A couple, who purchased a property without a boundary wall, wants to know if the previous owner can be forced to erect one if he has verbally agreed to do so.
Nothing has come of his promise and they are now building the wall themselves, but want to know whether they have any recourse.

Lucille Geldenhuys
Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch says in order to comply with the provisions of section 2(1) of the Alienation of Land Act 68 of 1981, the whole contract of sale of land, or at any rate all the material terms thereof, must be in writing and signed by the parties.
“The material terms are not confined to those prescribing essential terms such as the parties, the property description and purchase price, but include all other material terms.”
Geldenhuys says it is not easy to define what constitutes a material term, but what has emerged from South African case law is that a material term is not necessarily one of the essentials of a contract of sale.
“If the boundary wall was a material term of the contract between the reader and the seller, the contract would not comply with the terms of the Alienation of Land Act, and as such would be of no force and effect.”
However, says Geldenhuys, it is most likely the case that the obligation to build the wall was not material to such an extent that it could affect the validity of the contract. “If one assumes that the contract is valid, the next step would be to examine its contents.”
If the contract includes a term stating that it is the whole agreement between the parties, the reader would not be able to hold the seller to his promise, according to Geldenhuys.

Schalk van der Merwe
Schalk van der Merwe from Rawson Properties Helderberg says it may be that the seller undertook to build the wall after the contract was signed, and the parties accordingly varied the contract by adding this additional obligation on the seller.
“The general rule is that parties to a contract are free to vary their contract as they deem fit, but this is subject to certain limitations.”
Similarly, says Van der Merwe, the parties may impose restrictions of subsequent variations by incorporating a non-variation clause. “This may be done with the object of achieving certainty and avoiding disputes about whether a variation has been agreed upon.”
Van der Merwe says a non-variation clause would typically state that no variation will be enforceable unless in writing and signed by both parties. “If the reader’s contract contains such a clause, the reader will not be able to depend on the subsequent verbal variation as agreed upon in the contract and as is required by the act.”
The possibility exists that the seller made a separate verbal contract with the reader after the conclusion of the contract, says Van der Merwe.
“Such a verbal contract may fall outside the ambit of the contract for the property, and may be enforceable, and the reader may consider obtaining legal advice if such a possibility exists.”
Van der Merwe says if one excludes the above possibility, the seller appears to have merely made a verbal promise and the reader will not be able to hold him to it as it is not part of their written contract.
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