THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT
REPORTABLE

Case No: 327/2013

In the matter between:

MICHAEL ROBARTS

APPELLANT

and

STEFAN OKREGLICKI ANTONI NO           FIRST RESPONDENT
CARLA ANTONI NO                                   SECOND RESPONDENT
ANTON JAMES SLABBERT NO                  THIRD RESPONDENT

Neutral citation:   Robarts v Antoni NO (327/2013) [2014] ZASCA 64

(19 May 2014)

Coram:
Maya, Leach and Theron JJA, Van Zyl and Mocumie
AJJA

Heard:
17 March 2014

Delivered:          19 May 2014

Summary:
Contract – alleged oral agreement granting respondents height
servitudes over appellant’s property in exchange for zoning scheme departures and
title deed amendment concessions not proved – servitudes included in the definition
of ‘any interest in land’ and capable of alienation by exchange as envisaged in s 2(1)
of the Alienation of Land Act 68 of 1981 – servitudes a subtraction of the dominium
of the servient land and s 2(1) requires agreement granting them to be in writing and
signed by the parties – written agreement not proved.

_________________________________________________________

ORDER
___________________________________________________________

On appeal from: Western Cape High Court, Cape Town (Louw J sitting
as a court of first instance):

1 The appeal is upheld with costs including the costs of two counsel
where employed.
2 The order of the court below is set aside and replaced with the
following:
‘(a) The application is dismissed.
(b) The applicants shall pay the respondents’ costs of suit including the
costs of two counsel and the wasted costs occasioned by the hearing on
28 February 2013.’
___________________________________________________________

JUDGMENT
___________________________________________________________

MAYA JA: (LEACH AND THERON JJA, VAN ZYL AND MOCUMIE
AJJA concurring)

[1] This is an appeal against a judgment of the Western Cape High
Court (Louw J). The court below granted the respondents an order of
specific performance of a contract and directed the appellant (Robarts) to
do all things necessary to permit the registration of certain height
servitudes over an immovable property belonging to his late father’s
estate (the Robarts property). The appeal is with the leave of the court
below.

[2] The respondents are trustees of the Stefan Antoni Family Trust. In
that capacity, they are the registered owners of another piece of
immovable property (the trust property), which adjoins the Robarts
property, in respect of which the height servitudes were sought and on
which the first respondent (Antoni) and his wife, the second respondent,
resided. Robarts is the son of the late Mr Frank Robarts and the
testamentary heir to the deceased estate which owns the Robarts property.
Robarts was sued in the court below together with the joint executors of
the deceased estate who administered the Robarts property. He lives on
the property and would become its registered owner in terms of a
redistribution agreement he concluded with the executors.

[3] The dispute concerns the two residential properties which are
situated on the Atlantic Seaboard in Bantry Bay, Cape Town. Both enjoy
spectacular views of the Atlantic Ocean which contribute significantly to
their huge value. As the Robarts property is situated directly in front of
the trust property, it may affect the sea views enjoyed from the trust
property if developed vertically.

[4] In the latter part of 2011, Robarts started developing the Robarts
property, which was damaged by a fire in which his father died, with the
intention of moving in. He was assisted by a town planner, Mr Brümmer.
To protect their interests, the respondents also engaged a town planner,
Mr Burhmann. The latter took the view that the development, which
inappropriately preceded municipal approval of its plans, breached
various restrictive conditions registered against the property’s title deed.
For example, the title deed prescribed that only one dwelling could be
built on the erf, to the extent of only a third of the erf’s area, and
prohibited the use of galvanised iron roofing. The development, however,

comprised two dwellings, covered 56 per cent of the erf and included a
roof, found unsightly by the Antonis, made of sheet metal. In addition,
according to Antoni, the planned building was placed inconsiderately on
the site in relation to neighbours as its windows and balconies overlooked
neighbouring properties. It was further complained that an inappropriate
location (the roof) was proposed for the DSTV dish, air-conditioners and
solar panels.

[5] Pursuant
to
threatened
litigation
and
several
e-mail
communications, in which some of the issues were resolved (Robarts
agreed to relocate the DSTV dish, solar panels and air-conditioners from
the roof) the parties, represented by their town planners, met on 25 July
2012. The purpose of the meeting was to settle the remaining differences
and future rights in respect of both properties. At that meeting the
respondents agreed not to object to Robarts’ applications for departure
from various zoning scheme requirements and amendments to the title
deed conditions.

