THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

CASE  NO: 324/06

Reportable

In the matter between :

JUST NAMES PROPERTIES 11 CC
First Appellant
ALEXANDER BALADAKIS
Second Appellant

and

NICOLAAS JACOBUS FOURIE
First Respondent
ANNIE SUSAN FOURIE
Second Respondent
CHARTRADE 247 CC
Third Respondent
SPIROS KOUTROUMANOS
Fourth Respondent
KLEANTHIS MAOURIS
Fifth Respondent
PLATINUM MILE INVESTMENTS 218 (PTY) LTD
Sixth Respondent
THE REGISTRAR OF DEEDS, PRETORIA
Seventh Respondent
_______________________________________________________________________
BEFORE:
BRAND, HEHER JJA and MHLANTLA AJA
HEARD:
14 SEPTEMBER 2007
DELIVERED:
28 SEPTEMBER 2007
SUMMARY:
Written agreement of an immovable property, whether
the sale agreement complied with the requirements set
out in section 2(1) of the Alienation of Land Act 68 of
1981, in circumstances where offer signed and delivered
by offeree in incomplete form.

NEUTRAL CITATION: This judgment may be referred to as Just Names
Properties v Fourie [2007] SCA 126 (RSA)
_______________________________________________________________________
MHLANTLA AJA

MHLANTLA AJA:
[1] The appellants appeal, with the leave of the court a quo, against a
judgment of the Johannesburg High Court (Jajbhay J), dismissing the
appellants’ claims with costs. The court a quo found that the written
agreement of sale of immovable property sought to be enforced by the
appellants was invalid as it did not comply with the provisions of s 2(1)
of the Alienation of Land Act 68 of 1981 (‘the Act’).

[2] Apart from the first, second and seventh respondents, the parties in
this matter are involved in the business of trading. On the one hand, the
appellants (together with the second appellant’s family) operate three
Pick ‘n Pay Family Supermarkets in Kempton Park, and on the other, the
third to sixth respondents run a supermarket called Glen Acres Spar in the
vicinity of the appellants’ businesses. They also own other businesses in
the area. The fourth and fifth respondents are members of the third
respondent and directors of the sixth respondent. The first and the second
respondents (‘the Fouries’) are husband and wife. They jointly own the
immovable property described as Holding 26, Kempton Park Agricultural
Holdings (‘the property’).

[3] The second appellant (‘Baladakis’), acting on behalf of the first
appellant, wanted to establish a fourth supermarket in the same area and
offered to purchase the property from the Fouries. His offer which was
contained in a written document signed by him was presented to the
Fouries on 17 January 2003 by an estate agent, Ms Julie Oosthuizen
(‘Oosthuizen’). Baladakis offered to buy the property for R1.8 m. What
happened, according to the testimony of the Fouries, was that Oosthuizen
read the document to them clause by clause. It inter alia contained a
clause 4.2 which required them to pay occupational rent in the amount of

R10 000 per month, after transfer of the property into the purchaser’s
name. Oosthuizen also assured them that they would have the entire
purchase price ‘in their pockets’ in three months’ time.

[4] The Fouries rejected the clause that required them to pay
occupational rent, contending that they could easily find cheaper
accommodation elsewhere. In order to avoid the collapse of the
negotiations, Oosthuizen left the room to telephone Baladakis for
instructions to change the controversial clause. Meanwhile having made
their point, the Fouries who were otherwise satisfied with the offer,
signed and initialled each page.

[5] The proposed agreement was subject to a suspensive condition that
within six completed calendar months from the first day of the month
succeeding acceptance of the offer, the purchaser would be able to obtain
approval in principle to the establishment of a township on the property
with a specific business zoning.

[6] Oosthuizen informed the Fouries upon her return that Baladakis
had agreed that the offer be amended by deleting the clause in question.
She told them that such an amendment would be effected by replacing the
page with a new page which would omit the clause. To facilitate the
amendment she asked them to initial two blank sheets of papers, which,
they did. Oosthuizen took the signed sheets and offer with her when she
left them. On the following day she returned to the Fouries’ house and
gave them a sealed envelope containing the amended document on which
the appellants have based their claims in the present case. Without
showing any interest in its contents the Fouries put the envelope aside
still unopened. It is common cause that page 3 of the agreement relied

upon by the appellants, which contains the amended clause 4.2, is in a
different font and that it reflects the true agreement between the parties.

[7] After the expiry of about three months the Fouries were unhappy
that the sale had stalled and that they had still not received the promised
purchase price. They were unhappy with Oosthuizen’s explanation for the
delay and upon investigation discovered that she had lied to them about
the lodging of a rezoning application to the municipality.

