About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2014
>>
[2014] ZAGPJHC 293
|
|
Stieler Properties CC v Shaik Prop Holdings (Pty) Limited and Another (34437/2013) [2014] ZAGPJHC 293; [2015] 1 All SA 513 (GJ) (1 October 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE SOUTH GAUTENG HIGH COURT
(LOCAL DIVISION
JOHANNESBURG)
CASE
NO: 34437/2013
DATE:
01 OCTOBER 2014
In
the matter between
STIELER
PROPERTIES CC
REGISTRATION
NUMBER
2003/014057/23
.....................................................
APPLICANT
And
SHAIK PROP
HOLDINGS (PTY) LIMITED
REGISTRATION
NUMBER: 2001/028696/07
.....................................
FIRST
RESPONDENT
OBIFON (PTY)
LIMITED
REGISTRATION
NUMBER: 2010/019027/07
.................................
SECOND
RESPONDENT
J
U D G M E N T
Sale:
Immovable property - Merx in
existence and identifiable at time of sale – Contract silent on
date for transfer – Purchaser
granted vacant possession pending
registration of transfer – Relevant factors for the Court in
determining reasonable period
for registration of transfer.
Contract
:
Void and voidable contracts – Impossibility of performance –
Mora debitoris - Mora ex persona – Factors causing
delay in
registering transfer will be taken into account in determining
reasonable period for registration of transfer if known
to the
parties or foreseeable.- Whether contract validly cancelled –
Contractual terms
– Lex commissoria – Rescission rather than specific
performance or damages is the more radical remedy – Rescission
to be granted where the breach is so serious that it is fair to allow
the innocent party to rescind the contract and undo
all its
consequences.
Arbitration:
Arbitration agreement – Effect –
Court proceedings – Mere existence of arbitration agreement not
meaning that
court proceedings incompetent – If court
proceedings instituted despite existence of arbitration agreement,
other party may
either (i) apply for stay of proceedings under
Arbitration Act or (ii) raise special (dilatory) plea for stay of
proceedings –
Neither party to an arbitration contract may
terminate the contract without the consent of the other parties to
the contract –
A party resisting referral of the dispute to
arbitration carries a heay onus of showing why the matter should not
be referred to
arbitration - Court’s discretion to refuse
arbitration is to be exercised judicially, and only when a very
strong case has
been made out -
Arbitration Act 43 of 1965
MOSIKATSANA
AJ:
Introduction
[1]
This is an application for a declaration, that a contract for the
purchase and sale of immovable property (contract) is
void ab
initio
, in that the property (
merx
) was not in existence,
at the time the contract was entered into.
[2]
Alternatively, that if it is found that the contract was not void,
that it was validly cancelled, due to impossibility of performance.
Factual
Background
[3]
Applicant (purchaser), purchased immovable property, described as
“
Section 1
Erf 1282 Parkrand Ext 3 situated at 7A Crystal
Crescent, Golden Crest Country Estate, Parkrand Ext 3’ (the
property), from
first respondent (seller), for the price of R
3 040 000.00 plus R160 000.00 agent’s
fees, totalling
R3 200 000.00.
[4]
The sale of the property was concluded on 18
th
March 2013.
Second respondent (agent), acted as first respondent’s estate
agent, in negotiating the sale.
[5]
On 24 April, 2013 applicant (purchaser), enquired from the
conveyancing attorneys, when first respondent (seller), would
transfer
the property to it as purchaser.
[6]
On 25
th
April, 2013 the conveyancing attorney replied to
applicant’s (purchaser’s) email, by stating that,
transfer usually
takes about three weeks, and that after that period,
they will be in a position, to prepare conveyancing documents.
[7]The
conveyancer, also informed applicant (purchaser), that first
respondent (seller), had indicated that it is prepared to lease
the
property, to applicant (purchaser), for R15 000.00 per month
excluding levies, electricity and water charges pending transfer.
