Sellers and buyers of land must remember that Section 2(1) of the Alienation of Land Act provides that no sale of land is of any force or effect unless it is contained in a sale agreement signed by the parties or their agents acting on their written authority.
Durban attorney Bridgett Majola of Shepstone & Wylie Attorneys, says “it is not possible in our law to rely on an agreement that does not have all the material terms, even if such agreement has been signed.”
Writing in the company’s Corporate and Commercial Department Flyer July 2008, Mojola draws attention to the case of Fraser v Viljoen (621/2006)  ZASCA 24 (27) March 2008. The Court had to deliberate on the question of whether a contract for the sale of a flat complies with the provisions of the Alienation of Land Act 68 of 1981.
The purchaser sought to enforce an agreement to buy a flat. The flat was leased by the purchaser from the seller who was also the owner of the flat under sectional title. The purchaser sent the seller an incomplete printed form offering to buy the flat. The names of the parties were left blank as was the description of the property, and the offer was unsigned and sent to the seller.
The seller agreed to accept the offer on condition that the purchase price be increased from R180 000 to R185 000. The purchaser then altered the figure on the offer and sent it back to the seller. After the seller had signed, the purchaser then inserted the full description of the property and signed the document, forgetting to record the date of signature.
Despite efforts from the conveyancers to get the seller to sign the necessary documents to effect transfer, the seller avoided signing. The seller then decided not to sell the flat.
On appeal, the purchaser argued that the seller had appointed him as her agent for the purpose of completing the document by inserting the names of the buyer and a description of the property.
The Court held that the very intention of this legislation was to prevent uncertainty, disputes and possible malpractices concerning the sale of land. To accept the purchaser's contentions would be to nullify the object of certainty. The Court accordingly dismissed the appeal holding that the agreement was void for non-compliance with the Alienation of Land Act.
Majola says sellers and buyers of land must note the importance of a properly completed and signed sale agreement. “Parties must ensure that a property sale agreement is in writing, that they do not sign any documents that are incomplete, they must always include the full description of a property, and record the date of conclusion of the agreement when they sign the document. Failure to ensure this will lead to parties being unable to enforce such agreements.”