IN THE HIGH COURT OF SOUTH AFRICA WESTERN CAPE HIGH COURT, CAPE TOWN

Case no: 9071/07

In the matter between:

and

JUDGMENT: 22 FEBRUARY 2011

Schippers AJ

"NADEMAAL die partye '« ooreenkoms aangegaan hei met betrekking lot die verdeling van 'n sekere erfporsie van hutle synde n Gedeelte (irond getee in die A/deling van Stellenhosch. Gedeelte 7 van die Plaas Nr. 824,

EN NADEMAAL die partye voorts ooreengekom het met betrekking tot 'n herverdeling van hulle erfporsie

2.	Dit word ooreengekom dot REG [Reginald Charles Van Reenen] "n bedrag van R4000 (VIER DUISEND RAND) sal betaai aan FERROL [Ferrol Walks Van Reenen] in voile en finale vereffening van enige erf'porsie of eis op erfporsie wat FERROL mag he en eis fen opsigle van die EIENDOM, ten opsigte van die boedel van sy wyle Vader en Moeder.
3.	Die bedrag van R4000.00 (VIER DUISEND RAND) sal betaai word deur REG aan FERROL gelyktydig met ondertekening hiervan, en die ondertekening hiervan deur FERROL is ook 'n erkenning van ontvangs van betaling.
4.	Hierdie ooreenkoms sal voorts ook voldoende kwitansie wees met hetrekking tot die ontvangs van gemelde FERROL van sy erfjjorsie in die gemehle boedel en so ook sy porsie von die EI EN DOM. "

[4] The respondents deny that they entered into the agreement. They say that there were no negotiations between them and the applicants regarding the purchase of the first respondent's his half-share of the property; that they did not sign the agreement; and that they did not receive the sum of R4 000 from the applicants.

Prescription

[12] Given that the right to claim transfer of the half-share of the property was enforceable as from 29 January 1986, it cannot sensibly be disputed that a reasonable period for performance of the obligation contained in clause 2 of the agreement has long since elapsed. But the applicants say that it was only in mid-2005 that they discovered that the agreement had not been implemented by their attorneys. They contend that the debt should be deemed not to be due as envisaged in section 12(3) of the Prescription Act. Section 12(3) reads:

"A debt shall not he deemed to be due until the creditor has knowledge of the identity of the debtor and the facts from which the debt arises: Provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care."

'Wat die Wet nastreef, is 'n guide middeweg tussen die onbillikheid aan die een kant. dot 'n potensiele skuldenaar 'n ewigheid na die plaasvind van die gewraakte gebeure skielik met hofverrigtinge bedreig word en die onbillikheid, aan die ander kant, dot 'n potensiele shtldeiser sy aanspraak op regshulp bloat vanwee tydsverloop verheur waar hy, sonder enige verwyt aan sy kant. nie oor die nodige inligling beskik om sodanige hofverrigtinge inmiddels van stapel te stuur nie.

[19] Christie suggests that the seemingly inequitable result of treating ignorance of the non-performance of an obligation as irrelevant should be avoided by treating the failure to perform the contractual obligation as one of the facts from which the debt arose. But even if this approach - which I do not accept is correct is followed in this case, in my view, the applicants could by the exercise of reasonable care have established that the property had not been transferred in accordance with the agreement. There are a number of reasons for this.

[19.3] The first applicant's claim that he assumed that the applicants were the registered owners of the property, does not bear scrutiny. First, he himself entered into the agreement with the first respondent and since 1982 was aware of its existence. He says that Malherbe had drafted the agreement and kept the original. However, it appears that Malherbe had advised the first applicant that because the sale of the property had been effected through a redistribution agreement, it could be transferred directly from the estate to the applicants. In his letter dated I May 1982 to Morkcl & De Villicrs, Malherbe wrote:

We refer to previous correspondence and enclose herewith a copy of an agreement concluded between R.C. van Reenen and F.W. van Reenen in terms whereof R.C. van Reenen is to obtain the exclusive ownership in the property.

Second, contrary to his assertion, the facts show that the first applicant is not a person who would simply accept that Malherbe would earn' out the instruction to transfer the property in terms of the agreement. lie did not carry out his functions as executor with ineptitude. For example, in June 1978 he wrote to Morkcl & De Villiers advising them that he had prepared the liquidation and distribution account according to his instructions and against their advice. lie went on to say that in the event that any objections were lodged to the account, he would not hold the attorneys responsible and would bear the costs if the account had to be redrawn. Likewise, he changed attorneys when Morkel & De Villiers were taking too long to wind up the estate and when, according to him, they disclosed privileged information to Carelse. He then engaged the services of Malherbe. Furthermore, on 1 June 1983 Malherbe wrote to Morkel & De Villiers informing them that the first applicant was pressuring his firm to finalise the matter. In another letter on 22 November 1983 Malherbe informed Morkel & De Villiers that the matter was dragging on and that his clients were becoming extremely impatient. Given the pressure and impatience on the part of the first applicant, it is inconceivable, let alone improbable, that Malherbe would not have informed him of the deed of transfer or its content, nor provided him with a copy of it.

[20]    I accordingly hold that the applicants" claim has been extinguished by prescription.

Non-compliance with the Alienation of Land Act?

[21] The respondents contend that the agreement is void for want of compliance with section 2(1) of the Alienation of Land Act. Section 2(1) is in these terms:

"No alienation of land after the commencement of this section shall, subject to the provisions of section 28, be of any force or effect unless it is contained in a deed of alienation signed by the parties thereto or by their agents acting on their written authority."

[24] At the time of concluding the agreement therefore, the first applicant and the first respondent, as representatives and administrators of the joint estate had full and absolute powers to alienate immovable property falling within the joint estate, even without the knowledge and consent of their spouses. In my opinion the agreement complies with the provisions of section 2(1) of the Alienation of Land Act.

[25] In the light of the conclusions to which I have come, it is not necessary to deal with the respondents' contention that the application should be dismissed because the applicants, when launching it, should have foreseen that a serious dispute of fact was bound to develop.

|27]   The order of this Court is as follows:
1)	The application is dismissed.
2)	There is no order as to costs.