THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case number: 143/08

In the matter between:

LEGATOR McKENNA INC

FIRST APPELLANT

M H G McKENNA

SECOND APPELLANT

And

CLARE VERONICA SHEA

FIRST RESPONDENT

JAMIE ERSKINE

SECOND RESPONDENT

THE MASTER OF THE HIGH COURT
(NATAL PROVINCIAL DIVISION)

THIRD RESPONDENT

THE REGISTRAR OF DEEDS
(PIETERMARITZBURG)

FOURTH RESPONDENT

ABSA BANK LIMITED

FIFTH RESPONDENT

Neutral citation:
Legator McKenna Inc v Shea (143/2008) [2008] ZASCA
144 (27 November 2008)

CORAM:

HARMS ADP, BRAND, CLOETE, PONNAN JJA et
LEACH AJA
HEARD:

17 NOVEMBER 2008
DELIVERED:
27 NOVEMBER 2008

CORRECTED:

SUMMARY:
Act 66 of 1965 – sale of estate property by curator bonis
prior to issue of letters of curatorship under s 72 of the
Act – subsequent transfer of property pursuant to sale –
abstract theory of transfer – validity of real agreement
notwithstanding invalidity of sale – non-availability of
enrichment claim.

ORDER

On appeal from:

High Court, Durban (Motala AJ)

sitting as court of first instance
1.
The appeal is upheld with costs, including the costs of two counsel
where employed.
2.
The order of the court a quo is set aside and substituted with the
following:
'The plaintiff's claim 1 is dismissed with costs.'

JUDGMENT

BRAND JA (Harms ADP, Cloete, Ponnan JJA et Leach AJ A concurring)

[1] The first appellant, Legator McKenna Inc, is an incorporated firm of
attorneys in Durban. The second appellant, Mr Michael McKenna
('McKenna'), is an attorney in that firm. On 8 March 2002 McKenna was
appointed as curator bonis to the estate of the first respondent, Ms Clare
Shea ('Shea'), by order of the Durban High Court. The reason for his
appointment was that Shea had been found incapable of managing her own
affairs as a result of brain injuries she sustained in a motor vehicle accident
on 5 February 2002. At the time, Shea was the registered owner of a house in
Berea, Durban. On 22 April 2002 McKenna, in his capacity as curator bonis,
purported to sell the house to a married couple, Mr and Mrs Erskine ('the
Erskines') – who are the joint second respondents in these proceedings – for
R540 000. The reason why I refer to the transaction as 'a purported sale' will
soon appear. In the interest of brevity and without prejudicing any issues,
however, I will henceforth refer to the transaction simply as 'a sale'. Pursuant
to the sale, the house was subsequently transferred to the Erskines by
registration in the Pietermaritzburg Deeds Office.

[2] Contrary to medical expectations, so it seems, Shea then recovered
from the consequences of her brain injuries, to the extent that the Durban
High Court declared her capable of managing her own affairs. This happened
on 10 March 2003. Slightly more than a year later she instituted an action in
the same court for the return of her house, which eventually led to the present
proceedings. The first three defendants in the action were the two appellants
and the Erskines. Other defendants, who abided the decision of the court,
were the Master of the High Court, the Registrar of Deeds and the bondholder
over the house who advanced the purchase price to the Erskines.  Litigation
thus proceeded between Shea, the two appellants and the Erskines.

[3] Shea's main claim in the action, referred to as claim 1, was essentially,
as I have indicated, that the transfer of her house to the Erskines be declared
invalid and that the house be returned to her against repayment of the
purchase price. I shall return later in more detail to the cause of action
advanced in support of this claim. Broadly stated, however, she contended
that the contract of sale between McKenna and the Erskines, which gave rise
to the transfer, was invalid in that it was concluded by McKenna before the
Master had issued him with letters of curatorship in terms of s 72(1)(d) of the
Administration of Estates Act 66 of 1965 ('the Act').

[4] Shea also formulated two claims for damages, claims 2 and 3, against
the two appellants; one in addition, and the other in the alternative, to her
main claim. These claims are not material to the appeal. Of some
consequence, however, albeit indirectly, is a conditional third party claim by
the Erskines against the two appellants. It is formulated on the supposition
that Shea would be successful in her claim for return of the house. In this
event, the Erskines claimed damages from the appellants in the amount of
about R1,7 million, for the loss they would allegedly suffer through McKenna's
breach of an implied warranty that he was authorised to sell Shea's house.

