REPORTABLE
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No: 121/99
In the matter between
OCKERT CORNELIS VERMEULEN
Appellant
and
GOOSE VALLEY INVESTMENTS (PTY) LTD
Respondent
CORAM:
VIVIER, MARAIS, OLIVIER, ZULMAN JJA et CHETTY
AJA
DATE HEARD:
15 February 2001
DATE DELIVERED:
S 2(1) Alienation of Land Act 68 of 1981 - adequacy of description of property sold -
whether exception proceedings appropriate - exception misdirected.
JUDGMENT
MARAIS JA

MARAIS JA:     [1]     With the leave of this Court appellant appeals against
the upholding by Van Deventer J in the Eastern Circuit Local Division of the first
of two exceptions to his particulars of claim in so far as they related to the claim
against Goose Valley Investments (Pty) Ltd (first defendant/respondent).  The
issue raised by the first exception is a narrow one.  Appellant’s claim is
dependent upon the existence of a valid and legally binding written agreement of
sale of certain immovable property at Plettenberg Bay.  The attack upon the
cause of action pleaded was directed at the  formal  validity  of  that  agreement.
The respondent’s contention (upheld  by  the  court a quo) was that the
description of the property sold was insufficient to enable it to be identified
without recourse to the negotiations which preceded the signing of the agreement
and that the agreement therefore failed to comply with the requirements of s 2 (1)
of the Alienation of Land Act 68 of 1981 and was consequently invalid.

Alternatively, it was submitted to be void for vagueness at common law.
[2]          It is necessary to quote fairly extensively from the particulars of claim
and the agreement to appreciate the problem.
“Particulars of Claim
1.
-----
2.
-----
3.
-----
4.
(a)
On 24 December 1994 at Plettenberg Bay and in writing, Plaintiff
sold to First Defendant, who purchased from him for a
consideration of R800 000,00 the immovable property described as
Portion 48 of Ganse Vallei No 444, Division of Knysna.
(b)
Plaintiff acted personally when entering into the said agreement and
Second Defendant represented First Defendant, the latter having
furnished one Marc Player with a Power of Attorney to sign same.
(c)
A copy of the said agreement is annexed hereto marked “A”.
5.
In terms of the said agreement and more particularly clauses 2, 3, 4, 5, 6,
7 and 10 thereof
(a)
First Defendant was inter alia obliged to
(i)
make application to procure the prerequisite consent of the

applicable authorities for the rezoning and subdivision of the
said property for use as a golf course and residential
development scheme and in particular
(aa)
at its own cost and expense, to transfer to Plaintiff a
maximum of ten subdivided erven each approximately
1500m ² in extent as depicted on the layout plan
annexed to the said agreement, such erven to be fully
serviced as to electricity, water and sewerage with all
survey beacons clearly marked;
(bb)
procure the approval for the rezoning of the
homestead portion of the said property to Resort
Zone 2 for the possible future development as flats,
sectional title, timeshare or group housing;
(cc)
at its entire cost and expense to provide to the
boundary of the said homestead portion of the said
property all essential services including water,
electricity and sewerage, such services to be sufficient
for fifteen separate erven or units;
(ii)
procure the prerequisite approval for such rezoning and
subdivision by 30 September 1995 or within a reasonable
time thereafter, should the said approval have been imminent
by the aforesaid date;
(iii)
-----
(iv)
-----

(v)
pay the said purchase price to Plaintiff upon approval of the
rezoning application by 30 September 1995;
(b)
Plaintiff was inter alia obliged to transfer the said property to First
Defendant upon payment of the purchase price and other costs for
which First Defendant was responsible and as soon as possible
after First Defendant had obtained the prerequisite consent for the
rezoning and subdivision aforesaid against First Defendant giving
Plaintiff satisfactory security for its compliance with its obligations
reflected in paragraphs 5 (a) (i) (aa), (bb) and (cc) supra;
(c)
the agreement itself would lapse should First Defendant not be able
to procure the prerequisite consent for the said rezoning and
subdivision.
(d)
-----
(e)
-----
(f)
-----
6.
(a)
In breach of the agreement aforesaid
(i)
First Defendant failed to
(aa)
procure the prerequisite consent for the rezoning and
subdivision of the said property save to the extent of
ten subdivided erven plus one further subdivided erf;
(bb)
provide services as undertaken.

