Nkengana and Another v Van der Walt Schnetler and Another (CA393/07) [2008] ZAECHC 160 (19 September 2008)

Nkengana and Another v Van der Walt Schnetler and Another (CA393/07) [2008] ZAECHC 160 (19 September 2008)

The court found that the payments made by the appellants were not made in terms of the written Agreement of Sale but rather under subsequent oral agreements for occupational rent and the purchase of movable property. The oral agreement regarding occupational rent did not constitute a variation of the written agreement and thus did not contravene the Alienation of Land Act. The written agreement fixed the time for performance, so no demand was necessary to place the appellants in mora. The appellants failed to comply with the payment terms of the written agreement and were not entitled to transfer. The court also held that no genuine dispute of fact existed that would warrant referral to...

Citation
[2008] ZAECHC 160
Parties
Appellant: Joseph Ncedisi Nkengana; Appellant: Nombeko Felicia Nkengana; Respondent: Stephanus van der Walt Schnetler; Respondent: Standard Bank of South Africa Limited
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
19 September 2008
Case Number
CA393/07
Procedural Posture
Civil Appeal / Full Bench Appeal From High Court (eastern Cape Division)
Outcome
Appeal dismissed with costs.
Judges
Jansen, Sandi, Revelas
Legal Topics
Agreement of Sale, Alienation of Land Act, Oral Variation, Mora Ex Re, Occupational Rent
Land and Property Civil Procedure Agreement of Sale Alienation of Land Act Oral Variation Mora Ex Re Occupational Rent

Case Brief

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Parties

Joseph Ncedisi Nkengana

Appellant

Nombeko Felicia Nkengana

Appellant

Stephanus van der Walt Schnetler

Respondent

Standard Bank of South Africa Limited

Respondent

Procedural Posture

Civil Appeal / Full Bench Appeal From High Court (eastern Cape Division)

Legal Issues

  1. 1 Whether the payments made by the appellants entitled them to transfer of the property under the written Agreement of Sale.
  2. 2 Whether the oral agreement regarding occupational rent constituted a variation of the written Agreement of Sale in contravention of the Alienation of Land Act.
  3. 3 Whether the appellants were required to be placed in mora before the respondent could refuse transfer.

Ratio Decidendi

The court found that the payments made by the appellants were not made in terms of the written Agreement of Sale but rather under subsequent oral agreements for occupational rent and the purchase of movable property. The oral agreement regarding occupational rent did not constitute a variation of the written agreement and thus did not contravene the Alienation of Land Act. The written agreement fixed the time for performance, so no demand was necessary to place the appellants in mora. The appellants failed to comply with the payment terms of the written agreement and were not entitled to transfer. The court also held that no genuine dispute of fact existed that would warrant referral to...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.