[5] At the commencement of the trial the parties asked the court a quo
(Motala AJ) to order a separation of issues. In terms of the separation order
the issues relating to Shea's main claim for return of the house were to be

decided first. The remaining issues concerning Shea's two claims for
damages, as well as the Erskine's conditional third party claim, stood over for
later determination. The parties also agreed that the issues surrounding the
main claim were to be decided on the factual basis set out in a document
entitled 'Admitted Facts' and the supporting documents attached thereto.
Despite an additional term of the agreement that any party would be free to
lead further evidence, no-one elected to do so at the trial.

[6] In the event, the preliminary issues were decided in favour of Shea.
Hence the court a quo declared the contract of sale concluded between
McKenna and the Erskines both illegal and void, and directed the Registrar of
Deeds to cancel the registration of transfer of the house to the Erskines,
against repayment of the purchase price by Shea. In addition, the two
appellants and the Erskines were ordered, jointly and severally, to pay the
costs of the preliminary proceedings. The two appellants then sought and
obtained the court a quo's leave to appeal to this court. The Erskines, on the
other hand, sought no such leave. That is why they were joined as joint
second respondents on appeal.  On the face of it, the court a quo's order
seems to have an immediate impact on the Erskines only. But in the light of
the outstanding issues, and particularly the Erskine's conditional third party
claim for damages against the appellants, it is apparent that the appellants
have a very real interest in the outcome of the appeal.

[7] Central to an appreciation of the issues on appeal is the sequence of
material events. Resulting from the way in which the facts were presented at
the trial, these events were not in dispute. A convenient date to start the
sequence is 8 March 2002. That, as we know, was the date upon which
McKenna was appointed as curator bonis to Shea's estate. On 27 March
2002, he instructed Wakefields Estate Agents, who had valued Shea's house
at R525 000, to find a purchaser for R550 000. On 19 April 2002, Wakefields
presented him with an offer, signed by the Erskines, for R520 000 which they
increased at McKenna's request to R540 000. On 22 April 2002 McKenna
signed the amended offer as seller. Alongside his signature he wrote the word

'curator' and below all that he added, again in his own handwriting and in
parenthesis '(subject to approval of Master of High Court)'.

[8] On 3 June 2002 the Master issued McKenna with letters of curatorship
in terms of s 72(1)(d) of the Act. At first sight the sale of the house by
McKenna before he obtained his letters of curatorship appears to have
occurred with unseemly haste. One's instinctive reaction is that, as an
attorney, he should have known better than to do so. But his reasons for
doing so appear from the documents attached to the 'Admitted Facts'.
Essentially they amounted to this: while the house was Shea's only asset
worthy of note, she had a number of pressing debts. Some of these debts,
such as the insurance premiums and rates and taxes on the house, could be
avoided by the sale. Others, like the premiums on her life policies and her
children's school fees, were in need of urgent settlement from the proceeds of
the sale. In the circumstances, McKenna obviously thought that it was in
Shea's best interests to sell the house as soon as possible. What McKenna
also knew was that Shea had herself attempted to sell the house for the
greater part of the previous year for R500 000, but that she had been
unsuccessful in obtaining a buyer at that price. He therefore considered
R540 000 a good price.

[9] To complete the chronological picture: on 17 July 2002 the Master
granted his consent for the sale of Shea's house. Transfer to the Erskines was
registered in the Deeds Office on 27 July 2002. In both the power of attorney
authorising the transfer, signed by McKenna, as well as the transfer deed
itself, the causa for the transfer is described as a sale which was concluded
between McKenna and the Erskines on 22 April 2002.

[10] The court a quo's reasons as to why, on these facts, Shea was entitled
to the return of the house can be summarised thus:
•
The agreement between McKenna and the Erskines was illegal and
invalid because it was concluded at a time when McKenna had not yet
received his letters of curatorship. In consequence, so the court held, the sale
constituted a contravention of s 71(1) of the Administration of Estates Act and

indeed rendered McKenna guilty of a criminal offence under s 102(1)(g) of the
Act.
•
Because the agreement of sale, which formed the causa of the transfer to
the Erskines, was invalid, Shea was entitled to the return of her property.
•
The jurisprudential basis for the return of the property to her is dependent
upon whether or not ownership passed notwithstanding the void underlying
causa for transfer.
•
If ownership did not pass, Shea had a real right to vindicate the property
as owner.
•
If, on the other hand, ownership did pass to the Erskines, Shea had a
personal right to claim the return of the property from them – as immediate
parties to the transaction – on the basis of the condictio ob turpem vel
iniustam causam.