(b)
In compliance with the said agreement First Defendant has paid to
Plaintiff the said purchase price.
7.
(a)
As a result of First Defendant’s breach aforesaid, the parties in
writing entered into an addendum to the said agreement at
Plettenberg Bay on 24 October 1995.
(b)
-----
(c)
A copy of the addendum is annexed hereto marked “B”.
8.
In terms of the said addendum and more particularly clauses 1, 3, 4 and
5 thereof
(a)
the purchase price of R800 000,00 was reduced to R750 000,00
(b)
the rezoning envisaged in the said addendum, Annexure “B”, had
to be approved by competent authorities by 31 December 1995,
failing which the agreement would at the election of Plaintiff, lapse;
(c)
First Defendant was permitted to allow the application for rezoning
prepared by Nel and De Kock to be processed by competent
authorities in its existing form on the following terms and
conditions:
(i)
that First Defendant had to submit a revised application to
competent authorities for the consent within 30 days of the
date of the approval of the said application for rezoning for
(aa)
the subdivision of a further eight erven, bringing the

total to eighteen erven as set out on the diagram
annexed to the addendum, annexure “B”;
(bb)
the rezoning of the homestead portion as detailed in
clause 5 (a) of the agreement annexure “A”;
(ii)
(aa)
should First Defendant fail to obtain any consent
referred to in subparagraph (i) supra then it would be
obliged to pay the Plaintiff the sum of R1 000 000,00
by 30 June 1997 together with interest thereon at the
prime interest rate of Standard Bank of South Africa
as from 1 January 1997 to date of payment thereof;
(bb)
-----
(iii)
(aa)
should First Defendant fail to obtain the consent
referred to in subparagraph (i) (bb) supra, then First
Defendant would be obliged to pay to Plaintiff the said
sum of R500 000,00 by 30 June 1997 together with
interest thereon at the prime lending rate of Standard
Bank of South Africa from 1 January 1997 to date of
payment;
(bb)
-----
(iv)
(aa)
should First Defendant obtain the consent referred to
in subparagraph (i) (bb) supra but fail to obtain the
consent for all or any of the erven referred to in
subparagraph (i) (aa) supra then First Defendant

would  be  obliged  to  pay  to Plaintiff the sum of
R62 500,00 for each erf not approved by 30 June
1997 together with interest thereon at the prime lending
rate of Standard Bank of South Africa as from 1
January 1997 to date of payment thereof;
(bb)
-----
(v)
it was an implied term of the said addendum, annexure “B”,
that the said further subdivision and rezoning of the
homestead portion be obtained within a reasonable time after
the submission thereof to competent authorities within the
time period stipulated in clause 4 (a) of the said addendum.
(d)
save as amended in the said addendum, annexure “B”, the further
terms and conditions of the agreement, annexure “A” would remain
of full force and effect.
9.
(a)
In breach of the addendum aforesaid First Defendant failed to
procure the prerequisite consent by 31 December 1996 and within
a reasonable time of the time period stipulated in clause 4 (a) of the
said addendum, annexure “B”.
(b)
Plaintiff gave fourteen (14) days written notice to First Defendant
as envisaged in the said agreement, annexure “A”.
(c)
Plaintiff has elected to enforce the terms of the agreement and
addendum, annexures “A” and “B” respectively.

10.
(a)
In the premises Plaintiff is entitled to orders compelling First and
Second Defendants jointly and severally to
(i)
provide the ten subdivided erven with services in terms of
Clause 4 (a) of the agreement, annexure “A”;
(ii)
transfer such erven to Plaintiff or his nominee pari passu
with the transfer of the said property to First Defendant by
Plaintiff;
(iii)
to provide at their entire cost and expense to the boundary
of the homestead portion of the said property all essential
services, for fifteen separate erven in terms of Clause 4 (b)
of the agreement, Annexure “A”;
(iv)
provide Plaintiff with an acceptable bank or building society
guarantee in respect of the payment of the sum of R1 000
000,00 by 30 June 1997 together with interest thereon at the
prime lending rate of Standard Bank of South Africa from 1
January 1997.
(b)
Plaintiff tenders transfer of the said property to First Defendant on
compliance with the orders aforesaid subject to First Defendant
providing Plaintiff with satisfactory security for the compliance by
First Defendant of the provisions of clauses 4 and 5 of the
agreement, annexure “A”, as provided for in clause 10 of the said
agreement.
11.
Alternatively and in the event of First Defendant failing to comply with the

