Lombaard v Droprop CC

Jan Antonie Lombaard (the appellant) entered into a lease agreement with Droprop CC (the first respondent) and its members in respect of Portion 526 (of 432) of the Farm Melk Houte Kraal No 789. The lease included an option to purchase exercisable within five years. In November 2007, Lombaard exercised the option and sought to compel transfer of the property. Droprop resisted, raising defences including: (1) non-compliance with the Alienation of Land Act 68 of 1981, specifically that the property description was inadequate; (2) that the lease and sale agreement related only to a portion of the property, not the entire property, and that other tenants occupied other portions during the lease period; and (3) that one of the signatories lacked authority. The High Court dismissed Lombaard's application, finding the property description insufficient under section 2(1) of the Alienation of Land Act and that the agreement was invalid. Lombaard appealed to the Supreme Court of Appeal.

• Whether the description of the immovable property in the lease agreement and subsequent sale agreement was sufficient and adequate in terms of section 2(1) of the Alienation of Land Act 68 of 1981
• Whether the court can exercise its discretion to refer a dispute of fact to oral evidence when such point was not canvassed or considered by the court a quo, nor raised by the legal representatives
• Whether the respondents had raised a valid defence of rectification based on the true intention of the parties
• Whether the application of the Plascon-Evans rule required dismissal of the application in circumstances where the appellant failed to engage with detailed factual allegations

The appeal was dismissed with costs by a 3-2 majority. The majority (Navsa, Malan and Mhlantla JJA) upheld the High Court's dismissal of the application, though on different grounds (application of the Plascon-Evans rule rather than invalidity of the property description). The minority (Heher and Shongwe JJA) would have upheld the appeal and referred the matter for oral evidence on the rectification issue.

The binding legal principles established are: (1) A property description in a contract of sale that corresponds substantially with the title deed description, even if prefixed with the word 'certain', is sufficiently certain to comply with section 2(1) of the Alienation of Land Act 68 of 1981; (2) The word 'certain' in its primary meaning denotes something definite, prescribed, determined, fixed or settled, not something uncertain; (3) Where a respondent in motion proceedings raises a defence of rectification by pleading detailed facts showing the written agreement does not reflect the true intention of the parties, the applicant must seriously and unambiguously engage with those allegations; (4) Under the Plascon-Evans rule, where an applicant for final relief on motion fails to engage with material factual allegations that are not far-fetched or clearly untenable, and where the probabilities favour the respondent, the application must fail; (5) A party who deliberately chooses not to respond to factual allegations or to seek a referral to oral evidence does so at their peril; (6) An appellate court will generally not exercise discretion to refer a matter to oral evidence where such relief was not sought in the court below, particularly where the applicant's failure resulted from a deliberate tactical choice based on legal advice.

Several obiter observations were made: (1) The majority noted that it remains open to the appellant to proceed by trial action should he so wish; (2) Navsa and Malan JJA observed that omission of the extent of property in a description does not affect validity of the agreement; (3) The dissenting judges (Heher and Shongwe JJA) observed that there is no rule of law requiring a person threatened with litigation to reveal beforehand such defences as may be available; (4) The dissent noted that the overriding consideration in exercising discretion to refer to evidence is ensuring a just and expeditious decision; (5) Heher JA commented that the respondents' pre-litigation conduct justified a strong inference that they had failed to instruct their attorney about the alleged misdescription; (6) Mhlantla JA, in concurring with the majority, emphasized that the rule requiring applications for referral to evidence to be made at the outset is salutary and should only be departed from in exceptional cases; (7) The court observed that a litigant commits himself to the contents of his affidavit when he signs it and will only in exceptional circumstances be permitted to disavow them.

This case is significant in South African law for several reasons: (1) It clarifies that the word 'certain' prefixing a property description does not render the description uncertain or invalid for purposes of the Alienation of Land Act; (2) It illustrates the strict application of the Plascon-Evans rule in motion proceedings where an applicant fails to engage with material factual allegations; (3) It emphasizes the duty of legal advisers to properly engage with all defences raised in answering affidavits, not just technical defences; (4) It confirms that a defendant may raise rectification as a defence without formally counterclaiming for rectification, provided sufficient facts are pleaded; (5) It demonstrates the limited circumstances in which an appellate court will exercise discretion to refer a matter to oral evidence when such relief was not sought in the court below; (6) The case provides important guidance on when courts will depart from the general rule that applications for referral to oral evidence must be made at the outset, not after argument on the merits.