Bester N.O v Van Wyk (2845/2012) [2016] ZAECGHC 37 (26 May 2016)

Bester N.O v Van Wyk (2845/2012) [2016] ZAECGHC 37 (26 May 2016)

The court held that the defendant's plea, based on an oral contract for the sale of land, does not constitute a valid defence because it fails to comply with section 2(1) of the Alienation of Land Act, which requires such contracts to be in writing. Section 28(2) provides an exception if the alienee has performed in full under the contract and transfer has occurred. Although transfer of the property to the defendant was effected, the defendant admitted that she did not pay the full purchase price and failed to plead circumstances showing waiver of payment by the deceased. The written declaration annexed by the defendant did not constitute a contract and was inconsistent with her plea. As...

Citation
[2016] ZAECGHC 37
Parties
Plaintiff: Andries Adriaan Bester N.O; Defendant: Gesina Dorothea Van Wyk
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
26 May 2016
Case Number
2845/2012
Procedural Posture
Civil Procedure / Exception to Plea
Outcome
Exception upheld; defendant granted leave to amend plea.
Judges
G H Bloem
Legal Topics
Alienation of Land Act, Oral Contracts, Exception to Plea, Invalid Agreement of Sale
Land and Property Civil Procedure Alienation of Land Act Oral Contracts Exception to Plea Invalid Agreement of Sale

Case Brief

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Parties

Andries Adriaan Bester N.O

Plaintiff

Gesina Dorothea Van Wyk

Defendant

Procedural Posture

Civil Procedure / Exception to Plea

Legal Issues

  1. 1 Whether the defendant's plea based on an oral contract constitutes a valid defence to the plaintiff's claim for payment under a written deed of sale.
  2. 2 Whether the alienation of land pursuant to the oral contract is valid despite non-compliance with section 2(1) of the Alienation of Land Act, in light of section 28(2) of the Act.
  3. 3 Whether the defendant performed in full in terms of the oral contract, thereby validating the alienation ab initio under section 28(2).

Ratio Decidendi

The court held that the defendant's plea, based on an oral contract for the sale of land, does not constitute a valid defence because it fails to comply with section 2(1) of the Alienation of Land Act, which requires such contracts to be in writing. Section 28(2) provides an exception if the alienee has performed in full under the contract and transfer has occurred. Although transfer of the property to the defendant was effected, the defendant admitted that she did not pay the full purchase price and failed to plead circumstances showing waiver of payment by the deceased. The written declaration annexed by the defendant did not constitute a contract and was inconsistent with her plea. As...

Court Disposition

Exception upheld; defendant granted leave to amend plea.

Orders

  • The exception is upheld with costs.
  • The defendant is granted leave to deliver an amended plea, if so advised.