above orders within 30 days alternatively a reasonable time, then
(a)
Plaintiff cancels the said agreement with its addendum, annexures
“A” and “B” respectively, and
(b)
in such event Plaintiff alleges that he has suffered damages in the
sum of R4 050 000,00 (being the difference between the values of
the properties which Plaintiff would have received had First
Defendant fulfilled its obligations in terms of the said agreement and
its addendum, and the value of his property unenhanced plus the
paid portion of the purchase price);
(c)
for the payment of which First and Second Defendants are in the
premises jointly and severally liable, which sum is made up as
follows:
(d)
value of
(i)
ten subdivided and serviced erven
@ R300 000,00 each
R3 000 000,00
(ii)
eight subdivided erven
@ R250 000,00 each
R2 000 000,00
(iii)
rezoned homestead erf with services
provided at the boundary
R1 500 000,00
(iv)
TOTAL
R6 500 000,00
(e)
less the value of
(i)
the paid portion of the purchase

price
R 750 000,00
(ii)
Plaintiff’s said property without
subdivision or rezoning
R1 700 000,00
(iii)
TOTAL
R2 450 000,00
(f)
TOTAL DAMAGES
R4 050 000,00
WHEREFORE Plaintiff prays for
1.
Orders compelling First and Second Defendants jointly and severally to
(a)
provide the ten subdivided erven with services in terms of Clause
4 (a) of the agreement, annexure “A”;
(b)
transfer such erven to Plaintiff or his nominee pari passu with the
transfer of the said property to First Defendant by Plaintiff;
(c)
to provide at their entire cost and expense to the boundary of the
homestead portion of the said property all essential services, for
fifteen separate erven in terms of Clause 4 (b) of the agreement,
annexure “A”;
(d)
provide Plaintiff with an acceptable bank or building society
guarantee in respect of the payment of the sum of R1 000 000,00
by 30 June 1997 together with interest hereon at the prime lending
rate of Standard Bank of South Africa from 1 January 1997;
as against Plaintiff’s tender in paragraph 10 (b) supra;

2.
alternatively
(a)
cancellation of the said agreement, annexure “A”, and the
addendum hereto, annexure “B”;
(b)
judgment against First and Second Defendants jointly and severally
in the sum of R4 050 000,00, as and for damages aforesaid;
3.
An order compelling First and Second Defendants to pay the costs of this
action jointly and severally together with interest thereon at the prevailing
legal rate from a date fourteen (14) days after the allocatur to date of
payment;
4.
Further and/or alternative relief.”
[3]          The initial agreement of sale (“A”) was concluded on 24 December
1994 and contained the following provisions relevant to the issue.

“AGREEMENT OF SALE
between
OCKERT CORNELIS VERMEULEN
Identity Number 2412235013003
(Seller)
and
GOOSE VALLEY INVESTMENTS (PROPRIETARY) LIMITED
herein represented by GARY JIM PLAYER, duly authorised hereto, or his
nominee (Purchaser)
WHEREAS the Seller is the registered owner of Portion 48 of Ganse Valley
Number 444 Division of Knysna,
AND WHEREAS the Purchaser is desirous of purchasing a portion of the said
Portion 48/444 for the purposes of constructing thereon a golf course and a
sectional title development.
AND WHEREAS the Seller will retain a portion of Portion 48/444 on which is
situate the main dwelling and outbuildings of the property and will also be
allocated certain additional ground and will receive certain other benefits on the
following terms and conditions:
1.
THE PROPERTY
The Purchaser purchases the entire Portion 48/444 excluding the portion of land
depicted in the diagram annexed hereto marked “X” which portion shall be
referred to as the Homestead Portion and excluding also the portion of land
referred to in Paragraph 4 (a) hereafter.  The property purchased shall hereinafter
be referred to as the Property.
2.
PURCHASE PRICE

