IN
THE HIGH COURT OF SWAZILAND
Civ.
Case NO. 957/90
In
the matter between:
Ephraem
Toya Thwala Plaintiff
And
Abel
Mkhonta 1st Defendant
Sipho
Tsela 2nd Defendant
CORAM :
Hull, CJ.
FOR
FIRST DEFENDANT :Mr. Mamba
FOR
PLAINTIFF :Mr. Vilakati
Order
(18/12/94)
The
plaintiff's claim is that the first defendant agreed in June 1991 to
sell him his half share in immovable property for a sum of E4500
which was duly paid, but has subsequently refused to complete the
transaction and has subsequently sold the interest in land to the
second defendant.
In
the particulars of claim, the plaintiff goes on to allege that the
instance of the first defendant he subsequently also agreed to buy
the other half of the property from an estate, which stands ready to
complete the transaction. This averment appears to be by way of
completing a narrative of events. What the plaintiff actually seeks
in this action is an order that the sale of the first defendant's
share to the second defendant be declared null and void and that the
first defendant bo ordered to sign the necessary documents to
complete the sale to the plaintiff.
2
The
first defendant excepts on the ground that the agreement on which the
plaintiff relies is contrary to the provisions of section 31 of the
Transfer Duty Act (No. 8 of 1902) because it is not in writing and
signed by both parties or their agents.
The
exception must in my view succeed. The section requires that both
parties must sign the contract for sale if it is to have any force or
effect: Royke v. Medicine 1962 4 SA 281 (C).
Mr.
Vilakati sought to argue that paragraph 6 of the particulars of claim
avers this. With respect it does not. What it alleges is that the
first defendant refused to sign a deed of sal e and the other
documents necessary to give effect to the transfer. It is nowhere
alleged that the plaintiff's cause of action is based on a written
agreement for sale that had been signed by or on behalf of both
parties, and Mr.Vilakati has acknowledged that no such document
exists.
The
exception is allowed. The plaintiff's claim is dismissed, with costs.
It is agreed that these are not to include the costs on the
preparation of the plea that was subsequently filed.
DAVID
HULL
CHIEF
JUSTICE