[8]
Alternatively, that if applicant (purchaser), gives instructions for
the full purchase price to be deposited into the account
of first
respondent (seller), it could take possession, in which case,
it would only be liable for levies, electricity and
water charges.
[9]
Pursuant to the above negotiations, the full purchase price was paid
into first respondent’s (seller’s) account.
Applicant
(purchaser), was given right of possession, to the property.
[10]
On 3 May, 2013 an addendum to the contract was completed, in which
the property, was described differently from the contract
as:
‘
Portion
Erf 1282 Parkrand Ext 3, Registration Division I.R, the province of
Gauteng, in extent… square metres’.
[1]
[11]
Despite the fact that the purchase price had been paid in full two
months earlier, transfer had still not been processed. On
5 June,
2013 a representative of the applicant (purchaser), sent an email to
first respondent’s (seller’s) representative
enquiring
when transfer would be completed.
[12]
On 5 June, 2013 first respondent’s (seller’s)
representative, replied as follows to applicant’s (purchaser’s)
email of 5 June, 2013:
‘
Transfer
is not in my hands. The following has to happen before my attorneys
can transfer the property:
1.
Obtain Council rates clearance from
council.
2.
Obtain Home owners’ consent,
3.
Pay transfer duty to SARS.
4.
You to pay the attorneys (sic) account and
transfer duty.
We
are awaiting homeowner’s (sic) consent before we can apply for
other council requirements.’
[13]
On 10 June, 2013 applicant’s (purchaser’s) attorneys,
sent a letter to the conveyancing attorneys, demanding that
they
attend to the opening of the sectional title register and transfer of
the property, and that applicant (purchaser), be provided
with copies
of the approved sectional title plans and transfer documents, for
signing within five days of receipt of the letter,
to avoid further
legal action. A copy of a letter of demand addressed to the first
respondent (seller) was enclosed.
[14]
Against the background that the requested transfer documents had
still not been received by applicant (purchaser), on 28 June,
2013 a
further letter requesting transmission of transfer documents to
applicant (purchaser), was sent to the conveyancing attorneys.
[15]
On 5 July, 2013 the conveyancing attorneys, acting with instruction
from first respondent (seller), replied in a letter stating
that the
delay in completing transfer, was caused by the Golden Crest Home
Owners’ Association (GCHOA), which according to
Condition 4 of
the title deed, first has to approve subdivision. And, that the GCHOA
declined to give consent to sectionalisation,
but would permit first
respondent (seller), to sub divide. It was further stated in the
letter, that first respondent (seller),
had commenced with the
process of sub division, which is costlier to respondent (seller),
and more beneficial to applicant (purchaser).
[16]
Pending finalization of transfer, first respondent (seller), proposed
and advised that:
‘
...
[T]he entire property be transferred into the Purchaser’s name
provided that there is a bond registered in favour of the
seller for
R 1 500 000.00. Upon the property being subdivided the bond will be
cancelled and both the purchasers will have separate
title deeds. Our
client further advises that he has a prospective purchaser for the
second unit in the amount of R1 500 000.00’
[17]
It was further indicated that all costs related to the above
proposal, would be borne by first respondent (seller), and that
applicant (purchaser), would bear the transfer costs, after the
property has been subdivided.
[18]
It was further stated, in paragraph 6 of the letter, that applicant
(purchaser), would not be prejudiced, by first respondent’s
(seller’s) proposal, since it is in occupation of the property
without payment of occupational rent, except for utilities.
[19]
On 7 August, 2013 applicant’s (purchaser’s) attorneys,
wrote a letter to the conveyancing attorneys, who were acting
on
instruction from first respondent (seller), notifying them that
applicant (purchaser), has been informed that first respondent
(seller), was unable to effect transfer of the property, to applicant
(purchaser), and that first respondent’s (seller’s)
conduct constituted:
‘
[A]
breach of the contract, which we hereby call upon you to remedy
within 5 (five) days of delivery of this notice, failing
which our
client will cancel the contract and claim repayment of the purchase
paid, without prejudice to any other claim which
our client may have
arising out of your aforesaid breach.’
