By Leza Kotze, Partner, and Lutfiyya Variawa, Candidate Attorney in the Property & Conveyancing department at Shepstone & Wylie Attorneys
The recent appellate case of Tamryn Manor (Pty) Ltd v Stand 1192 Johannesburg (Pty) Ltd (785/15)  ZASCA 147 (30 September 2016) raised the question: When is an agreement for the sale of land, on the face of it valid and compliant with the requirements of the Alienation of Land Act 68 of 1981 (“the Act”), capable of being rectified?
The circumstances giving rise to this dispute were that the person who signed as the purchaser was not the true purchaser and an order was sought substituting the true purchaser in the agreement. This was defended by raising a special plea that should the agreement not reflect the true purchaser, then the agreement would become invalid as it did not comply with the strict requirements of the Act. This would result in the rectification of the agreement not being permissible.
According to the SCA, the starting point for determining whether rectification should be ordered is whether the agreement meets the statutory requirements set out in the Act. The Act requires, in terms of Section 2(1), for any sale of immovable property to be reduced to writing in a deed of alienation and duly signed by the parties thereto or by their agents acting on their written authority. On the face of it, the agreement must comply with such requirements before any legal force by rectification can be invested in the document.
The SCA referred to the approach in Inventive Labour Structuring (Pty) Ltd v Corfe  ZASCA 139 which found that once the above-mentioned determination is in the affirmative, then the next enquiry is whether a proper case for rectification has been made. Should this be so, then an order for rectification must be granted.
In the present case, the court found there to be no dispute that the agreement met all the essential requirements and elements for a valid contract of sale, as well as all the statutory requirements as set out in the Act. Based on that, the agreement was deemed valid and capable of rectification.
Although the SCA did not rule on whether to grant the rectification, but instead referred it back to the trial court to decide, this judgement has made it clear that written agreements of sale of land can be capable of rectification so long as on the face of it, they comply with the requirements of the Act. The only question then left to be answered, is whether or not a proper case for rectification has been made out by the party seeking the order.
For any queries on the above, please contact:
Partner in the Property & Conveyancing department
Shepstone & Wylie Attorneys
+27 83 225 8577