A verbal agreement is only perfect until someone remembers it differently. That may sound cynical, but after more than two and a half decades in legal practice, I can assure you it is remarkably accurate. Most property disputes do not start because people are dishonest. They start because people have different recollections of what was said, what was promised and what was agreed. Memory has a way of changing over time, particularly when money, deadlines and emotions enter the equation.
I was reminded of this recently while following a court challenge that has reignited debate around one of the cornerstones of South African property law – the requirement that agreements for the sale of immovable property must be in writing. The constitutional arguments will ultimately be decided by the courts. However, the debate raises a practical question for every buyer and seller: what happens when certainty disappears?
Section 2(1) of the Alienation of Land Act 68 of 1981 is very clear. It provides that the sale of land is only valid and enforceable if it is recorded in a written deed of alienation and signed by the parties, or by agents acting under written authority. In simple terms, if you are buying or selling property, a verbal agreement was, until this court decision, not enough.
To some, the writing requirement may seem like an outdated technicality. To others, particularly those who have watched a seemingly straightforward property deal unravel because of an alleged verbal agreement made during a round of golf or over a braai, it is anything but. For buyers and sellers who have experienced the cost and frustration of disputed terms, it remains one of the most valuable safeguards in property law.
Property transactions are not like buying a cup of coffee or even a motor vehicle. They involve substantial financial commitments, long-term obligations and, quite often, strong emotions. For many people, a property is the biggest investment they will ever make.
That is precisely why the Alienation of Land Act requires agreements for the sale of land to be captured in writing and signed. The purpose was never to create bureaucracy. It was to reduce fraud, avoid misunderstandings and create a reliable record of the terms the parties actually agreed.
The details matter: who is buying, who is selling, transfer dates, occupational arrangements, the purchase price, payment terms, suspensive conditions, disclosures, warranties and what happens if one party breaches the agreement. These are often the very issues that end up before a court when a transaction starts to unravel.
One of the reasons written agreements exist is that memory is remarkably unreliable when money, deadlines and emotions become involved. A conversation that seemed perfectly clear at the time can look very different months later when a dispute arises. Buyers and sellers may genuinely remember events differently. Estate agents may have their own understanding of what was agreed. Without a written record, courts are often left trying to reconstruct conversations long after the fact. It remains unclear how a bank would grant a mortgage bond in these circumstances.
That is exactly what the writing requirement is designed to prevent. Property transactions are built on certainty, not recollection.
Modern technology has also complicated the discussion. Deals are increasingly negotiated through WhatsApp messages, emails and voice notes long before formal documents are signed. In some circumstances, electronic communications can create legally binding obligations. A chain of WhatsApp messages may show an intention to transact, but it does not automatically satisfy the statutory requirements for a valid property sale.
One of the hidden costs of uncertainty is that disputes become harder and slower to resolve. A properly drafted agreement often allows disputes to be dealt with quickly because the document speaks for itself. Without it, courts are left to sift through conflicting versions, witness testimony and disputed recollections.
Whether the current legal challenge succeeds or fails, my advice remains unchanged. Do not rely on verbal agreements when buying or selling property, or anything else for that matter. Do not assume that a handshake, voice note or WhatsApp exchange offers the same protection as a properly drafted sale agreement. And do not assume that because everyone is getting along today, they will still agree on the details tomorrow.
A written agreement is not red tape. It is an investment in certainty and, very often, the difference between a successful transaction and an expensive dispute.
If it’s worth buying, it’s worth documenting. When it comes to property transactions, clarity today can prevent conflict tomorrow. And should a dispute arise, a properly drafted agreement provides a roadmap for resolving it efficiently, rather than leaving the parties to navigate an overburdened court system armed only with competing memories.
Your future self will thank you for it.