(a)     The  purchase  price  in  respect  of  the  Property shall  be  the  sum  of
R800 000,00 (EIGHT HUNDRED THOUSAND RAND) which amount shall be
paid to the Seller upon approval of the re-zoning application in terms of
Paragraph 3 herein, which shall be approved by 30th of September 1995.  Should
the said re-zoning application not have been approved by the competent
authorities by the 30th September 1995 then this agreement shall, at the discretion
of the Seller, lapse and be of no further force and effect.  It is however, a
condition that, should the Purchaser be able to prove that as at the 30th
September 1995, the said re-zoning is imminent and will be approved within a
reasonable time thereafter, then the said date of 30th September 1995 shall be
extended and the agreement shall remain in force, and the Purchaser shall pay to
the Seller interest on the purchase price of R800 000,00 at the rate of 10% per
annum payable monthly in arrear until the said purchase price is paid.
(b)
-----
(c)
-----
3.
RE-ZONING
The Purchaser undertakes, immediately upon the date of this sale, to use its best
endeavours and to make application to procure the consent of whatsoever
competent authorities for the re-zoning and sub-division of the Property.  The
Seller agrees to assist the Purchaser wherever possible to this end, and agrees
further to grant to the Seller or the Seller’s nominee a Power of Attorney in order
to give proper effect to this condition.  It is a condition hereof that the Property
will be developed as part of a golf course scheme, together with neighbouring
properties, and for the opening of a Sectional Title Register.  To give effect to
this condition the Purchaser acknowledges that the Property will have to be
consolidated with other properties to be included in the development scheme and
agrees thereto.
4.
TRANSFER OF PROPERTY BACK TO THE SELLER
(a)     It is a further condition that the Purchaser shall transfer, at the Purchaser’s
total cost and expense, to the Seller or his nominees, a maximum of 10 sub-
divided erven, each approximately 1500m² in extent, to be established around the
Homestead Portion, as depicted on the annexed layout plan or such future
revised layout plan to be approved by the Seller.  These erven shall be fully
serviced as to electricity, water and sewerage and all survey beacons shall be

clearly marked.  Where possible the appropriate erven shall include the Seller’s
existing outbuildings which are associated to the main homestead.
(b)     The Purchaser further undertakes at its entire cost and expense to provide
to the boundary of the Homestead Portion, all essential services, i.e. water,
electricity and sewerage, such services to be sufficient for 15 (FIFTEEN)
separate erven or units.
5.
(a)
ZONING OF HOMESTEAD PORTION TO GENERAL RESIDENTIAL
Simultaneously with the re-zoning and sub-division application as envisaged in
Paragraphs 3 and 4 hereof the Purchaser undertakes to procure the approval for
re-zoning of the Homestead Portion to Resort Zone 2, i.e. for the possible future
development as Flats, Sectional Title, Timeshare or Group Housing.  The
purchaser agrees and undertakes to use its best endeavours and to perform all
acts and deeds of whatsoever nature necessary to give effect hereto.    Should
the Purchaser not succeed with this application, to the entire reasonable
satisfaction of the Seller, by the date when the golf course and associated sub-
division has been completed, then this obligation on the Purchaser shall be
ongoing and indefinite and shall not lapse unless cancelled or varied with the
written consent of the Seller.
(b)
FIRST REFUSAL IN FAVOUR OF PURCHASER
The Seller hereby grants to the Purchaser or its nominee a right of first refusal to
purchase the Homestead Portion subject to the following terms:
(i)
The Seller shall provide the Purchaser with a copy of any
acceptable written offer received (the Outside Offer).
(ii)
The Purchaser shall be afforded a period of 30 (THIRTY) days
within which to equal the Outside Offer and submit its own offer in
writing to the Seller on terms no less onerous than the Outside
Offer.
(iii)
Should the Purchaser fail to equal the Outside Offer to the
satisfaction of the Seller, within the said period of 30 (THIRTY)

days, then the Seller shall be entitled to sell the Homestead Portion
to the Outside Offeror.
(iv)
This right of first refusal shall terminate simultaneously with
abandonment in terms of Clause 2(c) above.  In the event of the
Purchaser taking transfer as envisaged herein, then this right of first
refusal shall lapse after 5 years reckoned from the date of such
registration of transfer.
6 (a) CLUB MEMBERSHIP
The Purchaser hereby warrants that all of the houses or units to be developed at
any future time by the Seller or his nominees, either on the land as described in
Paragraph 4(a) above or on the Homestead Portion shall be eligible for Golf Club
Membership in the eventual development scheme.  The Purchaser further
warrants that Golf Club Memberships will also be made available to all owners
of Share Blocks within The Tides Share Block Development, on the terms and
conditions prevailing from time to time in respect of such memberships.”
(b)
-----
7.
-----
8.
-----
9.
-----
10.
TRANSFER
Transfer of the property shall be given to the Purchaser upon payment of the
purchase price and other costs for which the Purchaser is responsible as soon
as possible after compliance with Paragraph 3 hereof.  The Purchaser shall be
entitled to take transfer at any time after the said re-zoning but subject to the
Seller being given satisfactory security for the compliance by the Purchaser of
(sic) the provisions of Paragraphs 4 and 5 hereof.
11.
-----
12.
-----
13.
-----
14.
-----
15.
-----
16.
-----
17.
-----