[6]     According to the respondents, Robarts would, in exchange for these
concessions, register various height servitudes over the Robarts property
in favour of the trust property.  Robarts is further alleged to have agreed
to change the roof material to non-trafficable steel ‘clip lock’ upon which
stone chips would be set in epoxy. Robarts however disputed any such
agreement. He stated that he reserved his position in respect of the stone
chips on the roof until he had satisfied himself that they would not pose a
problem and did not agree to any specific departure or details of any
servitudes.

[7] It was common cause though that Robarts and Antoni shook hands
at the conclusion of the meeting and agreed that Brümmer would record
the proceedings in writing. According to Robarts, if the parties found the
Brümmer draft agreement (the Brümmer draft) suitable, they would sign
it and there would be a final agreement only when both parties agreed to
and signed a written document recording an agreement. Thereafter, on 30
July 2012, Brümmer sent Robarts a draft agreement by e-mail and asked
for his comments. He also e-mailed a copy to Antoni with a note that he
was giving him a ‘sneak preview’ although he did not yet have Robarts’
permission to do so. The Brümmer draft mis-stated two of the dimensions
of the servitudes and omitted the items agreed upon before the meeting.
Robarts was not satisfied with the draft’s recordal regarding the roof
material. On 1 August 2012 Brümmer, on behalf of Robarts, informed
Antoni that Robarts had been advised by ‘clip lock’ roof suppliers that
putting stone chips on the roof would void its guarantee. He asked Antoni
to consider alternative roofing material. Antoni responded on the same
day and undertook to do so in exchange for permission to build a timber
deck off the fourth bedroom of the trust property. He enclosed a copy of
the Brümmer draft which was amended by the correction of the
misreported figures and the addition of the items agreed upon before the
meeting. He also attached a diagram reflecting the agreed height
servitudes for addition to the ‘agreement package’ (the Antoni draft).

[8] On 2 August 2012 Robarts extensively modified the Brümmer draft
and sent a signed copy of the revised document (the Robarts draft) to
Antoni the same day. The changes included Robarts’ description of
himself as a representative of the Robarts property and not its owner as
previously recorded. No reference was made to a stone chip roof cover.
Instead, a cost sharing arrangement in the event that other roofing

material was used, and non-variation, non-waiver and non-novation
clauses were included. A clause providing for the registration of the
servitudes immediately after registration of transfer of the Robarts
property to Robarts was also inserted.1 The respondents replied eight days
later through their attorneys, Slabbert Venter Yanoutsos Inc. They
advised Robarts that his draft did not accurately record the terms of the
agreement reached by the parties at the meeting. The response included
an amended copy of the Antoni draft (the Slabbert draft) which
incorporated a clause stating that the agreement was between the
executors of the deceased estate, Robarts and the respondents.

[9] Robarts wrote back on 14 August 2012. He noted that the
agreement was nullified by a difference of opinion on a critical term of
the parties’ agreement in the drafts and suggested a meeting to resolve the
disagreement. After some to and fro-ing in further e-mail correspondence
on 15 and 21 August, all went quiet without resolution of the dispute. In
the meantime, the development of the Robarts property had continued to
completion without objection to any of the Robarts’ planning applications
for departure and title deed amendments from the respondents. On 16
November 2012 the respondents sold the trust property subject to a
condition that they register the servitudes agreed to by Robarts by 1
March 2013. Their attorneys simultaneously sent Robarts another copy of
the Slabbert draft which they insisted represented the parties’ agreement
of 25 July 2012. In his reply of 29 November 2012, Robarts denied that
any final agreement had been reached at the meeting and averred that the
subsequent offer he had made to Antoni had been rejected.

1 The latter amendment, which the respondents claimed to have noticed only after the opposing
affidavits were delivered in the application proceedings, prompted them to amend the relief they sought
by seeking to compel Robarts directly, and not the executors of the Robarts estate, to register the
servitudes once he took transfer of the Robarts property.

