When a Handshake Won’t Hold Up: Lessons from F O v T K

The Supreme Court of Appeal (SCA) recently delivered judgment in a matter that turned on an alleged oral agreement between two parties regarding ownership of immovable property. The case of F O v T K (339/2024) [2025] ZASCA 139 highlights the strict formalities required for the sale or transfer of land in South Africa and reinforces the enforceability of non-variation clauses in written agreements.

Background

The dispute arose after a property, originally co-owned by Mr O and Ms K, was transferred and registered solely in the name of Ms K. Mr O alleged that the transfer had been done for convenience and that the parties had agreed orally that he would retain a half share in the property, or that Ms K would transfer his share back to him at a later stage.

When the relationship between the parties broke down, Ms K denied that any such arrangement existed and relied on the written deed of sale and the registered title in her name. Mr O approached the courts, claiming co-ownership and arguing that the oral understanding between them created enforceable rights.

The High Court rejected his claim, and Mr O appealed to the SCA. The central question before the Court was whether an oral agreement — unsupported by a written document — could confer ownership or co-ownership in immovable property contrary to what appeared in the deed of sale and the title deeds.

The Alienation of Land Act

Section 2(1) of the Alienation of Land Act 68 of 1981 requires that any agreement for the sale of land be in writing and signed by both parties. The SCA confirmed that this requirement is peremptory. Because the alleged oral agreement between Mr O and Ms K was never reduced to writing, it had no legal effect.

The Court emphasised that while parties are free to make private arrangements, such agreements cannot override statutory formalities when it comes to land. Compliance with the Act is a prerequisite for enforceability.

The Non-Variation Clause

The written deed of sale also contained a non-variation clause, stating that no amendment or addition would be valid unless it was in writing and signed by both parties. The Court held that this clause must be respected according to its terms.

As Judge Petse DP remarked:

“Any purported variation of the terms of a written contract that does not comply with the formalities prescribed in a non-variation clause will be void.”

Mr O’s reliance on an alleged oral promise was therefore an impermissible attempt to vary the written contract and could not be accepted.

Ownership and Registration

The Court further affirmed the abstract theory of ownership in South African law: once a property is transferred and registered in the Deeds Registry, ownership passes to the registered owner, even if the underlying contract is later disputed. Accordingly, once the property was registered in Ms K’s name, full ownership vested in her.

Key Takeaways

Agreements for the sale or transfer of land must be in writing and signed by all parties. Non-variation clauses ensure that written contracts cannot be changed by informal arrangements or side agreements. Once registered in the Deeds Office, the title serves as conclusive proof of ownership.

The SCA’s decision in F O v T K serves as a clear reminder that informal understandings — no matter how genuine — cannot replace the formalities required by law. In property transactions, precision and proper documentation are essential to protect all parties involved.

Written by: Maret Carroll
Moderated and approved by: Stacey Barnard

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