THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

REPORTABLE
Case number:   625/02

In the matter between:

JOHANNES HEINRICH GEUE

FIRST APPELLANT
MONTSERRAT MARIA GEUE

SECOND APPELLANT

and

PIETER BLOMERUS NOTLING
VAN DER LITH

FIRST RESPONDENT
WANDRAG & HORN INCORPORATED
SECOND RESPONDENT

CORAM:

MPATI DP, STREICHER, BRAND, CONRADIE
and HEHER JJA
HEARD:

6 NOVEMBER 2003
DELIVERED:

20 NOVEMBER 2003

Summary:

Sale of portion of agricultural land without the consent of the Minister of Agriculture
required by s 3(e)(i) of Act 70 of 1970 – agreement null and void despite suspensive
condition rendering agreement subject to such consent being obtained.
_________________________________

JUDGMENT
_________________________________
BRAND JA/

BRAND JA:
[1] The owner of a farm sold an undivided portion of his land without
the consent of the Minister of Agriculture required by s  3(e)(i) of the
Subdivision of Agricultural Land Act 70 of 1970 ('the Act'), but subject to
the suspensive condition of such consent being obtained. Is this
agreement rendered void by the provisions of the Act?  That is the
question raised by this appeal.  Though the parties have somehow
accumulated a record of some 400 pages in the motion proceedings that
gave rise to the appeal, the salient facts can be stated quite simply. The
first respondent, ('Van der Lith') is the owner of the farm Canterbury 254
in the Limpopo Province. On 19 June 2001 he entered into a written
agreement with the first and second appellants in terms whereof he sold
a portion of Canterbury to them. For ease of reference I will refer to the
appellants, who are married to each other in community of property,
jointly, as 'Geue'. The farm Canterbury constituted 'agricultural land' as
defined in s 1 of the Act. At the time of the agreement it was not divided
into portions nor had the consent of the Minister of Agriculture for the
subdivision or for the sale, as required by s 3 of the Act, been obtained.
[2] The preamble to the agreement recorded the common intention of
the parties to have Canterbury subdivided in accordance with the Act,
while the operative provisions declared the agreement subject to such

subdivision. Since the subdivision was dependent on the Minister's
consent, the suspensive condition effectively rendered the agreement of
sale subject to such consent being obtained. Upon signature of the
agreement, Geue became liable to pay part of the purchase price, in an
amount of R200 000, to the attorneys responsible for the eventual
transfer of the property. Geue duly complied with this obligation. Pending
registration of transfer to Geue, the attorneys were instructed to keep this
money in trust. Subsequently, Geue brought an application in the
Pretoria High Court for an order declaring the agreement null and void by
reason of the provisions of s 3(e)(i) of the Act. They also sought an order
against the transferring attorneys, who were joined as second
respondent, for repayment of their R200 000. The attorneys did not
oppose the application. Van der Lith, on the other hand, not only
opposed the application by Geue but also brought a counter-application.
He sought an order, inter alia, declaring that the agreement had become
enforceable upon the fulfilment of the suspensive condition, the consent
by the Minister of Agriculture for the subdivision of Canterbury having
been obtained in the intervening period. The Court a quo (Van der Walt
J) refused the application by Geue and granted Van der Lith's counter-
application, in both instances with costs against Geue. The appeal by
Geue against these orders is with the leave of this Court.

[3] The critical provisions of the Act are contained, firstly, in s 3(e)(i)
and, secondly, in the definition of 'sale' in s 1. The relevant part of s
3(e)(i) provides that:
'[N]o portion of agricultural land, whether surveyed or not, and whether there is any
building thereon or not, shall be sold or advertised for sale … unless the Minister [of
Agriculture] has consented in writing.'
The definition of 'sale' was introduced for the first time by the Subdivision
of Agricultural Land Amendment Act 18 of 1981 which came into
operation on 4 March 1981. It reads as follows:
'"sale" includes a sale subject to a suspensive condition; and "sold" shall have a
corresponding meaning'.
According to the Afrikaans counterpart of the definition:
'[beteken] verkoop ook 'n verkoop onderworpe aan 'n opskortende voorwaarde'; en
het "verkoop" wanneer dit as werkwoord gebruik word, 'n ooreenstemmende
betekenis.'
[4] These provisions are commendably succinct and their meaning is,
at least on first impression, clear. More pertinently, first impressions
seem to indicate that, in view of the definition, the agreement under
consideration falls squarely within the ambit of the prohibition contained
in s 3(e)(i). After all, the agreement appears to be nothing other than a
sale, subject to a suspensive condition, of a portion of agricultural land,
which was concluded without the Minister's consent. The same