[8] On 13 May 2003 the Fouries sold the same property to the third
respondent for R1.9 m. On 28 May 2003 an attorney, Nel, representing
the Fouries, purported to cancel the agreement by sending a registered
notice to Baladakis. On 29 May 2003 the property was transferred into
the name of the third respondent and a mortgage bond was registered over
the property in favour of the sixth respondent, securing an indebtedness
of the third respondent. It is these events which prompted the institution
of the action by the appellants against the respondents. Broadly stated
they sought an order setting aside the transfer and the mortgage bond
registered over the property and for transfer of the property in their
names. For present purposes the respondents raised two defences in the
alternative: that the agreement was invalid for non-compliance with s 2(1)
of the Act; alternatively, that the Fouries had cancelled the agreement
because of Oosthuizen’s fraud relating to the suspensive condition.

[9] By agreement between the parties the court below ordered a
separation of the issues. The issues to be determined at the initial stage
were whether the agreement between the appellants and the Fouries
complied with s 2(1) of the Act and if so, whether the Fouries were
entitled to repudiate it on the basis that it was induced by fraud.

[10] The first defence raised two issues: firstly, the issue of fact,
whether page 3 had indeed been signed in blank and, secondly, the issue
of law, whether that would render the agreement invalid in terms of
s 2(1). Jajbhay J decided both these issues in favour of the respondent.
Thus the first defence was upheld. In consequence, it was not necessary
to address the second defence.

[11] I shall first deal with the factual issue, that is, whether the Fouries
signed the document or part of it in blank. In my view the Fouries’
version that they were not satisfied with the offer presented and that
Oosthuizen telephoned Baladakis and told him about their concerns has to
be accepted. Baladakis authorised Oosthuizen to change the clause in
accordance with the Fouries’ request. Baladakis also confirmed this when
he testified. It was never put to the Fouries that they had signed page 3
after Oosthuizen had typed it.

[12] Even if the Fouries were as untrustworthy with regard to their
evidence in general as counsel for the appellants contended, their version
on the issue under consideration is a simple one and there is nothing to
gainsay it because Oosthuizen was not called to testify by the appellants.
This is despite the fact that she was available and had consulted with the
appellants’ legal representatives. It is common cause that the Fouries are
unsophisticated people who tend to sign whatever is presented to them
without first reading it. Why would they lie about the issue of signing a
blank piece of paper? Furthermore, how would they know about the
legality and consequences of signing in blank? These questions remained
unanswered, save for the speculation by counsel for the appellant on the
possible conduct of the Fouries.

[13] In my view there is nothing improbable in their version and it is
accordingly not necessary to deal with credibility findings. In the result
all that the court knows is that the Fouries signed two blank pieces of
paper which were completed subsequently. It is obvious that page 3 was
prepared separately, as the typeface and font differs from that of the other
pages.

[14] I turn now to consider the issue of law. Section 2(1) of the Act
provides:
‘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.’

[15] The appellants’ argument that, even if the Fouries signed page 3 in
blank, the agreement still complied with these statutory provisions, was
primarily founded on the construction that the amendment of page 3
rendered the document a counter-offer made by the Fouries as offerors
which was accepted by Baladakis as offeree. On this construction,
counsel for the appellants submitted, it did not matter that the document
had been incomplete at the time of signature by the offeror as long as it
was completed in accordance with the offeror’s intention at the time of
acceptance by the offeree.

[16] It is clear that this whole argument is rooted in the decision of
Jurgens and others v Volkskas Bank Ltd.1 Jurgens must in turn be read in

1 1993 (1) SA 214 (A).

the light of Fourlamel (Pty) Ltd v Maddison2  Both these cases concerned
deeds of suretyship. In construing a provision similarly worded to s 2(1)
of the Act, but pertaining to deeds of suretyships, Miller JA said in
Fourlamel:3
‘The plain, grammatical meaning of the words used in sec 6 appears to be clear. The
section presupposes that an agreement of suretyship had been reached – “contract of
suretyship entered into” – and it provides thereafter that such an agreement shall not
be valid “unless the terms thereof are embodied in a written document signed on
behalf of the surety”.
What is it that requires to be signed by the surety? It is surely the written document
containing the terms of the agreement . . . .
In the case of an agreement which is not by law required to be in writing, it may be
that a document signed by a party before the terms of the agreement had been
embodied therein would be binding upon him in the absence of fraud or error in
connection with the recording of the terms and subsequent to his signature. . . . But,
where the terms of a contract are required by statute to be embodied in a document
and signed by a particular party as a manifestation of his assent to such terms, there
are considerable difficulties, both notionally and practically, in the way of acceptance
that insertion by another of the terms of the agreement after the party has appended
his signature to a blank piece of paper, constitutes compliance with such statute.’

[17] In Jurgens, the sureties, relying on Fourlamel, raised the defence
that when they signed the deeds, the documents contained blank spaces
which were only filled in by their secretaries after signature. It was
common cause that all these suretyships were returned to the bank (the
creditor) after they had been completed on behalf of the sureties. In the
light of these facts, this court held that Fourlamel was distinguishable.
The distinction appears from the following statement by Hoexter JA:4

2 1977 (1) SA 333 (A).
3 At 341H - 342B.
4 At 218J - 219B.

