Van Wyk v The MEC: Department of Local Government and Housing of the Gauteng Provincial Government and Others

In June 2000 the appellant, Mark Van Wyk, purchased Erf 302 Moreletapark at a public auction conducted by the Gauteng Provincial Government and concluded a written deed of sale with the Gauteng Department of Development Planning and Local Government as seller. He paid a 10% deposit and furnished a bank guarantee for the balance. Transfer could not be effected because Erf 302 was notarially tied to Erf 537. In 2005 the parties concluded a second written agreement for the purchase of Erf 537 for R30 000. Despite the appellant’s full performance, transfer was delayed for years while the department sought confirmation of vesting of the properties. In 2008 the national Department of Land Affairs issued an Item 28(1) certificate confirming that both erven vested in the Gauteng Provincial Government. In 2010, the department repudiated the transactions, contending that at the time of sale the properties had not vested in the province and that the sales were ultra vires. The appellant sued for transfer. The High Court dismissed the main claim, holding that the province lacked authority to sell because the properties did not vest in it. The appellant appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The High Court’s order was set aside and replaced with an order directing the first respondent to sign all documents and take all steps necessary to effect transfer of Erf 302 and Erf 537 Moreletapark to the appellant, subject to provision of a replacement bank guarantee if required. Failing compliance, the Sheriff was authorised to sign on behalf of the respondent, and the Registrar of Deeds was directed to make the necessary endorsements. The first respondent was ordered to pay the appellant’s costs.

The case is significant for reaffirming foundational principles of South African contract law, particularly that a sale by a non-owner is valid and enforceable. It underscores the central role of pleadings in defining the issues in litigation and limits courts from deciding cases on unpleaded grounds. The judgment also reinforces administrative-law principles that administrative acts, including Item 28(1) certificates, have legal effect until set aside by judicial review, strengthening legal certainty in state land transactions.