Gibbs and Another v Vantyi and Others (2555/07) [2009] ZAECPEHC 23; 2010 (2) SA 606 (ECP) (25 May 2009)

Gibbs and Another v Vantyi and Others (2555/07) [2009] ZAECPEHC 23; 2010 (2) SA 606 (ECP) (25 May 2009)

The court found that the process contemplated by Clause 28 of the Conditions of Sale, which allowed for private bargaining and improved offers after the public auction, was distinct from the public auction itself. The oral agreement reached on 19 September 2005 was not concluded at a public auction as required by section 3(1) of the Alienation of Land Act. Therefore, the agreement was subject to section 2(1), which requires that agreements for the sale of land be in writing. As the agreement was not reduced to writing, it was invalid. Consequently, the plaintiffs were entitled to repayment of the monies paid to the third defendant, and the third defendant's counter-claim for additional...

Citation
[2009] ZAECPEHC 23
Parties
Plaintiff: Matthew Gibbs; Plaintiff: Zilindile Makapela; Defendant: Nolivia Richmond Vantyi; Defendant: Thembisa Tryphina Vantyi; Defendant: ABM Real Estate and Auctioneers (Pty) Ltd
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
25 May 2009
Case Number
2555/07
Procedural Posture
Civil Trial / Judgment
Outcome
Plaintiffs' claim for repayment of monies succeeds; third defendant's counter-claim is dismissed.
Judges
J C H Jansen
Legal Topics
Alienation of Land Act, Formalities of Sale of Land, Public Auction, Oral Agreement, Right of First Refusal
Land and Property Civil Procedure Alienation of Land Act Formalities of Sale of Land Public Auction Oral Agreement Right of First Refusal

Case Brief

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Parties

Matthew Gibbs

Plaintiff

Zilindile Makapela

Plaintiff

Nolivia Richmond Vantyi

Defendant

Thembisa Tryphina Vantyi

Defendant

ABM Real Estate and Auctioneers (Pty) Ltd

Defendant

Procedural Posture

Civil Trial / Judgment

Legal Issues

  1. 1 Whether a valid and binding agreement of sale was concluded between the plaintiffs and the first and second defendants for the immovable property.
  2. 2 Whether the oral agreement reached on 19 September 2005 is exempt from the requirement of written form under section 2(1) of the Alienation of Land Act by virtue of section 3(1).
  3. 3 Whether the plaintiffs are entitled to repayment of the sum paid to the third defendant.

Ratio Decidendi

The court found that the process contemplated by Clause 28 of the Conditions of Sale, which allowed for private bargaining and improved offers after the public auction, was distinct from the public auction itself. The oral agreement reached on 19 September 2005 was not concluded at a public auction as required by section 3(1) of the Alienation of Land Act. Therefore, the agreement was subject to section 2(1), which requires that agreements for the sale of land be in writing. As the agreement was not reduced to writing, it was invalid. Consequently, the plaintiffs were entitled to repayment of the monies paid to the third defendant, and the third defendant's counter-claim for additional...

Court Disposition

Plaintiffs' claim for repayment of monies succeeds; third defendant's counter-claim is dismissed.

Orders

  • The third defendant, alternatively the first and second defendants jointly and severally, are ordered to pay the plaintiffs the sum of R225,920.00 with interest at 15.5% per annum from 18 December 2006 to date of payment and costs of suit.
  • The third defendant's counter-claim is dismissed with costs.