sentiments were obviously held by Van der Walt J in the Court a quo
when he said:
'Die statutêre bepaling van artikel 3(e)(i) van Wet 70 van 1970 is … ondubbelsinnig
en duidelik en het oënskynlik betrekking op die onderhawige ooreenkoms wat
nietigheid van die ooreenkoms tot gevolg sou hê.'
[5] Nevertheless, the learned Judge then proceeded to find that,
contrary to these first impressions, the agreement under consideration
does in fact not fall within the compass of s 3(e)(i). On what grounds did
he arrive at this somewhat surprising conclusion? Essentially, on the
basis that the Legislature could not have intended to prohibit an
agreement subject to a suspensive condition of the present kind,
because such prohibition would be so glaringly absurd that it could never
have been contemplated by the Legislature (see e g R v Venter 1907 TS
915). As to why it would be absurd, the learned Judge commenced his
motivation by identifying the essential purpose of the Act as an attempt
by the Legislature, in the national interest, to prevent the fragmentation
of agricultural land into small uneconomic units. This proposition,
incidentally, is well supported by authority (see e g Van der Bijl and
Others v Louw and Another 1974 (2) SA 493 (C) 499C-E; Sentraalwes
Personeel Ondernemings (Edms) Bpk v Wallis 1978 (3) SA 80 (T) 84E-
F; and Tuckers Land and Development Corporation (Pty) Ltd v Truter

1984 (2) SA 150 (SWA) 153H-154A). In order to achieve this purpose,
the Legislature curtailed the common law right of landowners to divide
their agricultural property by imposing the requirement of the Minister's
consent as a prerequisite for subdivision, quite evidently with the view
that the Minister should decline any proposed subdivision which would
have the unwanted result of uneconomic fragmentation. Having regard to
all this, so the Court a quo reasoned, an agreement of sale which is
subject to a suspensive condition of the present kind can never be said
to be in conflict with the object and purpose of the Act. On the contrary,
by rendering the effective part of the agreement subject to the same
requirement as the one imposed by the Act, i e the Minister's consent,
the suspensive condition is promoting the very purpose of the Act. In the
light of all this, so the Court a quo concluded, any interpretation of s
3(e)(i) which renders an agreement such as the one under consideration
a contravention of the section, would be glaringly absurd.
[6] This conclusion immediately elicits the question why the
Legislature found it necessary to introduce the extended definition of
'sale', by way of legislative amendment, so as to specifically include an
agreement of sale which is subject to a suspensive condition. In short,
what is meant by a 'suspensive condition' in the definition? The answer
to this question, given by the Court a quo, was that the 'suspensive

condition' contemplated by the definition of 'sale' is a condition which
depends on the happening of any uncertain future event other than the
Minister's consent. The Legislature's reason for introducing the extended
meaning of a 'sale', so the Court a quo explained, is to be understood
against the background of a long line of decisions, including decisions of
this Court, that an agreement of sale which is subject to a suspensive
condition does not constitute a 'sale' in legal parlance. In the light of
these decisions, the Court stated, parties to a transaction involving the
alienation of undivided agricultural land could circumvent the prerequisite
of the Minister's consent, which is required for a sale, by making their
agreement subject to a suspensive condition of some kind other than the
Minister's consent. This would then take their agreement outside the
ambit of a 'sale'. While the Legislature obviously had good reason to
prevent this kind of avoidance, so the Court concluded, it is impossible to
conceive why it would have intended to prohibit an agreement made
subject to the suspensive condition of the Minister's consent where the
very object is to ensure compliance with the requirement of the Act, as
opposed to the avoidance of this requirement.
[7] I agree with the proposition that the true reason for the introduction
of the extended definition of 'sale' through the legislative amendment in
1981 needs to be sought against the background of previous decisions

