Schoemaker v Lochner and Another (158/84) [1984] ZASCA 124 (1 November 1984)

Schoemaker v Lochner and Another (158/84) [1984] ZASCA 124 (1 November 1984)

The court held that the omission of the balance owing under the mortgage bond did not render the contract void. The blank related to an existing, ascertainable fact, and the parties intended paragraph 6(a) to form part of their agreement. The contract was otherwise complete and contained the essentialia of a contract of sale. The probable reason for leaving the blank was that the balance was not available at the time of contracting but could be easily ascertained. Furthermore, the court found no evidence that the proceeds of the bond were intended to provide financial assistance for the purchase of shares, as prohibited by section 38(1) of the Companies Act. The appellant failed to...

Citation
[1984] ZASCA 124
Parties
Appellant: Gerhardus Johannes Schoemaker; Respondent: Pieter Ludolf Lochner; Respondent: Eleanor Margaret Lochner
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 November 1984
Case Number
158/84
Procedural Posture
Civil Appeal / Appeal Against Judgment of Witwatersrand Local Division
Outcome
Appeal dismissed with costs, including costs of condonation application.
Judges
Kotze, Miller, Van Heerden, Galgut, Smalberger
Legal Topics
Contract Construction, Essentialia of Contract, Financial Assistance for Share Purchase, Companies Act Section 38, Specific Performance
Commercial and Corporate Civil Procedure Contract Construction Essentialia of Contract Financial Assistance for Share Purchase Companies Act Section 38 Specific Performance

Case Brief

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Parties

Gerhardus Johannes Schoemaker

Appellant

Pieter Ludolf Lochner

Respondent

Eleanor Margaret Lochner

Respondent

Procedural Posture

Civil Appeal / Appeal Against Judgment of Witwatersrand Local Division

Legal Issues

  1. 1 Whether the omission of the balance owing under the mortgage bond in the contract rendered the agreement void.
  2. 2 Whether the contract was void due to alleged contravention of section 38(1) of the Companies Act 61 of 1973 regarding financial assistance for share purchase.

Ratio Decidendi

The court held that the omission of the balance owing under the mortgage bond did not render the contract void. The blank related to an existing, ascertainable fact, and the parties intended paragraph 6(a) to form part of their agreement. The contract was otherwise complete and contained the essentialia of a contract of sale. The probable reason for leaving the blank was that the balance was not available at the time of contracting but could be easily ascertained. Furthermore, the court found no evidence that the proceeds of the bond were intended to provide financial assistance for the purchase of shares, as prohibited by section 38(1) of the Companies Act. The appellant failed to...

Court Disposition

Appeal dismissed with costs, including costs of condonation application.

Orders

  • The application for condonation of late lodging of the record is granted.
  • The appeal is dismissed with costs, including costs occasioned by the application for condonation.