18.
-----
19.
-----
20.
-----
21.
-----
22.
-----
23.
-----
24.
-----
[4]         Annexure “X” to the agreement is appended to this judgment.  It is
common cause that the words appearing next to point E and point C are
respectively “shed” and “gate”.
[5]          The addendum (“B”) was in the following terms:

“ADDENDUM
TO THE AGREEMENT OF SALE
between
OCKERT CORNELIS VERMEULEN
Identity No. 2412235013003
and
GOOSE VALLEY INVESTMENTS (PROPRIETARY) LIMITED
herein represented by
, duly authorised hereto
(dated 24th December 1994)
(THE FIRST CONTRACT)
AGREED AS FOLLOWS:
1.
The sum of R800 000.00 (Eight Hundred Thousand Rand) is reduced to
R750 000.00 (Seven Hundred and Fifty Thousand Rand).
2.
Interest at the rate of 15% per annum on R750 000.00 (Seven hundred and
Fifty Thousand Rand) shall be payable monthly in arrear from 1st October
1995 until date of payment of the capital of R750 000.00 (Seven Hundred
and Fifty Thousand Rand).  The first interest payment shall be made by
not later than 31st October 1995.
3.
The sum of R750 000.00 shall be payable upon rezoning as envisaged in
the First Contract.  Should the rezoning not have been approved by the
competent authorities by 31st December 1995, then this agreement shall,
at the entire unilateral discretion of the Seller, lapse and be of no further
force or effect.
4.
Notwithstanding the fact that the application for rezoning as submitted by
Nel & de Kock in September 1995 was not submitted in terms of the First
Contract, the parties agree that same shall be allowed to be processed by
the competent authorities in its current form, subject to the following

further conditions:
a)
Within 30 days from the date of approval of rezoning referred to in
paragraphs 3 and 4 above, the Purchaser shall procure that a
revised application be submitted to the relevant authorities
requesting:
(i)
Sub-division of a further 8 stands, bringing the total to 18
stands as per the diagram annexed hereto marked A, or such
revised layout as shall be agreed to in writing by the Seller.
(ii)
The rezoning of the Homestead portion as detailed in
paragraph 5(a) of the First Contract, i.e. to resort Zone 2 (for
the possible future development as flats, sectional title,
timeshare or group housing).
b)
It is a specific condition that the Purchaser, when submitting the
application in terms of 4(a)(i) above, shall specify to the relevant
authorities that it shall relinquish so much of the bulk or density
pertaining to the proposed sectional title development on the
adjoining property (Goose Valley Phase 2) as may be necessary for
the granting of the approval for the total of 18 stands.
c)
The terms and conditions of paragraph 4(a) and (b) of the First
Contract save where these now vary in terms of the number of
erven and the size of erven, shall specifically apply hereto.
d)
Complete details of the applications envisaged above, together with
all annexures and motivations, shall be given to the Seller or his
nominee for his approval prior to the submission of these to the
competent authorities.  These documents shall be delivered to the
Seller or his nominee by not later than 21 days from the date of
approval of rezoning as envisaged in the First Contract.
e)
The Purchaser agrees and undertakes to use his best endeavours
and do all things necessary to ensure the implementation and
execution of the aforementioned conditions.
f)
Should both of the applications as per paragraphs 4(a)(i) and (ii)