of our Courts. A good starting point in this investigation is the decision of
this Court in Corondimas and Another v Badat 1946 AD 548. In that case
the parties entered into an agreement for the sale of land which could, in
terms of s 5(2) of the statutory enactment concerned, only be validly
concluded under the authority of a permit issued by the Minister of the
Interior. At the time of the agreement, such a permit had not been
granted. The agreement was, however, made subject to the suspensive
condition of the permit being obtained. Under these circumstances, it
was held that s 5(2) of the enactment did not render the agreement
invalid. The ratio decidendi appears from the following dicta by
Watermeyer CJ at 551:
'… when a contract of sale is subject to a true suspensive condition, there exists no
contract of sale unless and until the condition is fulfilled. In other words, the
prohibited contract (e.g., a contract of sale), which is declared null and void by sec. 5
(2) of the Act unless the Minister consents to it, cannot come into existence unless
and until that condition is fulfilled. Until that moment, in the case of a sale subject to a
true suspensive condition, such as this is, it is entirely uncertain whether or not a
contract of sale will come into existence at some future time. Until that moment there
is certainly a legal relationship, contractual maybe …, existing between the parties,
which may ripen into a contract of sale, but, in the particular case in which the
coming into existence of a contract of sale is made, by agreement between the
parties, to depend upon consent to it having been given by the Minister, that

relationship is not one which is forbidden by the Act or declared by it to be of no force
and effect . … It is not forbidden, because, unless and until the Minister gives his
consent no contract "whereby one party acquires or purports to acquire land" comes
into existence and so soon as he has given his consent, thereby bringing into
existence a contract of that nature, the condition required by the Act for its validity
(viz., the consent of the Minister) has been fulfilled.'
[8] Corondimas was subjected to severe criticism by academic writers.
The notion that a sale is not a 'sale' simply because it is subject to a
suspensive condition, so they said, constitutes a departure from our
common law, in that the latter regards a sale subject to a suspensive
condition as a 'sale', right from the start (see e g D P de Villiers, 1943
THRHR 13 at 18-19; P J J Olivier 1980 De Jure 238; De Wet and Yeats,
Kontraktereg en Handelsreg 4ed 135-136; R H Christie, The Law of
Contract 4ed 156-157. See also the minority judgment of Joubert JA in
Tuckers Land and Development Corporation (Pty) Ltd v Strydom 1984
(1) SA 1 (A) 19-24 for a comprehensive discussion of the common law
on the subject.) In practice, however, the Corondimas case for many
years had little effect. As explained by Van Heerden JA, writing for the
majority in Tuckers Land and Development Corporation (Pty) Ltd v
Strydom supra (14G-H), the import of Corondimas only gained real
practical significance in the late 1970's as a result of two unrelated
pieces of legislation. The one was s 3(e) of the Act under consideration,

i.e. Act 70 of 1970, while the other was s 57A of the Town Planning and
Township Ordinance 25 of 1965 (T) ('the Transvaal Ordinance'). Where
s 3(e) of the Act, as we know, prohibited the sale of an undivided portion
of agricultural land without the Minister's consent, the Transvaal
Ordinance declared the sale of an erf in an unproclaimed township, to be
of no force and effect. Under the present Act cases then came before the
courts where undivided portions of agricultural land were sold without the
Minister's consent, but subject to the suspensive condition of that portion
being incorporated into the area of a municipality, in which event the
Minister's consent would become unnecessary, since the property would
cease to be 'agricultural land' as defined in the Act (see e g Sentraalwes
Personeel Ondernemings (Edms) Bpk v Nieuwoudt 1979 (2) SA 537 (C)
and Sentraalwes Personeel Ondernemings (Edms) Bpk v Wallis supra).
Similar issues arose with reference to the Transvaal Ordinance where
erven in unproclaimed townships were sold subject to the condition of
the township ultimately being proclaimed (see e g Wolmarans and
Another v Tuckers Land & Development Corporation (Pty) Ltd 1979 (1)
SA 663 (T) and Tuckers Land & Development Corporation (Pty) Ltd v
Soja (Pty) Ltd 1979 (3) SA 477 (W). Cf also Palm Fifteen (Pty) Ltd v
Cotton Tail Homes (Pty) Ltd 1978 (2) SA 872 (A).) In all these cases it
was held that contracts subject to these suspensive conditions were not

