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.
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.
Written by Wessel de Kock
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