maree (unlike a seller) and Mr Loggenberg
became trustees. Pursuant to a meeting in 2013 at which Mr Loggenberg
informed Mr Maree that the Trust would be in a position to repay the purchase

6 A A Roberts Wessels Law of Contract in SA 2 ed (1951) para 4419; Commissioner of Customs and Excise v
Randles Brothers & Hudson Ltd 1941 AD 369 at 400.
7 Commissioner for Inland Revenue v Wandrag Asbestos (Pty) Ltd 1995 (2) SA 197 (A) at 214J.

price and costs which Mr Maree had incurred in acquiring Weltevreden, on 27
March 2013 and 8 April 2013 amounts, each of R1 million, were paid into the
trust account of Bernard & Maree Attorneys for inter alia the acquisition of
Weltevreden by the Trust.

[18] These allegations in the particulars of claim must for present purposes be
assumed to be correct, unless they are clearly false or cannot possibly be
proved.8 Reasonably interpreted, the allegations are capable of sustaining a
cause of action that Mr Maree bought Weltevreden on behalf of the Trust and
took transfer thereof into his own name, with an undertaking to transfer the farm
to the Trust when called upon to do so, upon reimbursement of his costs and
payment of the loan by the Family Trust to Maree & Bernard Attorneys. So
interpreted, the oral agreement does not constitute a sale of Weltevreden to the
Trust. This is not new. More than a century ago in White v Collins,9 Ward J
explained the nature of such a claim as follows:
‘If A buys a property on behalf of B from C and takes transfer into his own name with a
promise to B to transfer it to him when called upon, B has an actio in personam to compel A
to transfer the property to him.’

[19] This statement by Ward J was approved in a minority judgment by
Greenberg JA in Du Plessis v Nel,10 that a promise by A to hold freehold
property registered in her name in trust for B is a contract to deliver such
property on demand, and is not a contract of sale of fixed property as
contemplated in the Transvaal Transfer Duty Proclamation 8 of 1902.11

8 Natal Fresh Produce Growers’ Association & others v Agroserve (Pty) Ltd & others 1990 (4) SA 749 (N) at
754J-755B.
9 White v Collins 1914 WLD 35 at 37.
10 Du Plessis v Nel 1952 (1) SA 513 (A) at 526H-527B.
11 Section 30 of the former Transfer Duty Proclamation read:
‘No contract of sale of fixed property shall be of any force or effect unless it be in writing and signed by the
parties thereto or the agent's duly authorised in writing.’

[20] This Court endorsed Greenberg JA’s view in Dadabhay v Dadabhay &
another.12 The appellant and the respondent entered into an oral agreement in
terms of which the respondent agreed to buy an erf from the Community
Development Board on behalf of and as nominee for the appellant, but refused
to transfer it when called upon to do so. A defence based on s 1(1) of the
General Law Amendment Act 68 of 1957 was dismissed.13 This Court held that
the oral agreement was neither a contract of sale nor a cession in respect of an
interest in land; and that the word ‘nominee’ may well have been used in the
relevant oral agreement to denote that the respondent would act as a trustee in
buying the property and thus would thereafter sign all documents, when called
upon by the appellant to do so, in order that it could be registered in her name.14

[21] Counsel for the respondent submitted that unlike Dadabhay, the
acquisition of Weltevreden by the Trust against payment of the price to be
determined and financed, was nothing other than a sale; that the Trust did not
even exist at the time of the stipulation in its favour; and that all it allegedly
acquired on acceptance of the stipulation was the right to purchase the farm at a
price to be determined and financed.

[22] The submission is unsound. A typical stipulatio alteri or contract for the
benefit of a third party, is a contract concluded between A and B for the benefit
of a third party C, who by accepting the benefit becomes a party to that contract
so that it is A and C who are bound to each other.15 Such a contract has been

12 Dadabhay v Dadabhay & another 1981 (3) SA 1039 (A) at 1048H-1049A; 1049G-1050A.
13 Section 1(1) of the General Law Amendment Act 68 of 1957 reads:
‘No contract of sale or cession in respect of land or any interest in land (other than a lease, mynpacht or mining
claim or stand) shall be of any force or effect if concluded after the commencement of this section unless it is
reduced to writing and signed by the parties thereto or by their agents, acting on their written authority.’
14 This judgment was followed in Du Plooy & another v Du Plooy & others [2012] 4 All SA 239 (SCA); [2012]
ZASCA 135 paras 32 and 33.
15 Crookes N O & another v Watson & others 1956 (1) SA 277 (A) at 291E-F; Joel Melamed and Hurwitz v
Cleveland Estates (Pty) Ltd; Joel Melamed and Hurwitz v Vorner Investments (Pty) Ltd 1984 (3) SA 155 (A) at
172A-E.

recognised as enforceable in relation to a company not yet formed.16 So, nothing
turns on the fact that the Trust was not in existence when the oral agreement
was concluded. It appears that the agreement was a fairly typical stipulatio
alteri. Once the Trust was established, by accepting the benefit of the oral
agreement, it could obtain the right Mr Loggenberg contracted for, ie the
transfer of Weltevreden. And since the oral agreement was capable of being
construed other than as a sale, it would not be prohibited by s 2(1) of the Act.
Of course, it is an entirely different matter whether the oral agreement can be
proved and whether the Trust indeed accepted the benefit of that agreement. But
these are matters for trial, not exception.