above be unsuccessful, then the Purchaser shall pay to the Seller
the sum of R1 000 000.00 (One Million Rand) by not later than the
30th June 1997, together with interest at prime commercial bank rate,
as charged by the Standard Bank of S A, as this fluctuates,
reckoned from 1st January 1997 to date of payment.  Bank or
building society guarantees in respect of the said amount,
acceptable to the Seller, shall be provided to the Seller by not later
than the 31st December 1996.
g)
Should the application in terms of 4(a)(i) be successful but not that
in terms of 4(a)(ii), then the Purchaser shall pay to the Seller the
sum of R500 000.00 (Five Hundred Thousand Rand), together with
interest at prime commercial bank rate as charged by the Standard
Bank of S A, as this fluctuates, reckoned from 1st January 1997 to
date of payment, the said sum to be guaranteed and paid as per 4(f)
above.
h)
Should the application in terms of 4(a)(ii) be successful, but not
that in terms of 4(a)(i), i.e. that approval not be granted for all or
any of the additional 8 sub-divided erven, then the Purchaser shall
pay to the Seller the sum of R62 500.00 (Sixty Two Thousand Five
Hundred Rand) for each plot not approved and the total sum so
calculated, together with interest at prime commercial bank rate as
charged by the Standard Bank of S A, as this fluctuates, reckoned
from 1st January 1997 to date of payment, and the said sum shall be
guaranteed and paid as per 4(f) above.
5.
Save as amended in terms of the Addendum, the further terms and
conditions of the First Contract shall remain in full force and effect.
6.
Upon signature hereof by the Purchaser, the Seller’s objection lodged with
the Plettenberg Bay Municipality in respect of the zoning application shall
immediately be withdrawn and proof thereof submitted to the Purchaser.
7.
THUS DONE and SIGNED at   Sandton
on this 24 day of October
1995.”

Annexure “A” to the addendum is also appended to this judgment.
[6]          The principles to be applied in considering the first question raised by
the exception are well settled.  “The test for compliance with the statute, in
regard to the res vendita, is whether the land sold can be identified on the ground
by reference to the provisions of the contract, without recourse to evidence from
the parties as to their negotiations and consensus”.  So said Holmes JA in 1971
in Clements v Simpson 1971 (3) SA 1 (A) at 7F-G and there has been no
departure from that approach.  On the contrary, it has been reaffirmed on a
number of occasions by this Court, most recently, in Kriel and another v Le
Roux [2000] 2 All SA 65 (A) at 67 i.
[7]          It is trite law that an exception that a cause of action is not disclosed
by a pleading cannot succeed unless it be shown that ex facie the allegations
made by a plaintiff and any document upon which his or her cause of action may

be based, the claim is (not may be) bad in law.  In the circumstances of this
particular case (putting aside for the moment the complication to which I shall
return in par 8) that means that the excipient (respondent) had to show that ex
facie the written documents relied upon by appellant it will not be possible to
identify the res vendita on the ground and that there is no reason to suppose that
any admissible evidence could conceivably exist which would enable that to be
done.  In my view, the respondent failed to establish that such was the case for
reasons to which I shall return and the exception should have been dismissed on
that ground alone.
[8]          The exception grounded on alleged non-compliance with s 2 (1) was
directed only at the initial agreement “A” and the accompanying layout plan “X”.
It was not directed at the addendum “B” and the accompanying diagram “A” or
at all the documents viewed as a composite whole.  In my view, it was

misdirected.  Whatever the status in law of the initial agreement may have been
is irrelevant.  It is quite plain that the parties commenced to implement it, that it
was thereafter subsumed in the addendum, and that the breach of it alleged in par
6 of the particulars of claim is merely the explanation for the coming into
existence of the addendum.  No relief is claimed in respect of that breach.  The
appellant’s claims are based upon the initial agreement and the addendum viewed
as a composite whole.  If any deficiencies in description of the res vendita
existed in the initial agreement and layout plan they would be of academic interest
only if, when both the agreement and the layout plan and the addendum and the
diagram are read together, the description is adequate.  As it happens, it seems
obvious when the layout plan “X” is compared with the diagram “A”, that the
boundaries of the area referred to in clause 4 (a) of the first agreement and upon
which the 10 subdivided erven were to be established, had been altered and that

the agreement had been varied.  But the fact remains that both the layout plan and
the diagram contain useful descriptive data, common to both, which has to be
taken into account in deciding upon the adequacy of the description of the area
to be excluded from the property sold to the respondent.  It was the alleged
inadequacy of the description of that excluded area which it was argued rendered
the transaction invalid in law.  For that reason too, namely, the erroneous
targeting of the initial agreement and the layout plan “X”, the first exception
should have been dismissed.
[9]          However that may be, I shall assume in respondent’s favour that it was
open to it to argue the exception as if it had been directed at the composite
agreement.  What appears to have been insufficiently appreciated by the court
a quo in considering the question is that by the time the addendum was entered
into on 24 October 1995, ten months had elapsed since the first agreement had