[11] The appellants' answers to the court a quo's line of reasoning were
manifold. First among these was the contention that the court a quo erred in
finding that the sale agreement, which led to the transfer, constituted a
contravention of s 71(1) of the Act. In considering this contention, it seems
appropriate to start with the wording of s 71(1). In so far as relevant, the
section provides:
'(1) No person who has been . . . appointed . . . as provided in section seventy two
shall take care of or administer any property belonging to the minor or other person
concerned, or carry on any business or undertaking of the minor or other person,
unless he is authorized to do so under letters of tutorship or curatorship as the case
may be, granted . . . under this Act . . ..'

[12] Section 72, to which reference is made in s 71(1), covers a wide range
of tutors and curators for minors and other persons. The position of a curator
bonis, like McKenna, who was appointed by order of court, is governed by
s 72(1)(d). It provides as follows:
'(1)  The Master shall . . . on the written application of any person-
(d)
who has been appointed by the Court or a judge to administer the property of
any minor or other person as tutor or curator . . .
grant letters of tutorship or curatorship, as the case may be, to such person.'

To complete the legislative matrix, there is s 102(1)(g) of the Act. It provides
inter alia that:
'Any person who . . . contravenes or fails to comply with the provisions of section . . .
71 . . . shall be guilty of an offence and liable on conviction . . . to a fine or to
imprisonment for a period not exceeding twelve months.'

[13] The appellants' contention that the agreement of sale between
McKenna and the Erskines did not contravene s 71(1) was based on the
premise that it was not a final agreement, but conditional upon the Master's
approval of the transaction. As the factual basis for this premise they relied, of
course, on the words 'subject to approval of Master of High Court' which
McKenna inserted below his signature on the Deed of Sale when he
purported to accept the Erskines' offer on 22 April 2002. Because of this
condition, so the argument went, the sale would only become final and
binding if and when the Master's approval to the transaction had been
obtained. And, so the argument proceeded, because the Master would never
give his approval to a transaction unless and until he had issued letters of
curatorship to the curator bonis, the agreement would, as a matter of course,
only become final and binding after the requirement of s 71(1) had been
fulfilled. This, so the appellants argued, is exactly what eventually happened.
The Master only gave his approval to the sale on 17 July 2002. Then and only
then did the sale become binding. But by then McKenna's letters of a
curatorship had been issued. Thus, the appellants' argument concluded,
nothing was done by McKenna which could in any way impact on the property
of Shea before his letters of curatorship had been issued.

[14] The court a quo considered this line of argument and found it wanting.
The flaw in the argument, so the court held, was that the sale was entered
into by McKenna was not conditional, but from the outset final and
enforceable. The court's reasoning behind this conclusion went as follows:
The Master's consent to the transaction was required by s 80(1) of the Act.
The 'condition' imposed by McKenna was therefore already implied by law.
Since it was not an additional requirement, it could not in itself render the
agreement conditional.

[15] I do not agree with the court a quo's reasoning. First, I am not aware of
any rule that a contract cannot be rendered subject to compliance with a
condition imposed by statute. In fact, I can think of many examples which
would support a contention to the contrary. But be that as it may, as I see it,
the Master's consent was not directly required by s 80(1). According to this
section: 'no curator shall alienate or mortgage any immovable property which
he has been appointed to administer, unless he is authorised thereto by the
[High] Court or by the Master'. In terms of s 80(2) the Master's jurisdiction to
grant permission under s 80(1) is, however, limited to immovable property of
which the value does not exceed the amount determined by the Minister of
Justice in the Government Gazette. At all relevant times that amount was
fixed at R100 000 (see GN 2333 in GG 15 308 of 1 December 1993).
Because the value of Shea's house exceeded that amount, the Master had no
authority to authorise the sale under s 80(1). McKenna required the
permission of the High Court. That permission had, however, been granted
beforehand in terms of para 2(g) of the order appointing McKenna as curator
bonis to the estate of Shea, but subject to the following proviso in para 6 of
the order:
'The powers conferred upon the curator bonis in terms of paragraphs (a) to (j) of
paragraph 2 hereof shall be exercised subject to the approval of the Master of the
High Court.'

