Cowley and Another v Lai Thom and Another (1117/2010) [2012] ZAECPEHC 70 (25 September 2012)

Cowley and Another v Lai Thom and Another (1117/2010) [2012] ZAECPEHC 70 (25 September 2012)

The court found that the plaintiffs' offer to purchase expired before the first defendant accepted it, and any subsequent acceptance constituted a counter-offer. Although the parties attempted to proceed with the transaction and made further arrangements, the acceptance of the counter-offer was not reduced to writing and signed by both parties as required by section 2 of the Alienation of Land Act. The statutory formalities for the sale of immovable property were not met, and thus no binding agreement of sale was concluded. The plaintiffs' conduct did not amount to a waiver of the statutory requirements, and the defendants could not rely on estoppel or waiver to validate the contract....

Citation
[2012] ZAECPEHC 70
Parties
Plaintiff: Nigel Cowley; Plaintiff: Margaret Cowley; Defendant: Edward Lai Thom; Defendant: Pam Golding Properties
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
25 September 2012
Case Number
1117/2010
Procedural Posture
Civil Trial / Judgment
Outcome
Plaintiffs' claim for a declaratory order and refund of deposit succeeded.
Judges
N Dambuza
Legal Topics
Alienation of Land Act, Contract Formation, Expiry of Offer, Counter Offer, Formalities of Contract
Land and Property Civil Procedure Alienation of Land Act Contract Formation Expiry of Offer Counter Offer Formalities of Contract

Case Brief

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Parties

Nigel Cowley

Plaintiff

Margaret Cowley

Plaintiff

Edward Lai Thom

Defendant

Pam Golding Properties

Defendant

Procedural Posture

Civil Trial / Judgment

Legal Issues

  1. 1 Whether a binding agreement of sale existed between the plaintiffs and the first defendant.
  2. 2 Whether acceptance of the plaintiffs' offer after its expiry constituted a valid contract.
  3. 3 Whether the subsequent conduct of the parties resulted in a valid agreement compliant with section 2 of the Alienation of Land Act.

Ratio Decidendi

The court found that the plaintiffs' offer to purchase expired before the first defendant accepted it, and any subsequent acceptance constituted a counter-offer. Although the parties attempted to proceed with the transaction and made further arrangements, the acceptance of the counter-offer was not reduced to writing and signed by both parties as required by section 2 of the Alienation of Land Act. The statutory formalities for the sale of immovable property were not met, and thus no binding agreement of sale was concluded. The plaintiffs' conduct did not amount to a waiver of the statutory requirements, and the defendants could not rely on estoppel or waiver to validate the contract....

Court Disposition

Plaintiffs' claim for a declaratory order and refund of deposit succeeded.

Orders

  • The defendants are ordered jointly and severally, the one paying the other to be absolved, to pay to the plaintiffs an amount of R115,000.00.
  • Interest on the said amount at the legal rate of 15.5% per annum a tempora morae.