Court ruling: Sale of immovable property – Alienation of Land Act

In the recent case of Potgieter v Village and others, held at the High Court of South Africa, Northern Cape Division, Kimberly, the applicant applied for an urgent interdict to restrain the first and second respondents from passing transfer of a specific property. The application for the interdict was pending action by the applicant to claim transfer of the property. In this case, both parties to the contract were represented by their attorneys.

Divorce Guidelines In & Out of Community of Property

The Alienation of Land Act (Act 68 of 1981) sets out the statutory requirements that are required when dealing with the sale of immovable property.

Section 2(1) of the Alienation of Land Act reads as follows: “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.”

The court’s decision

The court found that in order to comply with the statutory requirements stipulated in section 2(1) of the Alienation of Land Act, the attorneys (representatives) of both the seller and purchasers would have had to have written authority to bind them (their respective principals) to a valid agreement to sell land. In the lack of such written authority, there is no basis to hold that a valid and binding sale, in respect of the relevant immovable property, has been established.  

It is therefore fundamental to comply with the provisions of section 2(1) of the Alienation of Land Act when entering into an agreement of sale and to ensure that the required written authority is given to a representative should he or she enter into the agreement on behalf of one of the parties.

Want more Snymans articles? Sign up for our monthly newsletter.

Follow Snymans on Facebook for more legal information, tips and news about property.

Recommended for you

The difference between movable and immovable property
Legislative Guidelines

The AARTO Act: constitutional or unconstitutional?[post_view before=""]

The constitutional validity of the Administrative Adjudication of Road Traffic Offences (AARTO) Act and the Administrative Adjudication of Traffic Offences Amendment (AARTO Amendment) Act was recently challenged in the matter between the Organisation Undoing Tax Abuse (OUTA) v The Minister of Transport and others.

Read More
My name has changed - what happens to my property’s title deed?
Legislative Guidelines

Universal Partnerships: what is required?[post_view before=""]

There is currently no statute in South Africa that regulates the relationships between cohabitees if they are not formally married.

Read More
Minors and immovable property
Legislative Guidelines

CSOS and the courts: where do I take my dispute?[post_view before=""]

Here’s a look at a recent case which dealt with a dispute between the body corporate and residents in a sectional title scheme.

Read More
Your Trusted Partner in Residential and Commercial Property Transfers
Legislative Guidelines

The deal collapsed – is the attorney to blame?[post_view before=""]

The case of Nienaber N.O. and van den Berg (the plaintiffs) versus Nelson and Kitching Attorneys (the defendants) highlights the criteria of the duty of care a conveyancer should be aware of when providing services to clients. In this case, the plaintiffs instituted action alleging that the defendants owed them a duty of care as conveyancers and acted negligently and in breach of such duty. Let’s take a closer look.

Read More
Property Blog Articles | Advice | Contractual Matters | Market News
Legislative Guidelines

Can void sale agreements be revived?[post_view before=""]

Formalities are hugely important when it comes to the sale of immovable property, which is governed by the Alienation of Land Act 68 of 1981. The act states that no sale of land is permitted unless it has been put in writing and contained in a deed of sale – also commonly referred to as an Offer to Purchase – signed by all parties involved.

Read More

Need more Snymans content?

Sign up for our monthly newsletter.

Court ruling: Sale of immovable property – Alienation of Land Act

In the recent case of Potgieter v Village and others, held at the High Court of South Africa, Northern Cape Division, Kimberly, the applicant applied for an urgent interdict to restrain the first and second respondents from passing transfer of a specific property. The application for the interdict was pending action by the applicant to claim transfer of the property. In this case, both parties to the contract were represented by their attorneys.

Divorce Guidelines In & Out of Community of Property

The Alienation of Land Act (Act 68 of 1981) sets out the statutory requirements that are required when dealing with the sale of immovable property.

Section 2(1) of the Alienation of Land Act reads as follows: “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.”

The court’s decision

The court found that in order to comply with the statutory requirements stipulated in section 2(1) of the Alienation of Land Act, the attorneys (representatives) of both the seller and purchasers would have had to have written authority to bind them (their respective principals) to a valid agreement to sell land. In the lack of such written authority, there is no basis to hold that a valid and binding sale, in respect of the relevant immovable property, has been established.  

It is therefore fundamental to comply with the provisions of section 2(1) of the Alienation of Land Act when entering into an agreement of sale and to ensure that the required written authority is given to a representative should he or she enter into the agreement on behalf of one of the parties.

Want more Snymans articles? Sign up for our monthly newsletter.

Follow Snymans on Facebook for more legal information, tips and news about property.