[10] Pressured by the sale condition to register the height servitudes, so
he said, Antoni signed the Robarts draft on 29 January 2013. It was e-
mailed to Robarts on the following day with a request for him to co-
operate in the registration of the height servitudes. Robarts’ refusal to do
so prompted the respondents to launch these proceedings in a bid to
enforce the signed Robarts draft.2

[11] In the court below Robarts denied that the signed Robarts draft
constituted a binding written agreement. He argued that it was merely an
offer made to the respondents to contract on its terms, which was rejected
on 2 August 2012 and was followed by a counter-offer on 10 August
2012 which Robarts did not accept. Alternatively, Robarts continued, if
the offer did not lapse, he revoked it before Antoni signed it on 29
January 2013. And it would have been open only for a reasonable period
and was no longer available for acceptance when Antoni signed it, six
months after it was made.

[12] The court below was not persuaded by these submissions. It found
that the parties had concluded an oral agreement on 25 July 2012 and that
all that remained was to reduce their consensus into a formal, written
agreement which the parties mandated Brümmer to do. In the court’s
view, the various drafts were an attempt to present the respective drafters’
version of the agreement. The court accepted that Antoni was compelled
to sign the Robarts draft because of the delay and the urgency brought
about by the sale of the trust property. The effect of that, the court found,
was merely that the trust waived its right to a written record of the oral

2 The draft agreement made provision for registration of the height servitudes in clauses 2.1 and 2.2
which the respondents’ notice of motion specifically cited.

agreement regarding the roof material. The court below concluded that
the Robarts draft signed by Antoni became the written, agreed version of
the terms of the parties’ oral agreement and thereby constituted a valid
written agreement between the trust and Robarts in his personal capacity.
For that reason, Robarts had to facilitate the registration of the servitudes.

[13] On appeal before us, the issues distilled to whether (a) the parties
concluded a binding oral agreement on 25 July 2012; (b) s 2(1) of the
Alienation of Land Act 68 of 1981 (the Act) applies to the matter and
requires the agreement, which the trust seeks to enforce, to be in writing,
and (c) the legal significance of the various draft agreements and the
Robarts draft relied upon by the respondents.

[14] As indicated above, the respondents’ case in the court below rested
on an alleged written agreement, in the form of the signed Robarts draft,
concluded on 29 January 2013. However, they changed tack on appeal in
an argument which proved somewhat difficult to follow. It was contended
on their behalf that Robarts and the trust concluded a binding oral
agreement on 25 July 2012 which precluded Robarts from making any
offer to contract thereafter. By signing the Robarts draft, now termed a
‘written instrument’, Antoni meant merely to facilitate proof of the terms
of that oral contract and did not bring about a new contract. The trust
chose to sue not on the oral agreement but on the written instrument as it
was constrained to do by the operation of the parol evidence rule once
Antoni signed it.3 And even though the written instrument was a
‘misrecordal’ of the oral agreement as its terms were inconsistent with

3 According to this rule of evidence, a written agreement is generally regarded as the exclusive
memorial of the parties’ transaction and, in litigation between them, no evidence concerning the terms
of such transaction may be adduced save the document itself or secondary evidence of its contents
which may not be contradicted or amended in any manner by parol evidence. See Union Government v
Vianini Ferro-Concrete Pipes (Ltd) 1941 AD 43.

what was agreed upon at the meeting, there was ‘substantially one
agreement’; the oral agreement which remained extant. Thus the Act – in
terms of which no alienation of land shall be of any force or effect unless
it is contained in a deed of alienation duly signed by the parties or their
agents acting on written authority4– did not apply as it does not require
the agreement relied upon to be in writing because there was no
alienation of land involved. Alternatively, the relief sought was
nevertheless competent because the written instrument, by which the
parties intended to be bound despite its inconsistency with the oral
agreement, met the requirements of the Act. The nub of the respondents’
argument on appeal therefore, as I understand it, is that they seek specific
performance of provisions of a binding oral agreement which are
inaccurately recorded in a written instrument signed by both parties.

[15]    The respondents’ submissions are beset by a host of difficulties as
their counsel was constrained to concede in argument before us. The
foremost hurdle is that their application did not set out to enforce the
provisions of an oral agreement. They relied wholly on an alleged written
agreement which, by their own admission, was a ‘misrecordal’ of the
terms of the alleged oral agreement, nonetheless signed by Antoni to
bring about a written agreement for expedience, which entitled the
respondents to an order of specific performance of its provisions. Antoni
stated unequivocally in the respondents’ affidavits that the respondents
resolved to accept the misrecordal and waive any right to insist on an
accurate recordal because of the impending transfer of the trust property
and that he, accordingly, signed the Robarts draft on the trust’s behalf to
‘bring about a contract which ... [he] was prepared to go along with’. It
was then made plain in those affidavits and in the correspondence of their

4 Section 2(1) of the Act.

attorneys following the signing of the Robarts draft that it was its
provisions and not the oral agreement that they sought to enforce. Their
reference to the parol evidence rule conclusively supports this view
because if it indeed applies they are then confined to rely on a valid
written agreement between the parties.