hit by the legislative enactments concerned. The reasoning that formed
the basis of these decisions was essentially that the agreement
prohibited by both enactments was a sale whereas, in accordance with
the decision of this Court in Corondimas, an agreement of sale subject to
a suspensive condition cannot, pending fulfilment of the condition, be
regarded as a 'sale'. It only becomes a sale when the condition is
fulfilled, in which event there is no contravention of the statutory
provisions involved.
[9] In at least two of the judgments referred to, it was pertinently
decided that, in construing the legislation concerned, it must be assumed
that the Legislature intended the term 'sale' to be understood in
accordance with the meaning attributed to that term by the courts in
earlier cases. Any inference that a different meaning was intended, so it
was held, would require a clear indication by the Legislature to that effect
(See Sentraalwes Personeel Ondernemings (Edms) Bpk v Wallis supra
88A and Sentraalwes Personeel Ondernemings (Edms) Bpk v
Nieuwoudt supra 544H). In this regard specific reference was made to
the well known presumption in the interpretation of statutes that where
words are used which have received previous judicial construction the
Legislature is presumed, in the absence of any indication to the contrary,
to have intended those words to bear the meaning ascribed to them by

the courts (see e g R v Ismail and another 1958 (1) SA 206 (A) 211).
[10] One of the High Court decisions that I have referred to in
connection with the provision of the Transvaal Ordinance, namely the
Soja case, was challenged on appeal (see Soja (Pty) Ltd v Tuckers Land
and Development Corporation (Pty) Ltd 1981 (3) SA 314 (A).) In this
Court Trollip JA, writing for the majority, expressed himself as follows (at
321C-H):

'The Court a quo, relying on Corondimas v Badat 1946 AD 548 and other
decisions referred to in its judgment, held that, because the sale of the erven
embodied in the agreement was suspended and subject to "the due proclamation of
the said township", it was not hit and invalidated by s 57A. …

I should mention here that the principle laid down in several cases and
affirmed in the Corondimas case that an agreement embodying a sale subject to a
suspensive condition is not a contract of sale until the condition is fulfilled has been
trenchantly criticised by writers. … The thesis is that the principle is wrong according
to our common law, for the latter regards such a contract as being one of sale ab
initio although it is subject to the suspensive condition. The author of the article
suggests that the legislature should intervene to correct the error. However, the
correctness of the decision and reasoning of the Corondimas case was not impugned
before us; indeed, it was accepted by counsel for both parties as being correct.
Hence that case is decisive of the present dispute unless s 57A of the Ordinance,
construed in the context of the other relevant provisions of the Ordinance, manifests
an intention by the legislature also to forbid the entering into of suspensive contracts

of sale of erven of the kind in question here prior to the declaration of the township as
an approved one. Ultimately, in the hearing of the appeal before us, the argument for
Soja was confined to this latter, narrow ground.'
In the event, the majority found that s 57A of the Ordinance did not
manifest such an intention on the part of the Legislature, essentially for
the reasons that appear from the following statement by Trollip JA (at
324 in fine – 325A):
'The section was much more likely intended to refer only to the common or ordinary
contracts of sale. If it were intended to hit also suspensive contracts of sale of the
kind in question here, that would surely have been done expressly and explicitly,
especially in view of  the decision in the Corondimas case supra … And in case of
any doubt or uncertainty as to its true meaning on that score (as is evident from the
division of opinion between us) it should in my view be construed in its narrower
sense as comprehending only the common or ordinary contracts of sale.'
[11] In the subsequent case of Tuckers Land and Development
Corporation (Pty) Ltd v Strydom supra this Court was asked to
reconsider the correctness of the conclusion reached in the Soja case.
The facts of the two cases were, for all intents and purposes, the same.
This time, however, the contention was squarely advanced that
Corondimas was wrongly decided in that it was in conflict with the
principles of our common law. From the three judgments delivered in the
Strydom matter it is apparent that all the members of the Court had some