been concluded on 24 December 1994.  By that time, so it is alleged in the
particulars of claim and so it appears from the addendum itself, steps had been
taken in implementation of the first agreement.  Plaintiff had been paid the
purchase price of R800 000,00.  Defendant had submitted an application for the
rezoning to the authorities in September 1995.  Precisely what it comprehended
is not apparent from the papers but the allegation is made in par 6 (a) (1) (aa)
read with par (a) of the particulars of claim that consent for the rezoning and
subdivision of “ten subdivided erven plus one further subdivided erf” was
obtained and that the addendum was entered into thereafter.  Clause 4 (a) of the
addendum provided for a revised application to be submitted after the original
application had been approved.  In the revised application permission was to be
sought for
“(i)
Sub-division of a further 8 stands, bringing the total to 18 stands as
per the diagram annexed hereto marked A, or such revised layout
as shall be agreed to it in writing by the Seller.

(ii)
The rezoning of the Homestead portion as detailed in paragraph 5
(a) of the First Contract, ie to resort Zone 2 (further possible future
development as flats, sectional title, timeshare or group housing).”
[10]          The significance of all this is that the diagram “A” appears to reflect
11 erven for the subdivision of which the consent of the authorities had already
been obtained.  Those are prima facie the erven numbered 1 to 10 and the
eleventh erf is prima facie the Homestead Portion (unnumbered).  The erven
numbered 11 to 18 are prima facie the “further 8 stands” which would bring “the
total to 18 stands”.  The Homestead Portion was obviously not regarded as one
of the 18 stands although four of them (erven 15 to 18) were now situated on
part of it.  If these prima facie impressions are correct (and whether or not they
are would be objectively ascertainable without reference to evidence of the
negotiations between the parties or their consensus, by examining what was
submitted to the authorities when it authorised the subdivision of the first 11
erven) it appears likely that data would be available which, when taken together

with the data appearing on the diagram “A” would enable the boundaries of the
excluded area (and hence of the area sold) to be ascertained on the ground.  The
application which had been made to the authorities and to which reference was
made in the addendum was an objectively existing document when the addendum
was  entered  into  and  reference  to  it  would  not  be  objectionable in law.
[11]          But even if one was to confine one’s attention to the layout plan “X”
and the diagram “A” there appears to be a good deal of data which collectively
suggests very strongly that the boundaries of the area to be excluded can be
identified on the ground by a surveyor without reference to the parties.  The
diagram “A” reflects existing erven which are named (“Neap Tide”, “Summer
Breeze”, etc) some of which share a common border with the Homestead
Portion.  The point “K” is plainly determinable.  True north is indicated and the
diagram appears to have been drawn to scale.  Whether that is so will be

ascertainable by comparing the measurements given in the deeds registry of the
named erven with their depictions in the diagram.  If that is indeed the case, the
angles at which boundary lines meet are measurable and the length of the
boundary lines is also measurable.
[12]          I stress that these are not firm findings.  It may be that some of the
data which I have postulated probably exists, and would be admissible in
evidence if it did exist, does not in fact exist.  But that will only be known once
the appellant has been given an opportunity to adduce evidence.  By allowing the
exception, the court a quo deprived the appellant the opportunity of showing that
the land excluded from the sale can be identified on the ground by reference to
the description of it in the layout plan”X”, the diagram “A”, and other data
admissible in evidence.  In short, it was not an issue which lent itself to fair
resolution by way of exception.

[13]          The same considerations apply to the contention that the transaction
was void for vagueness at common law.
[14]          What requires to be emphasised yet again is that evidence going to
facilitation of the task of relating the description of the res vendita given by the
parties in their written agreement to an area on the ground is not objectionable
provided that it does not relate to the negotiations between the parties or an ex
post facto attempt to discover their consensus, and provided further that no
breach of the parol evidence rule is involved.  As long ago as 1948 this Court in
Van Wyk v Rottcher’s Saw Mills (Pty) Ltd 1948 (1) SA 984 recognised that a
statutory provision that a contract of sale of land must be in writing “cannot
mean that the only evidence by which the property can be identified must be
contained in the writing because that ----- is impossible.”  (Watermeyer CJ at
990.)  In elaborating that statement the learned Chief Justice said:

“It has been suggested that a written contract does not satisfy the
provisions of the statute unless the mere reading of the document is
sufficient to identify the land sold without invoking the aid of any evidence
dehors the document, but a moment’s reflection and an appreciation of
the fact that a written contract is merely an abstraction until it is related, by
evidence, to the concrete things in the material world will show at once
that suggestion makes sec 30 demand performance of an impossibility.”
Since then, numerous instances will be found in the law reports of courts having
regard to objectively existing facts dehors such an agreement in order to decide
whether the description of the res vendita contained in the written agreement
does indeed enable it to be ascertained “on the ground”.  Kriel’s case, supra,
and Headermans Vryburg (Pty) Ltd v Ping Bai 1997 (3) SA 1004 (SCA) are
recent illustrations.  The exception grounded upon the alleged inadequacy of the
description of the res vendita should not have been upheld by the court a quo
on exception.
[15]          A second exception was taken in the court a quo but not decided
because of the upholding of the first exception.  It was directed at prayer 1 (d),

of the particulars of claim.  The point taken was that the relief sought in that
prayer was conditional upon the applications for the subdivision of a further 8
stands and the rezoning of the Homestead Portion being unsuccessful, and that
no allegation that they were unsuccessful had been made in the particulars of
claim.  In this Court counsel for appellant formally abandoned the claims made
in prayer 1 (d), and all that remains to be considered is what impact, if any, that
should have upon the costs orders to be made.
[16]          Appellant has plainly achieved success in this Court in having a
decision that the contract upon which it sues is invalid in law set aside.
Respondent appeared here to resist that but has failed to resist it.  It did not
appear here to defend the upholding of an exception to prayer 1 (d).  As I have
said, the court a quo made no finding on that exception and no argument was
addressed to it thereanent. The parties acquiesced in the court a quo’s
suggestion that only the first exception be argued and that the second be argued

only if the first failed.  In the result, the second exception was never decided.  It
is questionable whether, despite that, respondent could have required this Court
to decide that exception if the claim had not been abandoned.  This Court would,
in effect, have been entertaining an appeal against a non-existent upholding of an
exception to a distinct and separate claim.  In all the circumstances, I see no
good reason to deprive appellant of his costs in either this Court or in the court
below, save that appellant should bear the costs incurred by respondent in the
noting of the exception to prayer 1 (b).
[17]          The costs orders in the court a quo require revision.   In so far as they
relate to second defendant they must remain undisturbed as leave to appeal
against the striking out of plaintiff’s (appellant’s) particulars of claim in so far as
they related to the claim against second defendant was refused both by the court
a quo and by this Court.  In so far as plaintiff (appellant) was ordered to pay the
costs of first defendant (respondent) that order cannot stand in the light of

appellant’s success in this appeal.  Similar considerations apply to the costs of
the application for leave to appeal to the court a quo and to this Court.  The
orders as to costs that should have been made in the court a quo at the hearing
of the exceptions are set out below.  So too are the orders as to costs that
should now be made in connection with the hearing of the application of leave
to appeal in the court a quo and the applications for leave to appeal in this Court.
[18] The following orders are made -
1.
The appeal is upheld with costs, including the costs of two counsel;
2.
The orders of the court a quo made at the hearing of the exceptions are
set aside and substituted by the following orders:
2.1
The particulars of claim are set aside in so far as they relate to
second defendant.
2.2
The exception to the particulars of claim in so far as it relates to the
claim against first defendant and is grounded upon the alleged
invalidity in law of the agreements upon which plaintiff sues, is
dismissed.
2.3
Plaintiff shall pay second defendant’s costs, including the costs of
two counsel.
2.4
First defendant shall pay plaintiff’s costs, including the costs of
two counsel, save that plaintiff is to pay first defendant’s costs of
noting the exception to prayer 1 (d) of the particulars of claim, but

only to the extent that the taxing master considers them to be
severable and quantifiable from the costs of noting the exceptions
to the particulars of claim as a whole;
3.
The order of the court a quo made at the hearing of the application for
leave to appeal, in so far as it related to the issue of costs as between
plaintiff and first defendant, having been set aside by this Court when
granting leave to appeal, and those costs and the costs of the application
to this Court for leave to appeal having been reserved for decision by this
Court, it is now ordered
3.1
that first defendant shall pay plaintiff’s costs, including the costs of
two counsel, in the application for leave to appeal in the court a
quo and,
3.2
in respect of the application to this Court for leave to appeal,
3.2.1 that plaintiff shall pay the costs of second defendant, and
3.2.2 that first defendant shall pay plaintiff’s costs.

R M MARAIS
JUDGE OF APPEAL
VIVIER      JA)
OLIVIER   JA)
ZULMAN   JA)
CHETTY AJA)
CONCUR