[16] The case argued by the respondents on appeal is entirely different
to that advanced in their papers and the order sought in the court below.
Quite obviously, Robarts would be considerably prejudiced if the
respondents were allowed to change their approach at this stage.5 As was
argued on his behalf, he might have conducted his case very differently if
the respondents had indicated that they relied on an oral agreement
instead of a written one. He might have taken steps to disprove it by
adducing facts he thought were irrelevant to the allegations that had been
made or seek a referral of the matter to oral evidence, in light of the
material disputes of fact regarding what was agreed at the meeting of 25
July 2012. I see no reason to reject Robarts’ version on the papers as
there is nothing inherently far-fetched or clearly untenable in it.6 This is
especially so in the light of, inter alia, (a) Brümmer’s odd reference to ‘a
sneak preview’ when he sent Antoni a copy of his draft recordal, which
still awaited Robarts’ comment and approval, if a firm agreement had
been reached on the issues at the meeting, (b) the several reformulations
of the Brümmer draft which all embodied new proposals on substantive
issues not even raised at the meeting, and (c) the very fact that the
respondents opted to rely on a document that they themselves

5 Swissborough Diamond Mines (Pty) Ltd & others v Government of the Republic of South Africa &
others 1999 (2) SA 279 (T) at 323F-324C; MEC for Health, Gauteng v 3P Consulting (Pty) Ltd 2012
(2) SA 542 (SCA) paras 27 – 31.
6 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E-635C;
National Scrap Metal (Cape Town) (Pty) Ltd & another v Murray & Roberts Ltd & others 2012 (5) SA
300 (SCA).

acknowledged did not embody the terms of the alleged oral agreement.
The facts show nothing but that no firm agreement was reached on 25
July 2012 and that the respondents failed to prove the binding oral
agreement on a balance of probabilities as their counsel prudently
conceded.

[17] All indications on the facts are rather that the parties intended to be
bound only by a written and signed agreement as contended by Robarts.
This has to be so in any event because, as indicated above, s 2(1) of the
Act requires alienation of land to be contained in a deed of alienation
duly signed by the parties or their agents acting on written authority to be
valid. In terms of s 1(b) of the Act ‘land’ includes ‘any interest in land’
and ‘alienate’ which corresponds with ‘alienation’, in relation to land,
means ‘sell, exchange or donate’. It is established that a praedial
servitude (such as the height servitudes involved here)7 constitutes an
‘interest in land’ as envisaged in the Act.8 The height servitudes are real
rights which diminish the dominium of the owner’s rights in the Robarts
property as they entitle the respondents and their successors in title to
restrict the owner of the Robarts property from exercising normal rights
to ownership and developing the property to its full potential.9

[18]    As was argued for Robarts, the parties’ affidavits and indeed the
written instrument relied upon by the respondents, make clear that the

7 Praedial servitudes, as opposed to personal servitudes, are created in favour of the successive owners
of the dominant land; perpetual; attached to an immovable property; indivisible; and alienated together
with the alienation of the dominant land.
8 Brink v Stadler 1963 (2) SA 427 (C) at 428H-429F; Felix en ‘n Ander v Nortier NO en Andere [1996]
3 All SA 143 (SE) at 153b-154c; Janse van Rensburg v Koekemoer 2011 (1) SA 118 (GSJ) paras 8, 16
– 18.
9 Denel (Pty) Ltd v Cape Explosive Works Ltd & another Cape Explosive Works Ltd & Another v Denel
(Pty) Ltd & Others 1999 (2) SA 419 (T); Erlax Properties (Pty) Ltd v Registrar of Deeds & others
1992 (1) SA 879 (A) at 885B.