sympathy with the criticism against Corondimas. However, only Joubert
JA (19 et seq) found it incumbent on him to make the pertinent finding
that Corondimas was wrongly decided. According to the majority
judgment (by Van Heerden JA) it was unnecessary to decide that issue,
because the jurisprudential correctness or otherwise of the decision in
Corondimas had no direct impact on the interpretation of s 57A of the
Ordinance. As the basis for the later view, Van Heerden JA relied on the
principle of statutory interpretation to which I have already referred,
namely, that, where the Legislature uses words that were judicially
construed in the past, it is presumed, in the absence of clear indication to
the contrary, to have intended those words to bear the meaning ascribed
to them by the courts. In the many years that have elapsed since
Corondimas, so Van Heerden JA held (at 17F et seq), the courts have
interpreted the term 'sale' to exclude a sale subject to a suspensive
condition. In the light of this, the Legislature must have intended the term
'sale' to convey that meaning, and no other, when it again used this term,
without any qualification, in s 57A of the Transvaal Ordinance.
Consequently, Van Heerden JA held, the technical correctness or
otherwise of Corondimas was not the real issue in determining the
meaning of s 57A. If the Legislature wanted the courts to ascribe a
meaning to the term 'sale' which differed from how this term was

understood in the past, it would have had to give some clear indication to
that effect; where necessary, through legislative amendment.
[12] Significantly, in all the cases referred to the suspensive condition
related to the very requirement prescribed by the legislative enactments
concerned. In all the cases the eventuality of the contract coming into
operation was made subject either to the Minister's consent becoming
unnecessary or the proclamation of the township, as the case may be.
Upon reflection, this is not fortuitous. The reason why the suspensive
condition could not relate to any event other than the one required by the
statutory provision involved was succinctly formulated as follows by
Watermeyer CJ in Corondimas (at 551-552)
'The position which would arise if the suspensive condition does not relate to the
consent of the Minister and no consent is given, is not raised in the present case, but
in that event a contract of sale would come into existence if the condition is fulfilled,
and, if the condition is fulfilled, the contract which comes into existence must
necessarily be an illegal contract because the Minister has not consented to it.

Consequently, it would seem that a sale subject solely to a suspensive
condition of any other sort would necessarily be null and void.'
(See also Feetham AJA at 559-560.)
The same considerations were reformulated somewhat differently by

Trollip JA in Soja (Pty) Ltd v Tuckers Land & Development Corporation
(Pty) Ltd supra 322A when he said:
'(I should explain here that we are only concerned with this limited particular kind of
suspensive condition – the due proclamation or approval of the township.  If the
suspensive condition was of some other kind it would seem that the agreement
would be invalidated by the prohibition in s 57A for that condition may be fulfilled and
the agreement perfected before  due proclamation …).'
[13] The reasoning that emerges from these statements seems to
provide the answer to the theory proposed by the Court a quo as to why
the Legislature found it necessary to introduce the extended definition of
a sale by way of the 1981 amendment. It will be remembered that,
according to the theory advanced by the Court a quo, the amendment
was necessary to close the loophole of a suspensive condition being
used as a mechanism to avoid the requirement of the Minister's consent.
Since, in accordance with Corodimas, an agreement subject to a
suspensive condition is not a sale, so the Court a quo reasoned, the
parties to an agreement of sale of undivided agricultural land could, but
for the amendment, have circumvented the Minister's consent by making
their agreement subject to some other suspensive condition unrelated to
the Minister's consent being obtained. From the dicta of Watermeyer CJ
and Trollip JA quoted above, it is plain, however, that any attempt to

