Maryna holds the BA, LLB, LLM degrees and is a Director at the Cape Town branch of STBB. She is an admitted Attorney, Notary Public, Conveyancer and Insolvency Practitioner with many years of experience in the fields of property law, conveyancing and the laws relating to corporate compliance (especially in respect of the FICA and POPIA laws). Up until 2018 she was also head of the firm’s national marketing portfolio. She is a seasoned public speaker and presenter, both in person and online. She prepares text for the majority of STBB’s internal and external publications and is editor and co-writer for two pivotal publications in the South African real estate industry – the ABC of Conveyancing (JUTA) and Delport’s South African Property Law and Practice (JUTA).

Property Law Update | Issue 08 – 2023

PLAN APPROVAL A SALE CONDITION, BUT AGREEMENT SILENT ON WHO MUST PROCURE THIS

Naidoo and Another v Sanders and Another (D1696/2020) [2023] ZAKZDHC 21 (4 May 2023)

Part of the dispute in this judgment related to a suspensive condition in a sale agreement requiring the procurement of approved plans for the buildings on the land sold. The wording was silent on whether the seller or buyer was responsible to attend hereto. Obtaining plan approval proved to be illusive, leading to the seller arguing that the agreement had lapsed due to non-fulfillment of the condition. The court however referred to the laws relating to plan approval and held that as this power lies only with the owner or his appointed agent, the obligation rested on the seller’s shoulders by default.

The Judgment
Summary of the Judgment

AGREEMENT VOID BECAUSE MATERIAL TERMS OMITTED

Cooper N O and Another v Curro Heights Properties (Pty) Ltd (1300/2022) [2023] ZASCA 66 (16 May 2023)

The parties in the sale agreement in this matter had, subsequent to signing, made plans to procure subdivision of one of the properties included in the sale. This was because the purchaser only wanted to buy part of one of the erven that was included in the sale. Subdivision was not achieved and the relationship between seller and purchaser floundered. (Also after the signing of the agreement, was the discovery that an erf number of one of the erven sold reflected the wrong erf number, although both parties were clear on the erven being sold and purchased.) The matter landed with the Supreme Court of Appeal which confirmed that, amongst other things, the subdivision constituted a material element of the agreement and since it was not recorded in writing and made part of the agreement, there was non-compliance with the Alienation of Land Act and the agreement was void.
It is significant to note that the seller was a company in liquidation and the agreement entered into in 2017 already, meaning that the delays in relation to the subdivision and the subsequent litigation, delayed the process for almost 5 years. Remember therefore always to ensure that every material aspect of your agreement is recorded in writing.

The Judgment
Summary of the Judgment

For the best legal advice and personalised service, let's talk
Subscribe to our monthly newsletters, subscribe