Mathewson and Another v Van Niekerk and Others (260/11) [2012] ZASCA 12 (16 March 2012)

Mathewson and Another v Van Niekerk and Others (260/11) [2012] ZASCA 12 (16 March 2012)

The Supreme Court of Appeal held that the respondents' version, namely that the deed of sale contained a tacit term requiring the purchasers to indicate where services should be installed, could not be rejected as far-fetched or clearly untenable on the papers. The size of the property made it impractical for the developer to determine service installation points without input from the purchasers. The existence of the tacit term was supported by the probabilities and practical considerations. The court found that the applicants failed to provide the necessary indication, and thus the respondents' defence prevailed. The appeal succeeded, and the application was dismissed with costs.

Citation
[2012] ZASCA 12
Parties
Appellant: Horatio Stephen Mathewson; Appellant: Annemi Margeretha Mathewson; Respondent: Martha Francina van Niekerk; Respondent: Christoffel Petrus Prinsloo van Niekerk; Respondent: Standard Bank Beperk; Respondent: The Registrar of Deeds; Respondent: Ditsobotla Local Municipality; Respondent: Willem Christoffel Jansen van Rensburg
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
16 March 2012
Case Number
260/11
Procedural Posture
Civil Appeal / Appeal From North Gauteng High Court (pretoria)
Outcome
Appeal upheld; application dismissed with costs.
Judges
NAVSA, CLOETE, VAN HEERDEN, LEACH, BORUCHOWITZ
Legal Topics
Sale of Land, Tacit Terms, Motion Proceedings, Dispute of Fact, Contract Cancellation
Land and Property Civil Procedure Sale of Land Tacit Terms Motion Proceedings Dispute of Fact Contract Cancellation

Case Brief

Summary, issues, holding and outcome

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Parties

Horatio Stephen Mathewson

Appellant

Annemi Margeretha Mathewson

Appellant

Martha Francina van Niekerk

Respondent

Christoffel Petrus Prinsloo van Niekerk

Respondent

Standard Bank Beperk

Respondent

The Registrar of Deeds

Respondent

Ditsobotla Local Municipality

Respondent

Willem Christoffel Jansen van Rensburg

Respondent

Procedural Posture

Civil Appeal / Appeal From North Gauteng High Court (pretoria)

Legal Issues

  1. 1 Whether the deed of sale contained a tacit term requiring purchasers to indicate where services should be installed on the property.
  2. 2 Whether the respondents' version regarding the tacit term could be rejected as far-fetched or clearly untenable on the papers.
  3. 3 Whether the sellers breached the contract by failing to provide services as required by clause 17.

Ratio Decidendi

The Supreme Court of Appeal held that the respondents' version, namely that the deed of sale contained a tacit term requiring the purchasers to indicate where services should be installed, could not be rejected as far-fetched or clearly untenable on the papers. The size of the property made it impractical for the developer to determine service installation points without input from the purchasers. The existence of the tacit term was supported by the probabilities and practical considerations. The court found that the applicants failed to provide the necessary indication, and thus the respondents' defence prevailed. The appeal succeeded, and the application was dismissed with costs.

Court Disposition

Appeal upheld; application dismissed with costs.

Orders

  • The appeal succeeds, with costs.
  • The order of the court a quo is set aside and substituted with: 'The application is dismissed, with costs.'