Cooper N O and Another v Curro Heights Properties (Pty) Ltd (SCA)
This case dealt with the sale of four vacant stands in Mossel Bay. One of the stands concerned was a private access road.
It later came to light that the road extended into a neighbouring development, which meant that the purchaser would also become involved in the matters of that development, should the contract be given effect to, as written. The purchasers suggested that the road be subdivided to exclude the neighbouring development from the transaction and the sellers agreed.
This arrangement regarding the subdivision was never formally regulated per addendum or otherwise included in the written agreement.
The subdivision never came about and the transaction was cancelled by the sellers atter two years. The Supreme Court of Appeal held that the agreement was void for lack of compliance with the provisions of the Alienation of Land Act (ALA).
The court emphasised that ALA requires the whole agreement of sale, including all material terms, must be reduced to writing and signed by the parties. This not only includes the essential elements of a sale, but any term which materially affects the rights and obligations of the parties.
The intention of the parties does not equate a contractual obligation and in order to be enforceable, it must be contained in the agreement.