avoid the Minister's consent in this manner would be doomed to failure.
The moment the suspensive condition is fulfilled, it becomes a 'sale' for
which the Minister's consent is required. Consequently, such an
agreement can never become enforceable without the Minister's
consent. If the purpose of the legislative amendment was therefore to
prevent this type of 'circumvention', the amendment would be an
exercise in futility. Furthermore, if I accept, as I do, that the Legislature is
not oblivious to judicial pronouncements in the past, the Legislature must
also be assumed to have been aware of explanations such as those
given in Corondimas and Soja as to why the Minister's consent cannot
be avoided through the imposition of a suspensive condition. On this
assumption the Legislature would therefore have been aware that the
concern attributed to it by the Court a quo would be unfounded.
[14] In these circumstances, the inference is unavoidable that the
Legislature's intention with the introduction of the extended definition of
sale in 1981 could not have been the one ascribed to it by the Court a
quo. Deductive reasoning appears to indicate, as the only remaining
alternative, that the extended definition of a 'sale' was aimed at the very
type of suspensive condition involved in this case, i e one which renders
the agreement of sale subject to the Minister's consent being obtained.

Since this is the only possible inference, the suggestion by the Court a
quo that such an inference would be absurd, is clearly untenable.
[15] In any event, I do not agree with the Court a quo's conclusion of
absurdity. The conclusion is based on the premise that a suspensive
condition of the present kind ensures that the Legislature 'gets exactly
what it wants'. This presupposes that what the Legislature wants, is only
to prevent an owner of agricultural land from parting with an undivided
portion of that land without the Minister's consent. I do not think the
supposition is valid. The purpose of the Act is not only to prevent
alienation of undivided portions of land. The target zone of the Act is
much wider. This is clear, for example, from s 3(e)(i) which also prohibits
advertisements for sale. Since advertisements obviously precede the
actual sale or alienation of an undivided portion, it is by no means absurd
to infer that the Legislature intended to prohibit any sale of an undivided
portion of farmland, whether conditional or not, unless and until the
subdivision has actually been approved by the Minister. Courts are not
entitled, under the guise of absurdity, to avoid the Legislature's clear
intention because they regard particular consequences to be harsh or
even unwise. Moreover, once the intention of the Legislature is clearly
established, it can be dangerous to speculate as to why the Legislature

would have intended a particular result (see e g Shenker v The Master
and Another 1936 AD 136 at 143; Hatch v Koopoomal 1936 AD 190 at
212). In the circumstances it will serve no real purpose to enter into the
realm of speculation as to why the Legislature would have intended to
prohibit a sale which is subject to a suspensive condition of the present
kind. Nevertheless, I find the inference quite plausible that the
Legislature did not want undivided portions of agricultural land to be sold
and occupied by the purchaser for an indefinite period of time pending
the consent of the Minister, which may then not even be sought. Another
inference which comes to mind is that the Legislature wanted to protect
unwary or unsuspecting purchasers from binding themselves into
onerous agreements, subject to an event of uncertainty that may remain
unresolved for an extended period of time.
[16] For these reasons I believe that an agreement such as the one
under consideration was of the very kind that the Legislature wished to
include in the prohibition in s 3(e)(i) of the Act when it specifically
extended the definition of a 'sale' in 1981. Unlike the Court a quo, I am
therefore of the view that the agreement under consideration did indeed
constitute a contravention of s 3(e)(i) of the Act.
[17] The alternative contention on behalf of Van der Lith was that, even

