Your Non-Variation Clause Should Also Stipulate That Any Amendments To The Main Agreement Cannot Be Validly Made By SMS, Email And WhatsApp.
The law still requires all offers to purchase/sale agreements to be physically signed in “wet ink”; meaning manually signed in liquid ink from a pen.
Unlike WhatsApp, SMS messages and emails, which can be used to create valid and binding agreements, the law is much more stringent, when it comes to contracts for the sale of immovable property.
The Alienation of Land Act provides that: “No alienation of land shall be of any force and effect unless it is contained in a deed of alienation signed by the parties thereto….”
Accordingly, we still cannot buy and sell property by texting SMS’s, WhatsApps and emails.
The march of technology has created wonderfully quick and convenient messaging by email, SMS and WhatsApp.
So, despite the fact that all agreements of sale for land are manually signed; one is tempted to use WhatsApp, out of sheer convenience, to finalise and agree occupation dates and negotiate repairs.
At the moment, we have a dispute brewing, because after having agreed an occupation date by WhatsApp, the seller has now changed his mind and is alleging that his prior commitment to that date with the purchaser was invalid, because agreements by WhatsApp are unlawful, when Immovable property is involved.
Remember that most agreements have a non-variation clause, which requires any amendment to be reduced to writing and signed by both parties.
The Ecowash Appeal Court Decision has recently determined that a WhatsApp amendment, can be used to lawfully change the main agreement, which was signed by both parties.
To eliminate any possible disputes, debates and uncertainty, we recommend that your Non-Variation Clause should also stipulate that any amendments to the main agreement, cannot be validly made by SMS, email and WhatsApp.
Denoon Sampson is the Director at Denoon Sampson Ndlovu Inc, currently ranked the ‘number 1’ top performing conveyancer by First National Bank Limited. He has 30 years of experience as a conveyancer, specialising in the full spectrum of property-related law and is often called upon to give talks or contribute content on related matters.