CCT89/13

[2014] ZACC 11

2014 (4) SA 124 (CC)

2014 (7) BCLR 741 (CC)

Nkabinde J

20 November 2013

17 April 2014

http://hdl.handle.net/20.500.12144/3733

Application for leave to appeal against a judgment of the Kimberley High Court: Rich NO and Others v Botha and Another (476/09) [2009] ZANCHC 79 (13 November 2009).

Alienation of Land Act 68 of 1981 – interpretation of section 27 – right of purchaser to demand transfer – instalment sale agreement – paid half of purchase price – entitled to demand transfer Breach of contract – forfeiture of monies paid – constitutionality of cancellation clause – non-repayment of amounts paid – disproportionate penalty for breach – reciprocity in contract. Application for leave to appeal against a judgment of the Full Court of the Northern Cape High Court, Kimberley. The matter concerned whether the respondents were obliged, in terms of section 27 of the Alienation of Land Act, to register the transfer of the property in the name of the applicant after more than half of the purchase price had been paid. The respondents contended that the applicant was not entitled to transfer because, in accordance with the section, the purchasers’ (applicant) only remedy if the seller refused to honour the demand for transfer was cancellation. The applicant was also in arrears of monthly instalment payments. The Court held that the applicant was entitled to the transfer of the property as the common law contractual remedy of specific performance is not excluded from section 27, and it would be unfair for the applicant to be deprived of transfer having paid more than half of the purchase price. Relying on the principles of reciprocity in contracts and good faith, the Court ordered that in return, the applicant must register a bond over the property in favour of the respondents and pay all outstanding amounts in arrears. Judgment: Nkabinde J (unanimous)