[16] McKenna was therefore obliged to acquire the Master's consent to the
transaction, not because of s 80(1) of the Act, but because of the provisions of
the court order. Thus understood, no reason has been suggested – and I can
think of none – why McKenna could not competently make his acceptance of
the Erskine's offer subject to the condition that there be compliance with a
requirement imposed by the order from which he derived his authority to sell
the property. On the contrary, because the offerors could not be expected to
have been aware of the terms of the court order, it was necessary for
McKenna to add this condition. Absent such condition, he ran the risk of
personal liability on the basis of an implied warranty of authority if the Master's
consent could ultimately not be obtained.

[17] The words inserted by McKenna would therefore render any
agreement between him and the Erskines subject to the suspensive condition
of the Master's approval. The question that immediately arises is whether in
these circumstances a conditional agreement of sale had been concluded
between McKenna and the Erskines, or whether there was no agreement at
all. What gives rise to the question is of course the trite principle that a binding
contract can only be brought about by an acceptance which corresponds with
the offer in all material aspects. 'Yes, but' does not signify agreement. At best
it is a counter-offer (see eg Jones v Reynolds 1913 AD 366 at 370-371;
Pretoria East Builders CC v Basson 2004 (6) SA 15 (SCA) para 9; R H
Christie The Law of Contract in South Africa 5 ed at 62-3 and the cases there
cited). Since the Erskines offered an unconditional agreement while McKenna
agreed to a conditional one, I think the difference between offer and
acceptance is clear. It follows that in my view McKenna did not accept the
offer by the Erskines, even though they may all have thought that he did. As a
matter of law, this purported acceptance constituted no more than a counter-
offer.

[18] An inevitable consequence of these conclusions is that a valid
agreement of sale could only come into existence if the Erskines
subsequently accepted McKenna's counter-offer. It was contended in
argument that the Erskines did so when they executed the conveyancing
documents. Apart from the fact that it does not appear from the agreed facts
what conveyancing documents, if any, the Erskines had executed, I have a
more fundamental difficulty with this contention. It arises from the requirement
in s 2(1) of the Alienation of Land Act 68 of 1981, namely that a sale of land
can only be valid if contained in a written deed of alienation, signed by both
parties or their agents acting on their authority. Although the execution of
conveyancing documents could conceivably constitute an implied acceptance
by conduct, such acceptance would not satisfy the requirements of this Act.
That much was expressly held in Jackson v Weilbach's Executrix 1907 TS
212. In that case there was no written agreement of sale. Nonetheless it was
argued that the declarations signed by both the purchaser and the seller for
transfer duty purposes constituted a written agreement within the meaning of

s 30 of Proc 8 of 1902, which was the predecessor to s 2(1). To this argument
Innes CJ gave the following answer (at 216):
'But do these declarations of purchaser and seller constitute such a contract? In form
they certainly do not; the declaration of the seller is not an offer, and the declaration
of the purchaser is not an acceptance. Nor is there anything to show that the parties,
when they signed these declarations, intended to enter into any contract. The
declarations were signed for revenue purposes, and they purport not to embody a
contract constituted in terms of the documents themselves, but to record that a prior
contract had been entered into at a date therein mentioned.'
(See also eg Van Zyl v Potgieter 1944 TPD 294 at 296; Meyer v Kirner 1974
(4) SA 90 (N) at 102D-H.)

[19] The finding that the purported sale between McKenna and the Erskines
was never properly concluded, renders it unnecessary to decide whether a
conditional agreement of sale, subject to the approval of the Master, would
constitute a contravention of s 71(1) of the Administration of Estates Act. The
appellants' argument that it did not rested on the proposition that such
agreement was in fact aimed at compliance, as opposed to a contravention, of
the section. Moreover, so the argument went, an agreement subject to such
condition would never put the estate of the ward at risk of an alienation
without the sanction of the Master. On a proper construction of s 71(1), so it
was argued, the acts of administration and taking care of the ward's property
that are prohibited by the section must be confined to transactions involving a
risk of prejudice to the estate of the ward. If it were otherwise, so it was
argued, appointed curators would commit a crime if, prior to the issue of their
letters of curatorship, they performed an act in the interest of their wards in
circumstances where everybody else would qualify as a negotiorum gestor.
(As to these circumstances, see eg Standard Bank Financial Services Ltd v
Taylam (Pty) Ltd 1979 (2) SA 383 (C); Daniel Visser Unjustified Enrichment
136.) Even though these arguments may have merit, they relate to an issue
which, for the reasons I have given, requires no determination in this case and
I would therefore prefer not to commit myself either way.

