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Sayers v Khan

6 October 2005

Sayers v Khan [2002] 1 All SA 57 (C) - No reference to a "cooling off-right" will render an Agreement of Sale null and void.

Plaintiff and Defendant had entered into a written agreement of sale whereby Plaintiff purchased a vacant piece of ground from the Defendant for the sum of R80 000,00. The Plaintiff instituted action against the Defendant who raised a special plea that the agreement was null and void in that it failed to comply with section 2(2A) of the Alienation of Land Act 68 of 1981 ("the Act).

Section 2(2A) of the Act provides that "the deed of alienation shall contain the right of a purchaser or prospective purchaser to revoke the offer or terminate the deed of alienation in terms of section 29A". Section 29A of the Act, confers on certain purchasers of land the right to revoke an offer to purchase the relevant land or to terminate a deed of alienation entered into in respect of such land, by written notice delivered to the seller or his or her agent within a period of five days after signature of the offer to purchase or of the deed of alienation.

Held - The Court considered the consequences of a failure to comply with the provisions of section 2(2) of the Act. The Act does not expressly stipulate the consequences of non-compliance. The general rule of statutory interpretation is that non-compliance with a statutory prescription results in nullity. However, the crucial issue is always the intention of the legislature in enacting the relevant statutory prescription. The intention of the legislature must be determined according to the established principles of statutory interpretation.

The Court considered the various principles of statutory interpretation which were relevant in this matter. The Court also considered the object of and policy underlying the introduction of section 2(2A) into the Act.

The Court found that the semantic guidelines for the determination of the intention of the legislature in enacting section 2(2A) pointed in different directions. While the wording of section 2(2A) has an imperative character, the provision is expressed in positive language. The Act contains no criminal sanction for non-compliance with the provisions of section 2(2A). On the other hand, section 29A(7)(b) expressly provides that a waiver by a purchaser or prospective purchaser of the rights conferred upon him or her in terms of this section is null and void.

The Court agreed with the Defendant's view that the meaning of the words "shall contain" is that the "cooling-off right" provided for in section 29A must be written into the deed of alienation itself. The policy underlying the enactment of section 2(1) of the Act was to prevent uncertainty and disputes concerning the content of contracts for the sale of land, and of possible malpractices in regard to such contracts. If a deed of alienation were to be regarded as valid despite non-compliance with the provisions of section 2(2A), the object of the legislature in inserting section 2(2A) into the Act would be frustrated or seriously inhibited.

The Court concluded that the effect of non-compliance with section 2(2) of the Act was to render the agreement of sale null and void. The special plea was upheld with costs. The agreement of sale was declared to be null and void.

Full judgment

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