if the agreement under consideration is held to constitute a contravention
of s 3(e)(i), it does not follow that the agreement is null and void. In
support of this contention it was pointed out that, unlike, for example, s
57A of the Transvaal Ordinance, the Act contains no express declaration
to the effect that an agreement entered into in conflict with s 3(e)(i) is null
and void. It is true, so the argument went, that a contravention of s 3(e)(i)
is rendered a criminal offence by s 11(d) of the Act. But the sanction for
this offence, so the argument concluded, is not the invalidity of the
agreement itself, but the penalties provided for in s 11, i e  a fine not
exceeding R1 000 or imprisonment for a maximum period of two years.
[18] It is a settled principle of our law that a contract which contravenes
a statutory provision is not ipso iure void, unless, of course, the statute
contains an express statement to that effect. In every case the question
whether the contract is void or not depends on whether such an intention
is to be imputed to the Legislature. As was explained by Solomon JA in
Standard Bank v Estate Van Rhyn 1925 AD 266 at 274:
'The contention on behalf of the respondent is that when the Legislature penalises an
act it impliedly prohibits it, and that the effect of the prohibition is to render the act null
and void, even if no declaration of nullity is attached to the law. That, as a general
proposition, may be accepted, but it is not a hard and fast rule universally applicable.
After all, what we have to get at is the intention of the Legislature, and if we are

satisfied in any case that the Legislature did not intend to render the Act invalid, we
should not be justified in holding that it was.'
(See also e g Sutter v Scheepers 1932 AD 165 at 173-174; Swart v
Smuts 1971 (1) SA 819 (A) 829C-830C; Oosthuizen and Another v
Standard Credit Corporation Ltd 1993 (3) SA 891 (A) 902H-903F and the
authorities there cited.)
[19] As far as s 3(e) of the Act is concerned, it has been held in a
number of decisions of the High Court that, on a proper interpretation of
the provisions of the section, in accordance with the recognised tenets of
construction, the Legislature's intention was that agreements prohibited
by the section should be visited with invalidity (see e g Tuckers Land and
Development Corporation (Pty) Ltd v Truter 1984 (2) SA 150 (SWA);
Tuckers Land and Development Corporation (Pty) Ltd v Wasserman
1984 (2) SA 157 (T); Smith v Tuckers Land and Development
Corporation (Pty) Ltd 1984 (2) SA 166 (T) and Hamilton-Browning v
Dennis Barker Trust 2001 (4) SA 1131 (N) 1135I-J.
[20] Counsel for Van der Lith accepted that these High Court cases
were correctly decided on their own facts. His argument was, however,
that the agreements concerned in those cases are distinguishable in
that, unlike the present agreement, they were not specifically rendered

subject to the Minister's consent being obtained. It is this suspensive
condition, so his argument went, which makes the whole difference.
Because the suspensive condition seeks to ensure compliance with the
very requirement imposed by s 3(e)(i), he argued, the agreement can
never be said to be in conflict with the section. This being so, he
submitted, any inference that the Legislature intended to visit an
agreement such as this with invalidity, is untenable. I do not agree with
this submission. In my view it is fundamentally flawed. Once it is
accepted that an agreement such as this is prohibited by s 3(e)(i),
despite the fact that it is subject to a suspensive condition, there is
simply no room for an argument that the agreement is not in conflict with
the Legislature's intention. On the contrary, since it is accepted that an
agreement of this kind is one of those specifically prohibited by s 3(e)(i),
its recognition as valid and enforceable would  give legal sanction to the
very situation which that section was designed to avoid (cf Pottie v Kotze
1954 (3) SA 719 (A) 726H and Oosthuizen and Another v Standard
Credit Corporation Ltd supra 904G-H).
[21] For these reasons, Geue's contention that the agreement between
the parties was rendered null and void by the provisions of s 3(e)(i) of the
Act, should therefore, in my view, be endorsed.

[22] The following order is made:

a.
The appeal is upheld with costs.

b.
The order of the Court a quo is set aside and in its stead the

following order is made:

'1.
The agreement of sale entered into between the first

and the second applicants and the first respondent,

dated 19 June 2001, in terms of which an undivided

portion of the farm Canterbury 254 was sold to the

applicants, is declared null and void.

2.
The second respondent is ordered to pay the amount of

R200 000  to the applicants' attorneys.

3.
The first respondent is ordered to pay the costs of the

application.

4.
The first respondent's counter-application is dismissed

with costs.'

………………
F D J BRAND
JUDGE OF APPEAL
Concur:
MPATI DP
STREICHER JA
CONRADIE JA
HEHER JA