Legal Articles

In South African law, there are several contracts that must be entered into verbally or in the form of a written contract.

It remains the choice of the parties, their requirements and what is convenient for them on whether to conclude their agreement in writing or orally.

In some cases, costs play a role in deciding wherther it is a verbal or written contract. Attorneys in South Africa charge a fee to draft and facilitate the execution of a contract between the parties and therefore the option of a verbal agreement might seem more appealing at the time.

Contracts usually confer obligations on the parties concerned and, depending on the object of such contract, these obligations may sometimes be substantial financially or in some other way.

At the end of the day, one will soon realize that the cost of having an attorney assist you is far more beneficial when compared to the potential loss you might suffer in the event that your interests are not legally secure in that particular contract.

Alienation of Land Act 68 of 1981

In recognition of the above, the legislature promulgated the Alienation of Land Act 68 of 1981 which provides in Section 2 (1) that no alienation of immovable property will be valid unless,

1. The deed of alienation (Offer to Purchase) is in writing;
2. Signed by the parties;
3. If signed by their agents, the agents must have written authority.

This is understandable because immovable property sales are usually high value transactions worth the most protection from malpractice, uncertainty and petty disputes. Therefore, a contract to alienate immovable property is an exception to contracts being executed either verbally or in writing. It always must be in writing.

General Law Amendment Act, 50 of 1956

The second agreement which the law prescribes must be in writing is the one of Suretyship. The General Law Amendment Act, 50 of 1956 (as amended) provides in Section 6 that:

• No contract of suretyship entered into after the commencement of this Act, shall be valid, unless the terms thereof are embodied in a written document signed by or on behalf of the surety.

It goes without saying that suretyship agreements place onerous obligations on one party to cover for the potential inability of another party to fulfill their obligations. As such public policy demands that such a contract be in writing so that there is certainty, fraud prevented and disputes easily dealt with.

Van Deventer & Van Deventer Inc. - Your Contract Attorneys in South Africa

We assist with a wide array of contracts from Commercial Contracts, Lease Agreements as well as Offers to Purchase amongst others. Our Litigation Department is manned by lawyers who have extensive experience in Contract Law.  

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