[20] This brings me to the next enquiry. Should the transfer of the house to
the Erskines be regarded as valid despite the invalidity of the underlying sale
which was the causa for the transfer? The appellants' contention that it
should, was rooted in the assumption that the abstract theory – as opposed to
the causal theory – of transfer has been adopted as part of our law. According
to the abstract theory the validity of the transfer of ownership is not dependent
upon the validity of the underlying transaction such as, in this case, the
contract of sale. The causal theory, on the other hand, requires a valid
underlying legal transaction or iusta causa as a prerequisite for the valid
transfer of ownership (see eg Trust Bank van Afrika Bpk v Western Bank Bpk
en Andere NNO 1978 (4) SA 281 (A) 301H-302H, Van der Merwe, Sakereg, 2
ed at 305-306). With regard to the transfer of movables our courts, including
this court, have long ago opted for the abstract theory in preference to the
causal theory (see eg Commissioner of Customs and Excise v Randles
Brothers and Hudson Ltd 1941 AD 369 at 398-9; Dreyer and Another NNO v
AXZS Industries (Pty) Ltd 2006 (5) SA 548 (SCA) para 17).

[21] Some uncertainty remained, however, with regard to the transfer of
immovable property. In the High Courts that uncertainty has been eliminated
in a number of recent decisions where it was accepted that the abstract
system applies to movables and immovables alike (see eg Brits v Eaton NO
1984 (4) SA 728 (T) at 735E; Klerck NO v Van Zyl and Maritz NNO and
Related Cases 1989 (4) SA 263 (SE) 273D-274C; Kriel v Terblanche NO
2002 (6) SA 132 (NC) paras 28-49). These decisions are supported by
academic authors advancing well-reasoned arguments (see eg D L Carey-
Miller The Acquisition and Protection of Ownership 128-130 and 168; C G van
der Merwe Sakereg op cit at 305-310; C G van der Merwe and J M Pienaar
2002 Annual Survey 466 at 481; Silberberg and Schoeman's The Law of
Property, 5 ed (by Badenhorst, Pienaar and Mostert, 76). In view of this body
of authority I believe that the time has come for this court to add its stamp of
approval to the viewpoint that the abstract theory of transfer applies to
immovable property as well.

[22] In accordance with the abstract theory the requirements for the passing
of ownership are twofold, namely delivery – which in the case of immovable
property, is effected by registration of transfer in the Deeds Office – coupled
with a so-called real agreement or 'saaklike ooreenkoms'. The essential
elements of the real agreement are an intention on the part of the transferor to
transfer ownership and the intention of the transferee to become the owner of
the property (see eg Air-Kel (Edms) Bpk h/a Merkel Motors v Bodenstein 1980
(3) SA 917 (A) at 922E-F; Dreyer and Another NNO v AXZS Industries (Pty)
Ltd (supra) para 17). Broadly stated, the principles applicable to agreements
in general also apply to real agreements. Although the abstract theory does
not require a valid underlying contract, eg sale, ownership will not pass –
despite registration of transfer – if there is a defect in the real agreement (see
eg Preller v Jordaan 1956 (1) SA 483 (A) 496; Klerck NO v Van Zyl and Maritz
NNO (supra) 274A-B; Silberberg and Schoeman op cit, 79-80).

