THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

CASE NO:314/06

Reportable
In the matter between

EXDEV (PTY) LTD

APPELLANT

and

YEOMAN PROPERTIES 1007 (PTY) LTD

1ST RESPONDENT
ROYAL ALBATROSS PROPERTIES 185 (PTY) LTD       2ND RESPONDENT
JACOBUS JOHANNES STEYN

3RD RESPONDENT

CORAM: NAVSA, LEWIS, and MLAMBO JJA

HEARD:  24 AUGUST 2007
DELIVERED: 19 SEPTEMBER 2007
SUMMARY:  An option for the purchase of immovable property is not
invalid merely by reason of its silence on the terms of payment of the
purchase price. In the absence of express agreement the law implies
these terms.

Neutral Citation: This judgment may be referred to as Exdev v Yeoman Properties
[2007] SCA 107 (RSA)

LEWIS JA

[1] This appeal is against an order of the Pretoria High Court (Makhafola
AJ) refusing an interdict pendente lite. The appeal is not opposed, and other
litigation between the parties is still pending. Leave to appeal against the
refusal of the interdict was granted by the high court.

[2] The appellant (Exdev) had exercised an option to purchase immovable
property from the first respondent (Yeoman Properties). Before transfer was
effected to Exdev it discovered that Yeoman Properties had sold the same
property to the third respondent, acting for a company to be formed, the
second respondent (Royal Albatross). Exdev accordingly applied for an
interdict to prevent the transfer of the property to Royal Albatross pending the
final adjudication of the litigation. The interdict was refused on the basis that
the option was invalid, being silent as to the terms of payment.

[3] The day after leave to appeal was granted to Exdev, Yeoman
Properties transferred the property to Royal Albatross pursuant to the second
sale. Exdev instituted action in the Pretoria High Court against both Yeoman
Properties and Royal Albatross claiming transfer to it of the property or
alternative relief. The respondents have raised numerous defences, both to
the initial application and to the action. Only one is germane to this appeal –
the validity of the option granted by Yeoman Properties to Exdev. Related to
this are the pleas of res judicata raised by the respondents (as defendants) in
the action. They plead that the validity of the option was determined by the
high court when it refused the interdict pendente lite. Since the raising of this
plea (and also the defence of lis alibi pendens, that is, the appeal to this
court), no further steps have been taken in the action. This court was informed
from the bar, however, that the property in issue has been sold and
transferred yet again.

[4] The sole issue determined by the court below is the validity of the
option and that, as I have said, is the only issue before us. But now that the
property has in fact been transferred to other parties, and the relief sought –

restraining the transfer of the property – is no longer possible, it may be
argued that the issue is academic and that we are precluded from considering
the appeal by s 21A of the Supreme Court Act 59 of 1959.  The appeal may
thus, on that basis, have no practical effect.

[5] In my view, however, the issue of the validity of the option is still live
between the parties: the mere fact that the plea of res judicata has already
been raised leads to the conclusion that the decision of the court below may
well preclude the trial court, in the action between the parties, from
reconsidering the question of the validity of the option on the same basis.  The
reason for the decision of the court below is open to doubt and thus should be
clarified. Moreover, although it is not desirable that issues between parties,
and appeals, should be heard on a piecemeal basis, especially where the
appeal will not be dispositive of all the issues, in this case an injustice to
Exdev may well be prevented by a decision of this court on the legal point at
issue.

[6] I turn thus to the issue to be decided. When the application for the
interim interdict was argued, Yeoman Properties raised a point in limine: the
option to purchase the property, it contended, was invalid because it was
silent on the method of payment of the price and as to when payment had to
be made. The high court accepted this argument. Regrettably it did not have
regard to the basic principle, applied consistently in our law, that in the
absence of express agreement on the time for and method of payment, the
price is payable in cash against delivery – that is, in the case of immovable
property, transfer.1 The court thus erred in finding on this basis, and its finding
should not prejudice Exdev in subsequent litigation.

1 See, for example, Breytenbach v Van Wyk 1923 AD 541 at 546; Slomowitz v Van der Walt
1960 (4) SA 270 (T) at 275-276; Pienaar v Fortuin 1977 (4) SA 428 (T) at 429G-H and
Kennedy v Botes 1979 (3) SA 836 (A). Contrast Patel v Adam 1977 (2) SA 653 (A), where the
contract included a term relating to the payment of the price in instalments, but was held to be
invalid because the amount of the instalments to be paid was left to the purchaser to
determine.

[7] I must emphasise that this court is not in a position to determine the
validity of the option, given the other defences raised by Yeoman Properties,
which are based on the facts. Only the trial court will be in a position to
consider those. But on the point of law I consider that Exdev is entitled to
succeed in its appeal. An option to purchase immovable property (and of
course a simple contract for the sale of immovable property), is not invalid
merely because it does not set out the method of and time for payment. In the
absence of express agreement the law implies these terms.

[8] The appeal is upheld, with costs on an unopposed basis.
The order of the court below is replaced with the following:
‘The point in limine is dismissed with costs.’

_____________
C H Lewis
Judge of Appeal

Concur: Navsa and Mlambo JJA