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In South Africa, the alienation of land is governed by the Alienation of Land Act 68 of 1981. The Act defines alienate in relation to land to mean sell, exchange or donate irrespective of whether such sale, exchange or donation is subject to a suspensive or resolutive condition. In the case where land is sold, the contract recording such sale must be in writing, contain all the essential terms and conditions and be signed by the purchaser and seller.

In the matter of Naidoo and Another v Sanders and Another (D1696/2020)[2023] ZAKZDHC 22, the Applicants sought an order to compel the First Respondent to comply with the terms of the agreement of sale. The sale agreement contained two terms which are relevant to the dispute between the parties.

The first term required the Applicants to obtain a bank guarantee for the full purchase price within thirty days from date of signature of the sale agreement. The second term was the furnishing of the approved building plans. This second term was recorded as a special condition in the agreement. The condition, however, was silent as to who bore the onus of furnishing the plans. It was contended by the First Respondent that this rendered the condition void for vagueness and therefore unenforceable.

It was further argued by the First Respondent that although the Applicants had secured the bond guarantees timeously, the payment thereof was subject to certain stipulations. Nedbank Limited which had granted the bond required repairs to be made to the rotting facia boards and exposed timber boards to the main dwelling and also required approved plans for the main dwelling and granny flat. Accordingly, it was contended that the Applicants had not complied with the provisions of the agreement.

Allied to this argument, the First Respondent further relied on the provisions of the “voetstoets” clause. It was argued that the Applicants were not in a position to impose conditions upon her which were not part were not part of the written agreement.

In dismissing the defences raised by the First Respondent, the court held that in terms of the National Building Regulations and Building Standard Act 103 of 1977 it is the owner or authorised representative of the owner that can make application for the approval of building plans. The First Respondent had therefore misinterpreted the provisions of the clause to the extent that she was not obliged to furnish the approved plans.

The court did however find merit in the argument that the Applicants cannot impose conditions upon her which did not form part of the written agreement. In this instance, however, the Applicants had agreed to pay for the necessary repairs which were required by the bondholder, although without acknowledgement that they bore any responsibility to do so in terms of the agreement.

To mitigate risks, it is prudent for both purchasers and sellers to exercise due diligence. Purchasers should consider engaging the services of professionals who can assess the compliance of building plans, conduct property inspections and advise on potential legal implications. Sellers should be transparent about the status of building plans and provide accurate information to potential purchasers.

It should be noted that there is no legal obligation on a seller to provide approved building plans unless it is stipulated in the sale agreement. If, however, the seller is aware that there are no approved plans for the property and deliberately withheld this information from the purchaser, then this will constitute a latent defect. The seller will then not be able to rely on the “voetstoets” clause to escape liability.