[23] The court a quo found that in this case ownership did not pass because
of two defects in the real agreement. The first defect, so the court held, was
that McKenna's intention to transfer ownership had been motivated by the
mistaken belief that he had entered into a valid agreement of sale. In support
of this finding the court referred to the power of attorney to pass transfer
signed by McKenna, as well as the deed of transfer itself where the sale
agreement of 22 April 2002 was cited as the causa for McKenna's intention to
transfer the property. In this light, so the court held, it cannot be inferred that
McKenna intended to transfer the property even if the sale agreement turned
out to be null and void. In the same way as the court a quo, I also believe that
McKenna – as well as the Erskines, for that matter – probably thought that the
sale agreement of 22 April 2002 was valid and enforceable. And, albeit for
different reasons, I also share the court a quo's view that the parties were
mistaken in that belief. But I do not agree that a mistake of that kind could in
itself render the real agreement void. If that were the position, we would
effectively revert to the causal theory of transfer which we have jettisoned in
favour of the abstract theory. I say that because I believe that very few parties
(if any) to real agreements would deliberately give and receive transfer
pursuant to an underlying transaction which, to their knowledge, is void. If a

mistaken belief of this kind – whether unilateral or common – were therefore
to render the real agreement invalid, there would not be much left of the
abstract theory of transfer.

[24] In any event, a mistaken assumption about the validity of the
underlying causa constitutes a mistake in motive. With regard to mistakes of
this kind, it was said in Van Reenen Steel (Pty) Ltd v Smith NO 2002 (4) SA
264 (SCA) para 9:
'A party cannot vitiate a contract based upon a mistaken motive relating to an
existing fact, even if the motive is common, unless the contract is made dependent
upon the motive, or if the requirements for a misrepresentation are present.'
And in African Realty Trust Ltd v Holmes 1922 AD 389 at 403 it was said:
'But, as a Court, we are after all not concerned with the motives which actuated the
parties in entering into the contract, except insofar as they were expressly made part
and parcel of the contract or are part of the contract by clear implication.'
In consequence, I find that McKenna's mistake about the validity of the sale
had no effect on the effectiveness of the real agreement.

[25] The second defect in the real agreement found by the court a quo
essentially resulted from the following reasoning: The legislature's intention,
so the court held, was to visit a sale agreement in contravention of s 71(1)
with invalidity. Since that intention cannot be circumvented by application of
the abstract theory of transfer, the original non-compliance with s 71(1) could
not be cured by a real agreement. I do not agree with this line of reasoning.
For purposes of the argument, I assume, without deciding, that the legislature
intended any transaction in contravention of s 71(1) to be void. On this
assumption a sale concluded by a curator without letters of curatorship would
be invalid; so would a real agreement; and transfer by a curator without letters
of curatorship would therefore not pass ownership to the transferee (cf
Mngadi NO v Ntuli 1981 (3) SA 478 (D); D L Carey- Miller op cit at 164). But in
this case McKenna had received his letters of curatorship before he
concluded the real agreement. This means that he was properly authorised to
enter into that agreement when he did so. The real agreement therefore did
not contravene s 71(1). The fact that McKenna lacked authority when he

purported to enter into the prior agreement of sale, is of no consequence. In
view of the abstract theory, it did not affect the validity of the real agreement
(se eg Kriel v Terblanche NO 2002 (6) SA 132 (NC) para 46). To transpose
McKenna's lack of authority when he concluded the sale to the real
agreement is to ignore the implications of the abstract theory. I therefore hold
the view that the house was validly transferred to the Erskines. In
consequence I conclude that the court a quo erred in upholding Shea's claim
for the restoration of her property on the basis of the rei vindicatio.

[26] As I have said earlier, the court a quo further held that even if
ownership had duly passed to the Erskines, Shea was entitled to reclaim the
house from them on the basis of the condictio ob turpem vel iniustam causam.
Because of that finding, the court held that a defence based on what has
become known as the 'rule in Wilken v Kohler', was not available to the
appellants. Succinctly stated, the rule provides that, if both parties to an
invalid agreement had performed in full, neither party can recover his or her
performance purely on the basis that the agreement was invalid. The 'rule'
has its origin in an obiter dictum by Innes JA in Wilken v Kohler 1913 AD 135.
In context, Innes JA was dealing with performance under sales of land that
were invalid for want of compliance with a statute requiring the contract to be
in writing. In the course of his judgment he then stated (at 144) obiter, as it
turned out, that:
‘It by no means follows that because a court cannot enforce a contract which the law
says shall have no force, it would therefore be bound to upset the result of such a
contract which the parties had carried through in accordance with its terms. Suppose,
for example, an . . . [oral] agreement of sale of fixed property . . ., a payment of the
purchase price and due transfer of the land. Neither party would be able to upset the
concluded transaction on the mere ground that . . . it was in reality an agreement to
sell, invalid and unenforceable in law, but which both seller and purchaser proposed
to carry out.’

