Botha and Another v Rich NO and Others

The first applicant, Ms Lorraine Sophie Botha, concluded an instalment sale agreement with the JJW Hendriks Trust in November 2003 for the purchase of immovable property (Erf 4128, De Aar) for R240 000, payable in monthly instalments. Ms Botha took occupation and paid instalments amounting to more than 50% of the purchase price by October 2007. She defaulted on two instalments thereafter. Despite having paid more than half the price, the Trust sought to cancel the agreement, enforce a forfeiture clause, and evict the applicants. In May 2008 Ms Botha formally demanded transfer of the property in terms of section 27(1) of the Alienation of Land Act 68 of 1981, tendering registration of a mortgage bond for the balance. The Trust refused and later purported to cancel the contract. The High Court and Full Court upheld the cancellation and eviction, prompting an appeal to the Constitutional Court.

The appeal was upheld. The orders of the High Court and Full Court were set aside. The trustees were ordered to sign all documents necessary to transfer the property to Ms Botha, against simultaneous payment of arrears in municipal charges and registration of a first mortgage bond securing the balance of the purchase price. The trustees were ordered to pay the applicants’ costs in all courts.

This case is a leading authority on the interpretation of section 27 of the Alienation of Land Act. It affirms strong statutory and constitutional protection for purchasers under instalment sale agreements, limits sellers’ ability to cancel contracts after substantial performance, and reinforces fairness and proportionality in contract enforcement. It clarifies that section 27(1) creates an enforceable right to transfer, not merely a trigger for cancellation.