Cooper N O and Another v Curro Heights Properties (Pty) Ltd

The appellants were joint liquidators of Nomic 151 (Pty) Ltd (in liquidation). They concluded a written agreement on 14 November 2016 to sell several erven in Mossel Bay, including a ring road erf (erf 19565), to the respondent, Curro Heights Properties (Pty) Ltd, for R4.5 million plus VAT. The agreement incorrectly described the ring road’s erf number, although both parties initially intended to deal with erf 19565. After delays in payment and transfer, an addendum was signed on 18 April 2017 extending the transfer date. During preparation for transfer, it emerged that erf 19565 extended into a neighbouring development (Nurture Park). Curro then contended that it never intended to purchase that portion and proposed subdivision of the ring road. No written and signed addendum dealing with subdivision was concluded. After prolonged delays and failed negotiations, the liquidators cancelled the agreement and sought declaratory relief that the sale was void for lack of consensus on the merx and for non-compliance with s 2(1) of the Alienation of Land Act 68 of 1981. The High Court dismissed the application, and the liquidators appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The High Court order was set aside and replaced with an order declaring the sale agreement of 14 November 2016 and the addendum of 18 April 2017 void ab initio for non-compliance with section 2(1) of the Alienation of Land Act and for want of consensus on the merx. The respondent was ordered to pay the applicants’ costs.

The case clarifies and reinforces the strict application of section 2(1) of the Alienation of Land Act, confirming that all material terms of a land sale—including subdivision where it affects parties’ rights and obligations—must be reduced to writing and signed. It also underscores that lack of consensus on the merx renders a contract of sale void ab initio and that rectification cannot be used to create consensus where none existed. The judgment is significant for conveyancing practice, liquidation sales, and disputes involving informal or incomplete arrangements relating to land.