[27] This obiter statement has been criticised in CD Development Co (East
Rand)(Pty) Ltd v Novick 1979 (2) SA 546 (C) at 550F-553G and by academic
authors as a departure from the accepted approach to enrichment liability

(see eg De Vos Verrykingsaanspreeklikheid in die Suid-Afrikaanse Reg 3 ed
189; De Wet & Van Wyk Die Suid-Afrikaanse Kontraktereg en Handelsreg
5 ed Vol 1 326). Nonetheless it was referred to with apparent approval by this
court in Wilkens NO v Bester 1997 (3) SA 347 (SCA) at 362F and endorsed
by the legislature, specifically with reference to contracts of the sale of land,
invalid for non-compliance with formalities, in s 28(2) of the Alienation of Land
Act 68 of 1981. I shall return to this section. But, outside the sphere of cases
concerning the sale of land, the debate whether the rule in Wilken v Kohler
represents good law, continues (see eg Visser op cit 468; Eiselen en Pienaar
Unjustified Enrichment – A Casebook 2ed at 157; Wille's Principles of South
African Law 9 ed (General editor Francois du Bois) sv 'Unjustified Enrichment'
1068).

[28] Those who support the rule in Wilken v Kohler find justification for its
existence in the consideration that where both parties have performed in
accordance with the provisions of an agreement, albeit unenforceable, the
purpose of the transaction has been achieved and that there is therefore no
reason to interfere with the existing state of affairs. The underlying
consideration of policy seems to be that those who received exactly what they
bargained for should not be allowed to escape the consequences of a bad
bargain by means of an enrichment action which is intended to be an
equitable remedy (see eg Helen Scott Unjust Enrichment by Transfer in South
African Law: Unjust Factors or Absence of Legal Ground? Doctoral thesis
Oxford 2005 296 et seq; J C Sonnekus ‘Is die Ongegronde van Afgesproke
Prestasie Steeds Verryking?’ 2008 TSAR 605 at 610-612; Daniel Visser op cit
469-470). In the light of this explanation, which I find persuasive, I believe the
time has come for this court to express its unequivocal approval of the Wilken
v Kohler rule. Moreover, although on the facts of Wilken v Kohler Innes JA
was dealing with an agreement which he described as void (at 142) for non-
compliance with statutory formalities, I can see no reason why the rule should
not apply in a case where, despite the non-existence of any agreement, the
parties' intention has been achieved. In both cases the condictio indebiti
would normally be available because the transfer was motivated by a
mistaken belief relating to the validity or the existence of the underlying

agreement. And in both cases Wilken v Kohler would constitute an exception
to the condictio indebiti for the same reason, ie that the purpose of the
transaction had been achieved.

[29] From the 'achieved purpose' analysis it is clear, however, that the
Wilken v Kohler rule cannot apply where the purpose of the transaction is
prohibited by law. The law cannot preserve a transaction which it has
prohibited. It follows that a defence based on that rule is not available against
a claim brought under the condictio ob turpem vel in iustam causam. That
much was expressly held by this court in Afrisure CC v Watson NO [2008]
ZASCA 89 para 49 (see also M C C Bazaar v Harris & Jones (Pty) Ltd 1954
(3) SA 158 (T) at 162F; Daniel Visser op cit 415 note 1 and 470).

[30] The court a quo therefore rightly departed from the premise that if Shea
could rely on the condictio ob turpem vel in iustam causam, the Wilken v
Kohler defence would not be available to the appellants. The question is thus
whether Shea could rely on that condictio. I think not. Illegality of the
underlying transaction is an essential element of the condictio ob turpem vel
in iustam causam. That much is trite (see eg Afrisure (supra) para 5). On the
facts I have found, McKenna did not enter into any illegal agreement. He
either entered into an agreement which was invalid for lack of compliance with
the formalities prescribed by s 2(1) of the Alienation of Land Act 68 of 1981 –
because the Erskines accepted his counter-offer by implication, but not in
writing – or – in the absence of an implied acceptance – he entered into no
agreement at all. In the event of the former, the situation is governed by
s 28(2) of that Act which provides:
'Any alienation which does not comply with the provisions of section 2(1) shall in all
respects be valid ab initio if the alienee had performed in full terms of the deed of
alienation or contract and the land in question had been transferred to the alienee.'