[23] What remains is the exception that the contract is void for vagueness. It is
a settled principle that the question whether a purported contract is void for
vagueness should not lightly be decided on exception.17 In this regard the
dictum of Harms JA in Namibian Minerals Corporation v Benguela
Concessions18 is particularly apposite:
‘Once a court is called upon to determine whether an agreement is fatally vague or not, it
must have regard to a number of factual and policy considerations. These include the parties’
initial desire to have entered into a binding legal relationship; that many contracts (such as
sale, lease or partnership) are governed by legally implied terms and do not require much by
way of agreement to be binding (cf Pezzuto v Dreyer and Others 1992 (3) SA 379 (A); that
many agreements contain tacit terms (such as those relating to reasonableness); that language
is inherently flexible and should be approached sensibly and fairly; that contracts are not
concluded on the supposition that there will be litigation; and that the court should strive to
uphold – and not destroy – bargains.'

[24] Given the nature of the oral agreement and that language used in a
contract should be approached sensibly and fairly, I do not think that the court a

16 McCullogh v Fernwood Estate Limited 1920 AD 204 at 205-206.
17 Murray & Roberts Construction Ltd v Finat Properties (Pty) Ltd 1991 (1) SA 508 (A) at 514F.
18 Namibian Minerals Corporation Ltd v Benguela Concessions Ltd 1997 (2) SA 548 (A) at 561G-I.

quo at the exception stage was able to say with certainty or the requisite degree
of confidence, that the agreement was not an enforceable contract on account of
vagueness and that the plaintiffs had no case. Instead, there remained the
possibility that evidence might resolve uncertainties in the oral agreement, such
as the amount that Mr Maree was authorised to bid for the farm; the identity of
the investors and the terms of the proposed finance for the acquisition of the
farm by the Trust; the effect on the oral agreement if the Trust did not obtain the
necessary finance; and Mr Maree’s reimbursement costs.19

[25] The remaining question regarding vagueness – the alleged mutually
destructive allegations in the particulars of claim, namely that there would be
negotiations for the transfer of Weltevreden, but that the Trust would in any
event be entitled to transfer of the farm – is no longer in issue since the
plaintiffs have abandoned paragraphs 1 and 2 of the relief sought. It follows that
the court a quo’s finding that the oral agreement as pleaded was so vague that
no evidence could resolve the uncertainties, cannot stand.

[26] In their written submissions and in oral argument the plaintiffs indicated
that they no longer intend to proceed with paragraphs 1 and 2 of the relief
sought and their claim that the common law should be developed so as to permit
enforceability of an agreement to enter into bona fide negotiations. In my view,
the plaintiffs’ approach was sensible: whether the common law should be
developed is not a matter that should be decided by way of exception.20 In any
event this Court has recently held that a development of the common law such
as was suggested by the plaintiffs is not justified on constitutional grounds and
the Constitutional Court refused leave to appeal against that judgment.21

19 Burroughs Machines Ltd v Chenille Corporation of SA (Pty) Ltd 1964 (1) SA 669 (W) at 676F-H, approved in
Murray & Roberts fn 17 at 514F.
20 H v Fetal Assessment Centre [2014] ZACC 34; 2015 (2) SA 193 (CC) para 26.
21 Roazar CC v The Falls Supermarket [2017] ZASCA 166 paras 16-24.

Therefore the exception to paragraphs 1 and 2 of the relief sought was properly
upheld and fairness dictates that each party should pay its own costs in respect
of the proceedings in the high court. The plaintiffs have been substantially
successful on appeal and there is no reason why costs should not follow the
result.

[27] The following order is made:
1 The appeal succeeds with costs.
2 The order of the high court is set aside and substituted with the following:
‘(a) The exception to the claim contained in prayers 1 and 2 of the plaintiffs’
particulars of claim is upheld and those prayers are struck out.
(b) The exception to the claim contained in prayer 3 of the plaintiffs’
particulars of claim is dismissed.
(c) The exception contained in paragraph 5 of the first defendant’s notice of
exception that the oral agreement pleaded in paragraph 26 of the plaintiff’s
particulars of claim is void for vagueness, is dismissed.
(d) Each party shall pay his/her own costs.’
3 The case is remitted to the high court for trial.

_______________________

A Schippers
Acting Judge of Appeal

APPEARANCES

For Appellant:
B Knoetze SC

Instructed by:

Symington & De Kok, Bloemfontein

For Respondent:
FH Terblanche SC (with him AJ Wessels and H
Struwig)

Instructed by:

Strydom & Bredenkamp Inc, Pretoria
EG Cooper Majiedt Inc, Bloemfontein
SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM
The Registrar, Supreme Court of Appeal

DATE
23 March 2018

STATUS
Immediate

LOGGENBERG N O & OTHERS v MAREE (286/2017) [2018] ZASCA 24 (23 March 2018)

Please note that the media summary is intended for the benefit of the media and does not form
part of the judgment of the Supreme Court of Appeal.

The SCA today set aside a decision by the Free State High Court which upheld an exception
to particulars of claim on the ground that they did not disclose a cause of action.

In 2011, Mr Loggenberg, a farmer in financial difficulty, and Mr Maree, a local attorney,
entered into an oral agreement that Mr Maree would purchase the Loggenberg’s family farm,
Weltevreden, at a sale in execution for the benefit of a trust that would be created to protect
the Loggenberg family interests. The farm would be registered in Mr Maree’s name until the
trust could acquire ownership of it, against reimbursement of Mr Maree’s costs in purchasing
and holding the farm. Mr Maree bought the farm for R500 000. It was alleged that he reneged
on the oral agreement and sold the farm to a third party for R5, 2 million. Mr Loggenberg
obtained an interdict to prevent the transfer of the farm to the third party. He then sought to
enforce the agreement but the high court held that the agreement to transfer the farm to the
trust was a sale which fell foul of s 2 of the Alienation of Land Act 68 of 1981 because the
agreement was not in writing. Mr Loggenberg appealed.

The SCA upheld the appeal and found that the particulars of claim disclosed a cause of
action. Properly interpreted, the oral agreement did not constitute a sale of the farm. The case
was remitted to the high court for trial.