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[2016] ZASCA 45
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Geldenhuys NO and Others v Daniels (20848/2014) [2016] ZASCA 45 (31 March 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
No: 20848/2014
In
the matter between:
HANNES
GELDENHUYS NO
FIRST APPELLANT
HENDRIK
SNYMAN OOSTHUIZEN NO
SECOND APPELLANT
ABEL
HERMAN GERHARDUS NELL NO
THIRD APPELLANT
and
SUSAN
ROMAO-DUARTE DANIELS
RESPONDENT
Neutral
citation:
Geldenhuys
NO v Daniels
(20848/14)
[2016] ZASCA 45
(31 March 2016)
Coram:
Ponnan, Wallis,
Petse and Dambuza JJA and Tsoka AJA
Heard:
11 March 2016
Delivered:
31 March 2016
Summary
:
Contract – offer to purchase immovable property irrevocable up
to a stated date – effect of date passing – offer
not
lapsing but becoming revocable – acceptance of offer after
stated date effective to constitute a binding contract.
ORDER
On
appeal from
:
KwaZulu-Natal Local Division of the High Court, Durban (Gyanda J
sitting as court of first instance).
The
appeal is dismissed with costs.
JUDGMENT
Tsoka
AJA (Ponnan, Wallis, Petse and Dambuza JJA concurring)
[1]
This is an appeal brought with the leave of the court a quo, against
the judgment and order of the KwaZulu-Natal Local Division,
Durban,
(Gyanda J) in favour of Ms Susan Romao-Duarte Daniels, the
respondent, for the payment of damages in the sum of R328 835
together with interest and costs. Her claim arose from the
cancellation of an agreement of sale of an immovable property. The
three appellants are the joint trustees for the time being of the
Hannes Geldenhuys Trust (the Trust)
[2]
The facts giving rise to the dispute are uncomplicated and, in the
main, common cause. In fact, it is surprising that the parties
did
not agree on a stated case for this court in terms of Rule 8(8)(
a
)
instead of burdening us with unnecessary documents, which we were
told had to be read.
[3]
Briefly, the facts are the following. On 11 January 2008, the Trust,
which was represented by the first appellant, Mr Hannes
Geldenhuys,
made a written offer to purchase the property from Ms Daniels for
R1570 000. The important clause of the agreement
is Clause 15 which
reads –
‘
15.
Offer lapses –
This
offer is irrevocable until 24h00 on 18 January 2008 and is binding
upon acceptance at any time prior hereto [which should read
prior
thereto], irrespective of notification of acceptance to the
purchaser.’
Ms
Daniels accepted the offer on 29 January 2008 by signing it and
notifying the Trust of her acceptance.
[4]
Subsequent to the acceptance, the Trust took occupation of the
property; paid occupational rental; commenced major structural
renovations; signed the transfer documents and paid the
pro
forma
bill of the
transfer costs. When the transferring attorneys sought to obtain
rates clearance certificate, they learnt that there
were problems
with the building plans of the property, as a braai area constructed
thereon was built 300 millimetres over the building
line.
[5]
Inevitably, the problem with the braai area had to be attended to
before the clearance certificate could be issued. Without
any delay,
Ms Daniels instructed an architect to seek a relaxation of the
building line from the municipality so that the clearance
certificate
could be issued. In August 2008 the municipality informed Ms Daniels
that the relaxation sought would take a period
of about two months.
By then, the Trust had lost enthusiasm and interest to proceed with
the transfer of the property. It repudiated
the agreement. Ms Daniels
accepted the repudiation and instituted an action for damages
representing the difference between the
purchase price at which the
property was sold to a third party and that which the Trust had
agreed to pay.
[6]
The court a quo held that the irrevocable offer having not been
accepted by midnight on 18 January 2008 as stipulated, became
a
revocable one. And, as the Trust had not revoked the offer before 29
January 2008 when Ms Daniels accepted it, which acceptance
was
communicated to the Trust, that resulted in a binding agreement.
[7]
The Trust defended the action on the ground that the offer had lapsed
as it was not accepted by midnight on 18 January 2008.
It thus
contended that when Ms Daniels accepted the offer on 29 January 2008,
she had made a counter-offer to the Trust which was
not accepted.
Accordingly, no binding agreement was concluded. The sole issue for
determination is thus whether the acceptance
of the offer by Ms
Daniels on 29 January 2008 resulted in a binding agreement.
[8]
A plain reading of the clause 15,
[1]
in my view, conveys no other meaning than that the offer made by the
Trust on 11 January 2008 was irrevocable until midnight on
18 January
2008. If she accepted it before that time, even though she did
not notify the Trust of her acceptance, that would
result in a
binding agreement.
[9]
When Ms Daniels had not accepted the offer by that time, the
irrevocable offer became a revocable one which the Trust was entitled
to revoke at any time before 29 January 2008. Clause 15 did not say
what would happen if the offer was not accepted by midnight
on 18
January 2008. Many such clauses provide that the offer will in that
event lapse, but there is no such provision in clause
15. The result
is simply that the irrevocable character of the offer fell away and
it became revocable. But until revoked, it remained
open for
acceptance. And since the Trust did not revoke the offer, when Ms
Daniels accepted it on 29 January 2008, it was still
capable of being
accepted. There is no suggestion that the period of 18 days from the
date of the offer to the date of acceptance,
was unreasonable. In my
view, the acceptance gave rise to a binding agreement between the
parties.
[10]
The appellants’ reliance on the heading of clause 15 which
reads: ‘offer lapses’, hardly assist them. Properly
construed, clause 15 reveals merely that the offer was irrevocable
until 24h00 on 18 January 2008. The clause says nothing about
the
offer lapsing if not accepted by that time and that result cannot be
inferred from the heading. So, an acceptance after that
date would
result in a binding agreement between the parties, provided the offer
had not been revoked prior to the acceptance.
[11]
It is apt to reiterate the observation made by this court in
Sentinel
Mining Industry Retirement Fund & another v Waz Props (Pty) Ltd &
another
[2]
that:
‘
It
seems to me common sense that where a heading conflicts with the body
of the contract, it must be the body of the contract which
prevails
because the parties’ intention is more likely to appear from
the provisions they have spelt out than from an abbreviation
they
have chosen to identify the effect of those provisions; but that
where the heading and the detailed provisions can be read
together
that should be done’.
[12]
In the instant case, the heading conflicts with the contents of
clause 15 of the agreement. The heading and body of the clause
are
irreconcilable. The body must accordingly prevail over the
heading.
[3]
[13]
In the result the following order is made:
The
appeal is dismissed with costs.
____________
M
Tsoka
Acting
Judge of Appeal
APPEARANCES:
For
Appellant:
A Liversage
Instructed
by:
Prinsloo
Bekker Attorneys, Durban
Symington
& De Kok, Bloemfontein
For
Respondent:
A Camp
Instructed
by:
Jooste
& Co Attorneys, Johannesburg
Bezuidenhouts
Inc., Bloemfontein
[1]
Natal Joint Municipal
Pension Fund v Endumeni Municipality
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA) para 18.
[2]
Sentinel Mining Industry
Retirement Fund & another v Waz Props (Pty) Ltd & another
[2012] ZASCA 124
; 2013 (3) SA (SCA) para 10.
[3]
C/f
Manna v Lotter & another
2007
(4) SA 315
(C).