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Maharaj

22 March 2007

Maharaj & another v Govindsamy & another [2007] JOL 19052 (D)
Case 17125 / 05
12 / 01 / 2007

Keywords:
Agreement - Agreement of sale - Suspensive condition - Non-fulfilment of - Waiver of compliance - Written notification of breach - Non-compliance with - Contract valid - Order to effect transfer granted
Alienation of Land Act 68 of 1981 - Alienation of Land Act 68 of 1981, section 19 - Alienation of Land Act 68 of 1981, section 19(1)

Summary:
The applicants purchased immovable property from the two respondents. Their agreement of sale was subject to the applicant obtaining a loan within 21 days of the date of signature. Furthermore, this suspensive condition was for the benefit of the purchaser who could unilaterally waive compliance with it. After the applicant failed to fulfill this suspensive condition, the respondents wrote a letter to the applicant to inform him that the contract had lapsed. In response the applicants lodged this application to claim transfer. In his founding affidavit the first applicant asserted that the respondents were aware that they had, inter alia, already obtained a "pre-approved bond" at the time when they signed the agreement. The obligation had been fulfilled; alternatively, they had elected to waive compliance with the condition. In addition, the respondents had not notified them in writing before purporting to cancel the agreement as was required by a clause in the agreement.

Held that in terms of section 19(1) of the Alienation of Land Act 68 of 1981 a seller of immovable property who decides to take action as a result of a breach is required to give the buyer written notice to rectify the breach before the seller can terminate the contract. Cancellation constitutes a drastic step that cannot be taken willy-nilly without following the necessary procedure. The agreement was declared to be valid and the respondent was directed to take steps to effect transfer of the property into the name of the applicants.

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