The South African Supreme Court of Appeal has again reminded us that it is not a requirement for a valid contract of sale that the seller must be the owner of the thing sold.
Although the parties to a contract of sale usually contemplate the transfer of ownership, this is not an essential feature of the contract. The delivery requires the seller to deliver undisturbed possession coupled with a guarantee against eviction by any third party. If you want to pass ownership the sale agreement should say so if there is any doubt.
In this matter the appellant was struggling to get transfer of a property from the government which the government claimed had been erroneously sold because the government department who sold it was not the owner. Despite this submission, the court ordered the transfer of the property to the appellant purchaser.
The case is Van Wyk v The MEC: Department of Local Government and Housing Gauteng.
