Kretzman v Kretzmann and Another (2644/2018) [2019] ZAECPEHC 54; 2020 (1) SA 162 (ECP) (27 August 2019)

Kretzman v Kretzmann and Another (2644/2018) [2019] ZAECPEHC 54; 2020 (1) SA 162 (ECP) (27 August 2019)

The court held that while an option agreement (the pactum de contrahendo) relating to the sale of land need not be in writing, the substantive offer to purchase must comply with the formalities prescribed by section 2(1) of the Alienation of Land Act. In this case, both the option agreement and the terms of sale were orally concluded. Since the offer was not in writing, it could not result in a binding contract upon acceptance, and the oral option agreement could not be validly exercised. Therefore, the plaintiffs' claim based on the oral agreement fails to disclose a cause of action and must be set aside.

Citation
[2019] ZAECPEHC 54
Parties
Defendant: Errol Kenneth Kretzmann; Plaintiff: Leslie Andre Kretzmann; Plaintiff: Petra Kretzmann
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
27 August 2019
Case Number
2644/2018
Procedural Posture
Exception Application / Exception to Particulars of Claim
Outcome
Exception upheld; paragraphs 6 and 11 of the plaintiffs’ Particulars of Claim set aside; plaintiffs granted leave to amend within thirty days; costs awarded against plaintiffs.
Judges
J W Eksteen
Legal Topics
Alienation of Land Act, Option to Purchase, Formalities of Contracts, Exception Procedure
Land and Property Civil Procedure Alienation of Land Act Option to Purchase Formalities of Contracts Exception Procedure

Case Brief

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Parties

Errol Kenneth Kretzmann

Defendant

Leslie Andre Kretzmann

Plaintiff

Petra Kretzmann

Plaintiff

Procedural Posture

Exception Application / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether an oral option agreement for the sale of immovable property is enforceable under section 2(1) of the Alienation of Land Act.
  2. 2 Whether both the option agreement and the substantive offer must comply with statutory formalities to be valid.
  3. 3 Whether the plaintiffs' pleaded oral agreement discloses a cause of action.

Ratio Decidendi

The court held that while an option agreement (the pactum de contrahendo) relating to the sale of land need not be in writing, the substantive offer to purchase must comply with the formalities prescribed by section 2(1) of the Alienation of Land Act. In this case, both the option agreement and the terms of sale were orally concluded. Since the offer was not in writing, it could not result in a binding contract upon acceptance, and the oral option agreement could not be validly exercised. Therefore, the plaintiffs' claim based on the oral agreement fails to disclose a cause of action and must be set aside.

Court Disposition

Exception upheld; paragraphs 6 and 11 of the plaintiffs’ Particulars of Claim set aside; plaintiffs granted leave to amend within thirty days; costs awarded against plaintiffs.

Orders

  • The exception is upheld and paragraphs 6 and 11 of the plaintiffs’ Particulars of Claim are set aside.
  • The plaintiffs are afforded thirty (30) days to amend their Particulars of Claim, if so advised.