Du Plessis NO and Another v Goldco Motor & Cycle Supplies (Pty) Ltd (372/08) [2009] ZASCA 62; 2009 (6) SA 617 (SCA); [2009] 4 All SA 203 (SCA) (29 May 2009)

Du Plessis NO and Another v Goldco Motor & Cycle Supplies (Pty) Ltd (372/08) [2009] ZASCA 62; 2009 (6) SA 617 (SCA); [2009] 4 All SA 203 (SCA) (29 May 2009)

The majority held that the option clause in the lease agreement contained all essential terms for a valid contract of sale and was enforceable. The prescribed mode of acceptance—signing a written contract drafted by the trust's attorney—was frustrated by the trust's agent, Rossouw, who failed to prepare the contract despite the respondent's timeous request. Applying the doctrine of fictional fulfilment, the court deemed the option exercised, as the trust could not rely on its own agent's deliberate failure to escape its obligation. The property was adequately described, and objective evidence sufficed to identify the merx. The court declined to compel the parties to enter into a further...

Citation
[2009] ZASCA 62
Parties
Appellant: Jan Abraham Du Plessis N O; Appellant: Nicolaas Johannes Smith N O; Respondent: Goldco Motor & Cycle Supplies (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 May 2009
Case Number
372/08
Procedural Posture
Civil Appeal / Appeal From Free State High Court
Outcome
Appeal dismissed with costs; order of the high court amended to deem the option exercised and compel transfer of the property.
Judges
NAVSA, LEWIS, SNYDERS, KROON, GRIESEL
Legal Topics
Option to Purchase, Alienation of Land Act, Specific Performance, Fictional Fulfilment, Contractual Conditions, Description of Merx
Land and Property Commercial and Corporate Option to Purchase Alienation of Land Act Specific Performance Fictional Fulfilment Contractual Conditions Description of Merx

Case Brief

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Parties

Jan Abraham Du Plessis N O

Appellant

Nicolaas Johannes Smith N O

Appellant

Goldco Motor & Cycle Supplies (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Free State High Court

Legal Issues

  1. 1 Whether the option clause in the lease agreement constituted a valid and enforceable option to purchase immovable property.
  2. 2 Whether the description of the property in the option clause satisfied statutory requirements for certainty under the Alienation of Land Act.
  3. 3 Whether the doctrine of fictional fulfilment applies where the seller's agent deliberately frustrates the exercise of the option.

Ratio Decidendi

The majority held that the option clause in the lease agreement contained all essential terms for a valid contract of sale and was enforceable. The prescribed mode of acceptance—signing a written contract drafted by the trust's attorney—was frustrated by the trust's agent, Rossouw, who failed to prepare the contract despite the respondent's timeous request. Applying the doctrine of fictional fulfilment, the court deemed the option exercised, as the trust could not rely on its own agent's deliberate failure to escape its obligation. The property was adequately described, and objective evidence sufficed to identify the merx. The court declined to compel the parties to enter into a further...

Court Disposition

Appeal dismissed with costs; order of the high court amended to deem the option exercised and compel transfer of the property.

Orders

  • The option for the purchase by the applicant of Shop 1, Prosperitas Building, 133D Jan Hofmeyr Road, Welkom, from the first and second respondents, in their capacities as trustees of the Prosperitas Trust, for the price of R4 840 000 plus 14 per cent VAT, in terms of clause 5 of the agreement of lease between the...
  • The first and second respondents are ordered to take all necessary steps to transfer the property described above to the applicant against payment of R4 840 000 plus VAT.