Fehr v Gordon and Another (102/87) [1987] ZASCA 100; [1988] 3 All SA 555 (AD) (24 September 1987)

Fehr v Gordon and Another (102/87) [1987] ZASCA 100; [1988] 3 All SA 555 (AD) (24 September 1987)

The court held that the appellant's election not to take transfer under section 14(2) of the Sale of Land on Instalments Act was valid and not vitiated by mistake. The statutory scheme requires only that the purchaser make an election within the prescribed period, regardless of the motives or advice received. The appellant acted on the advice of his attorney, who was aware of the relevant facts and resolutions, and this does not constitute a mistake that would invalidate the election. The court further found that the Alienation of Land Act 68 of 1981 does not apply retroactively in the absence of invalidity in the original election. The application was correctly dismissed by the court a...

Citation
[1987] ZASCA 100
Parties
Appellant: Werner Jakob Fehr; Respondent: Rael Gordon and David Rennie NNO.; Respondent: Standard Merchant Bank Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
24 September 1987
Case Number
102/87
Procedural Posture
Civil Appeal / Appeal From Dismissal of Application for Declaratory and Interdictory Relief
Outcome
Appeal dismissed with costs, including costs of two counsel. Costs of the application for leave to appeal are regarded as costs in the appeal.
Judges
Corbett, Van Heerden, Grosskopf, Nicholas, Steyn
Legal Topics
Sale of Land on Instalments Act, Alienation of Land Act, Locus Standi, Res Judicata, Mistake in Election
Land and Property Civil Procedure Sale of Land on Instalments Act Alienation of Land Act Locus Standi Res Judicata Mistake in Election

Case Brief

Summary, issues, holding and outcome

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Parties

Werner Jakob Fehr

Appellant

Rael Gordon and David Rennie NNO.

Respondent

Standard Merchant Bank Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Dismissal of Application for Declaratory and Interdictory Relief

Legal Issues

  1. 1 Whether the appellant's election not to take transfer under section 14(2) of the Sale of Land on Instalments Act was invalid due to mistake.
  2. 2 Whether the appellant is entitled to be relieved of the consequences of his election under section 14(2).
  3. 3 Whether the Alienation of Land Act 68 of 1981 applies retroactively to confer a fresh right of election.

Ratio Decidendi

The court held that the appellant's election not to take transfer under section 14(2) of the Sale of Land on Instalments Act was valid and not vitiated by mistake. The statutory scheme requires only that the purchaser make an election within the prescribed period, regardless of the motives or advice received. The appellant acted on the advice of his attorney, who was aware of the relevant facts and resolutions, and this does not constitute a mistake that would invalidate the election. The court further found that the Alienation of Land Act 68 of 1981 does not apply retroactively in the absence of invalidity in the original election. The application was correctly dismissed by the court a...

Court Disposition

Appeal dismissed with costs, including costs of two counsel. Costs of the application for leave to appeal are regarded as costs in the appeal.

Orders

  • The appeal is dismissed with costs, such costs to include the costs of two counsel.
  • The costs of the application for leave to appeal are to be regarded as costs in the appeal.