servitudes were agreed upon ‘in exchange’ for the zoning scheme
departures and title deed amendments, which would impinge on the trust
property, sought on behalf of the Robarts property. The trust would waive
its rights to enforce the zoning scheme and title deed restrictions and
support Robarts’ applications in that regard. In exchange, Robarts would
abandon the right to build higher than he was otherwise entitled and
secure the servitudes for the trust property. Each party therefore agreed to
waive certain rights and simultaneously undertake certain obligations in
exchange for the same concession from the other. In sum, the parties
exchanged corporeal rights in land. So, whilst there may not have been an
alienation of an interest in land in the form of a sale or donation, there
certainly was an exchange thereof in the manner envisaged in s 2(1) of
the Act. The decision of this court in Hoeksma & another v Hoeksma 10
upon which the respondents sought to rely cannot assist because it is
distinguishable. There, the agreement in issue was intended to be a
compromise and not an exchange and there was in any event no
discernible object exchanged. The Act must therefore apply to the written
instrument relied upon by the respondents as they also acknowledged.

[19]   The respondents consequently have to prove the existence of the
written agreement on which they rely.11 To that end, they must show that
a binding agreement was concluded between the parties when Antoni
signed and sent the Robarts draft, which manifestly constituted a fresh
offer, to Robarts on 30 January 2013. Interestingly, they conceded, albeit
in another context, that even if there was an oral agreement, it would be
legally irrelevant or moot if nothing more had happened after the meeting
of 25 July 2012 or if one or both of the parties did not sign the written

10 Hoeksma & another v Hoeksma 1990 (2) SA 893 (A).
11 Kriegler v Minitzer & another 1949 (4) SA 821 (A) at 826 – 828; Da Silva v Janowski 1982 (3) SA
205 (A) at 219B-C and 220A-B.

instrument of 29 January 2013. And Robarts would thus have been
entitled to make a written offer in whatever terms he wished. This
concession must obviously redound to Robarts’ favour in this instance too
as the result is the same: there was no oral agreement. In that case
Robarts and the respondents themselves were at liberty to renegotiate the
terms of the mooted arrangement. This is precisely what Robarts did in
his draft as the respondents accepted.

[20] Upon receiving the Robarts draft on 2 August 2012, Antoni
telephoned Brümmer and told him that he would institute legal action as
the draft differed from what was agreed at the meeting of 25 July 2012. A
week later, on 10 August, the trust’s attorneys sent Robarts the Slabbert
draft which required him to sign a materially different, tripartite
agreement.

[21]    An offer lapses if it is rejected by the offeree and a counter-offer
by the offeree amounts to a rejection of the offer.12 Brand JA described a
counter-offer as follows in Legator McKenna Inc v Shea:13
‘[A] binding contract can only be brought about by an acceptance which corresponds
with the offer in all material aspects. “Yes, but” does not signify agreement. At best it
is a counter-offer.’
Once rejected, the offer is dead and cannot thereafter be accepted, unless
it is revived.14 And the offer may be revoked by the offeror at any stage
before it has been accepted. Antoni’s telephone call to Brümmer clearly
constituted an outright rejection of the Robarts offer. And on the above
principles the Slabbert draft, which sought to substantially vary the
Robarts offer was tantamount to a counter-offer. Both occurrences

12 Watermeyer v Murray 1911 AD 61.
13 Legator McKenna v Shea 2010 (1) SA 35 (SCA) para 17.
14 Legator McKenna Inc v Shea 2010 (1) SA 35 (SCA) para 17; Collen v Rietfontein Engineering
Works 1948 (1) SA 413 (A) at 420.

constituted a rejection of the Robarts offer. Robarts did not revive the
offer and simply completed his development as he saw fit, without paying
any attention to the items in issue between the parties. That conduct
clearly evinced an attitude that the offer was no longer open.15 In the
circumstances, Antoni’s signing of the Robarts draft did not bring about a
written agreement between the parties. And that is the end of the
respondents’ case.

[22]   It must be said for the sake of completeness that even if it were
accepted that the written instrument constituted a binding agreement, the
respondents would face yet another practical problem. On their version,
they concluded the oral agreement with the executors of the Robarts
estate but struck the written agreement with Robarts who was seemingly
acting in his sole interest. In that case, the executors were not party to the
written instrument and it could not be enforced against the estate which
may still own the Robarts property.

[23] In the result, the appeal succeeds and the following order is made:
1 The appeal is upheld with costs including the costs of two counsel
where employed.
2 The order of the court below is set aside and replaced with the
following:
‘(a) The application is dismissed.
(b) The applicants shall pay the respondents’ costs of suit, including the
costs of two counsel and the wasted costs occasioned by the hearing on
28 February 2013.’