‘Suretyship is a bilateral jural act.  . . .  It is a contract which arises from agreement
between creditor and surety and it involves the acceptance of an offer. An offer is a
manifestation of the offeror’s willingness to contract, made with the intention that it
shall become binding as soon as it is accepted by the offeree. It is trite that an offer
cannot be accepted unless and until it has been brought to the attention of the offeree.
It need hardly be said that there is a fundamental difference between, on the one hand,
the situation in which after a surety has signed and delivered a blank form to the
creditor, the latter unilaterally completes the blank form by filling in some of the
contractual terms, [ie the Fourlamel situation] and, on the other hand, the situation in
which the surety has signed a blank form which is then filled in, by or for and on
behalf of the surety, before the document so completed is delivered to the creditor.’

[18] As I have said, it is therefore crucial to the appellants’ whole
argument, based on Jurgens, that it was the Fouries and not Baladakis
who made the (counter) offer. In the event, the simple answer to the
argument is, in my view, that Baladakis remained the offeror throughout.
The construction of a counter-offer finds no support in the evidence. A
counter-offer arises when an offeree rejects the original offer as a whole
or in part. A mere request during negotiations to modify a term does not
amount to a counter-offer. The critical issue in this matter is the telephone
call which was made by Oosthuizen. It is common cause that Baladakis
received a call from Oosthuizen while she was at the Fouries’ home and
that after the telephonic discussion, Baladakis instructed her to change the
relevant clause.

[19] The counter-offer argument was also contradicted by Baladakis
when he testified. He stated that, when he received the document, he
intended to regularise the contract so that it appeared on the face of it to
be a single composite document signed by him as offeror. The
replacement page was also initialled by the same witness to his signature

who had initialled the other pages. He conceded that he had initialled the
replacement page so that it would appear the same as all the other pages.

[20] It seems to me that a counter-offer would have arisen if the Fouries
had rejected the offer and changed the clause in writing without
contacting Baladakis. A classic example of a counter-offer can be found
in the case of Pretoria East Builders CC and Another v Basson5.

[21] On a proper construction of the Act, the offer had to be complete
when the Fouries accepted and signed it or at least had to be signed by
them in its completed form before they released it for delivery to the
other party (cf Standard Bank of SA v Jaap de Villiers Beleggings6. The
fact that they signed two blank pieces of paper is fatal to the whole
agreement. As Van Winsen J explained in Van Rooyen v Hume Melville
Motors (Edms) Bpk7:
‘What defendant signed was not an agreement but a piece of paper. It is true that the
placing on such piece of paper of a number of terms not embodied therein in writing
at the time that the defendant signed the paper might in form turn the piece of paper
into an agreement but it was certainly not an agreement when the defendant signed it
and accordingly it cannot be regarded as an agreement having force and effect.’

[22] The invalidity of the agreement cannot be cured by the fact that the
amended clause reflected the intention of the parties. The Fouries’
signature did not perform the function which the provisions of the Act
required them to perform, namely, to signify that the written offer to
which the signatures pertained, met with their agreement.

5 2004 (6) SA 15 (SCA).
6 1978 (3) SA 955 (W) at 958A-E.
7 1964 (2) SA 68 (C) at 71C-E.

[23] It follows therefore that the court a quo was correct when it held
that the first sale agreement did not comply with the requirements of
s 2(1) of the Act and was accordingly void and of no force and effect.

[24] In view of my conclusion it is not necessary to consider the second
defence. The appeal accordingly fails.

[25] In the result the appeal is dismissed with costs.

_____________________
N Z MHLANTLA
ACTING JUDGE OF APPEAL

CONCUR:
BRAND JA)
HEHER JA)
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

JUST NAMES PROPERTIES 11 CC & ANOTHER v N J FOURIE &
OTHERS

From:
The Registrar, Supreme Court of Appeal
Date:
28 September 2007
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.

* * *
The Supreme Court of Appeal today dismissed an appeal by Just Names Properties 11
CC against a judgment of the Johannesburg High Court which had ruled that the
agreement concluded by the appellants and the first and second respondents did not
comply with the provisions of section 2(1) of the Alienation of Land Act 68 of 1981 and
accordingly that it was invalid.

The appellants had instituted an action against the respondents seeking an order
enforcing the terms of the sale agreement as well as other ancillary relief. This action was
dismissed, whereafter the appellants approached this court with the leave of the court
below.

This court in dismissing the appeal agreed with the conclusion by the court a quo that the
first appellant had amended his offer upon the request of the first and second respondents
and that the agreement did not comply with the provisions of section 2(1) of the Act.