[31] If, on the other hand, no agreement of sale came into existence
because there was not even an implied acceptance of McKenna's counter-
offer, the principle, in accordance with Wilken v Kohler, is that if both parties
to an invalid or purported agreement have performed in full, neither party can

recover where the lawful purpose of their transaction, common to them both,
has been achieved. In either event, Shea could not succeed with an
enrichment claim. It follows that, in my view, the court a quo erred in finding
that Shea was entitled to return of the house.

[32] In consequence it is ordered that:
(1)
The appeal is upheld with costs, including the costs of two counsel
where employed.
(2)
The order of the court a quo is set aside and substituted with the
following:
'The plaintiff's claim 1 is dismissed with costs.'

……………….
F D J BRAND
JUDGE OF APPEAL

APPEARANCES:

FOR APPELLANT:
D J SHAW QC
N SINGH SC

INSTRUCTED BY:
WOODHEAD, BIGBY & IRVING INC

DURBAN

CORRESPONDENTS:
CLAUDE REID

BLOEMFONTEIN

FOR RESPONDENT:
M PILLEMER SC

INSTRUCTED BY:
BERCOWITZ COHEN, WARTSKI ATTORNEYS

DURBAN

CORRESPONDENTS:
LOVIUS BLOCK

BLOEMFONTEIN
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
30 November 2005
Status:
Immediate
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

LEGATOR McKENNA INC

FIRST APPELLANT

M H G McKENNA

SECOND APPELLANT

And

CLARE VERONICA SHEA

FIRST RESPONDENT

JAMIE ERSKINE

SECOND RESPONDENT

THE MASTER OF THE HIGH COURT
(NATAL PROVINCIAL DIVISION)

THIRD RESPONDENT

THE REGISTRAR OF DEEDS
(PIETERMARITZBURG)

FOURTH RESPONDENT

ABSA BANK LIMITED

FIFTH RESPONDENT

Today the SCA upheld the appellants' appeal against an order by the
Durban High Court in favour of the first respondent. The appellants were,
Legator McKenna Inc, an incorporated firm of attorneys and  Mr Michael McKenna
('McKenna'), an attorney in that firm. On 8 March 2002 McKenna was appointed as
curator bonis to the estate of the first respondent, Ms Clare Shea ('Shea'), by order
of the Durban High Court. The reason for his appointment was that Shea had been
found incapable of managing her own affairs as a result of brain injuries she
sustained in a motor vehicle accident on. At the time, Shea was the registered owner
of a house in Berea, Durban. On 22 April 2002 McKenna, in his capacity as curator
bonis, sold the house to a married couple, Mr and Mrs Erskine ('the Erskines') for
R540 000. . Pursuant to the sale, the house was subsequently transferred to the
Erskines by registration in the Pietermaritzburg Deeds Office.

Shea then, contrary to medical expectations, recovered from the consequences of
her brain injuries to the extent that she was declared capable of managing her own
affairs. Subsequently she successfully instituted an action in the same court for the
return of her house which led to the present appeal.

Broadly stated, her cause of action for the return of her house which was upheld by
the Durban High Court, was that the contract of sale between McKenna and the
Erskines, which gave rise to the transfer, was invalid in that it was concluded by
McKenna before the Master had issued him with letters of curatorship in terms of
s 72(1)(b) of the Administration of Estates Act 66 of 1965.

The Supreme Court of Appeal held, however, that an agreement of sale never came
into existence in that on a proper construction of McKenna's purported acceptance
of the offer to purchase by Erskines it was in fact not an acceptance but a counter-
offer. Since this counter-offer had not been accepted by the Erskines, so the SCA
held, the requirements of a valid agreement of sale had not been satisfied.

Despite the invalidity of the underlying agreement of sale, so the SCA further held,
the transfer of Shea's house was, however, valid because McKenna had received
his letters of curatorship in terms of s 72(1)(d) of the Act before he caused Shea's
house to be transferred to the Erskines. The SCA furthermore confirmed a rule of
our law, that where both parties to a purported or invalid agreement had performed
in full, neither party can recover his or her performance where the legitimate and
lawful purpose of their transaction, common to them both, has been achieved.

That, in short, is why the SCA did not agree with the High Court's finding that Ms
Shea was entitled to claim the return of her house.