15 Wissekerke en ‘n ander v Wissekerke 1970 (2) SA 550 (A) at 557F-H.

________________________
MML MAYA
JUDGE OF APPEAL

APPEARANCES:

For Appellant:

J Muller SC (HL du Toit)
Instructed by:
Kritzinger & Co, Cape Town
Matsepes Inc, Bloemfontein

For Respondents:
M Fitzgerald SC (D Baguley)
Instructed by:
Slabbert Venter Yanoutsos Inc, Cape Town
Janice Hayden, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

19 May 2014

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

Robarts v Antoni NO & others
(327/2013) [2013] ZASCA 64 (19 May 2014)

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

Today the Supreme Court of Appeal (SCA) delivered a judgment upholding the appeal by the
appellant, Michael Robarts, against an order of the Western Cape High Court, Cape Town granting
the respondents an order for specific performance.

The respondents sought certain height servitudes over property belonging to the appellant’s late
father’s estate – the Robarts property. The respondents are trustees of the Stefan Antoni Family
Trust, and are the registered owners of the trust’s property (the Trust property) which adjoins the
Robarts property. The dispute between the parties concerned these residential properties which are
situated on the Atlantic Seaboard in Bantry Bay, Cape Town. The Robarts property is situated directly
in front of the Trust Property and the concern of the respondents was that if the Robarts property was
to be developed to its full potential, it may affect the sea views enjoyed by the Trust property.

In 2011, Robarts commenced development of the Robarts property, as a result of damage caused by
a fire, in which his father died. The respondents were of the view that the developments breached
various zoning scheme and title deed conditions attaching to the property but were amenable to
supporting Robarts’ departure applications to the local authority in exchange for certain height
servitudes against the Robarts property, relocation from its roof of solar panels, DSTV dish and air-
conditioner units and the use of ‘clip lok’ roofing with stones set in epoxy instead of the sheet metal
roofing proposed in the development plans. The parties represented by their town planners met on 25

July 2012 with a view to settling and future rights regarding both properties. At the conclusion of the
meeting they tasked Robarts’ town planner, Mr Brümmer, to prepare a draft document recording the
proceedings for subsequent approval. Neither party was happy with Mr Brümmer’s product and they
exchanged various amended drafts in a bid to capture what each contended was agreed upon at the
meeting. On 2 August, Robarts extensively modified original draft and sent a signed copy of the
revised document to the respondents. The respondents replied shortly that his draft did not accurately
record the terms of the agreement reached at the meeting and attached a copy of their own draft
setting out different terms.

Robarts did not accept the latter document and completed the development without paying any heed
to the disputed items. On 2 November 2012, the trust concluded an agreement for the sale of its
property, and sold the property subject to a condition that they register the servitudes agreed to by
the appellant by 1 March 2013. Under pressure to have the height servitudes registered, the
respondents signed Robarts’ draft and returned it to him, with an entreaty for his help regarding
registration of the servitudes. Robarts however refused to co-operate and took the view that by their
counter-offer, the respondent’s had rejected his offer of 2 August 2012, which was no longer open for
acceptance. This prompted the respondents to launch proceedings in the court below.

The court below found that the parties had indeed concluded an oral agreement and all that remained
was to reduce it into a formal written agreement which was achieved when the respondents signed
the Robarts drafts even though it did not accurately record the terms of the oral agreement.

On appeal before the SCA the issue was whether (a) the parties concluded a binding oral agreement
on 25 July 2012; and (b) s 2(1) of the Alienation of Land Act 68 of 1981 applies to the matter and
requires the agreement which the trust seeks to enforce to be in writing. The SCA found that all
indications pointed to the fact that the parties intended to be bound only by a written and signed
agreement as contended for by Robarts and that this had to be the case in any event as s 2(1) of the
Alienation of Land Act 68 of 1981 requires alienation of a land interest – ie the exchange by the
parties of registration of real rights in the form of height servitudes, which would diminish the owner’s
dominium in the Robarts property, for the concessions sought by Robarts in respect of the Trust
property – to be contained in a deed of alienation duly signed by the parties.

The SCA held that on the facts no firm agreement was reached on 25 July 2012 and furthermore that
the respondents failed to prove the existence of a binding oral agreement on a balance of
probabilities.

--- ends ---