[20]
It appears from my reading of a letter dated 16 August, 2013 from the
conveyancers, to applicant (purchaser), that there were
further
negotiations, between the parties, in which applicant (purchaser),
had offered to purchase the second unit, priced
at R 1 500,
000.00, at a reduced price of R 800, 000.00. The offer was rejected
by the conveyancers, on behalf of first respondent
(seller), in
correspondence dated 16 August, 2013 and 26 August, 2013
respectively. First respondent (seller), was only prepared,
to accept
an offer, of R 1 200,000.00 from applicant (purchaser), for the
second unit. Eventually, negotiations broke down, leading
to this
application.
Applicant’s
(Purchaser’s) Case:
[21]
Flowing from the above facts, it is applicant’s (purchaser’s),
contention that:
21.1
The contract was
void ab initio
based on:
21.1.1
The non-existence of the
merx
; or
21.1.2
first respondent’s (seller’s) impossibility of
performance, occasioned by inability to sectionalize and effect
transfer;
21.2
Alternatively, that if it is found that the contract was not
void
ab initio
, that it was validly
cancelled.
[22]
Applicant (purchaser), prayed for the following relief:
22.1
A declaration that the contract entered into between the parties is
void ab initio
;
22.2
alternatively,that the contract entered into between the parties on
18
th
March, 2013 has been validly cancelled by applicant
(purchaser);
22.3
that first respondent (seller) be ordered to pay applicant
(purchaser), the amount of R3 200 000, 00 together with interest
at
the rate of 15.5% per annum with effect from1st June, 2013 to date of
payment;
22.4
alternative to paragraph 22.3 above:
22.4.1
That first respondent (seller), be ordered to pay applicant
(purchaser), the amount of R3 040 000,00 together with interest
thereon at the rate of 15, 5% per annum with effect from the 1
st
June, 2013 to date of payment;
22.4.2
second respondent (agent), is ordered to pay applicant (purchaser)
the sum of R 160 000, 00 together with interest thereon
at the rate
of 15.5% per annum with effect from the 1
st
June, 2013 to
date of payment.
22.5
Plus costs of bringing the application.
First
Respondent’s (Seller’s) case:
[23] First
respondent (seller), raised a special plea that the current dispute
be stayed in this Court, so that it can be referred
to an arbitrator
in term of clause 16.1 of the contract, which states that:
’
16.1
If any dispute arises between the parties... such dispute will be
resolved by way of arbitration before a single arbitrator,
appointed
in terms of the provisions of this clause. Either party/ies ... shall
be entitled to notify the other party of its intention
to refer such
dispute to arbitration.’
[24]
In the event that a stay of proceedings is not granted, first
respondent (seller), contends that at the time the contract was
entered into, the
merx
, did exist. Accordingly, first
respondent (seller), denies that the contract is
void ab initio
for reasons alleged by applicant (purchaser).
[25]
First respondent (seller) contends that it is not a requirement for
the validity of a contract for the sale of land, that transfer
take
place on the date of sale, and that the inability to effect transfer
on the date of sale, does not constitute impossibility
of
performance. The contract, is silent on the date of transfer.
[26]
First respondent (seller), further contends that the applicant
(purchaser), was at all material times, aware that first respondent
(seller), would first have to obtain the consent, of the GCHOA to
sectionalize. According to first respondent (seller), the delay
in
obtaining such consent, does not constitute impossibility of
performance. First respondent (seller) argues that until such time
as
there is no reasonable prospect of transfer taking place, it cannot
be said that performance has become impossible.
[27]
First respondent (seller), deposed to the fact that negotiations
between itself and the GCHOA, are still underway and that
it is
foreseeable, that the requisite permission will be granted.
Accordingly, first respondent (seller), insists that applicant
(purchaser), has not given it reasonable time, in which to effect
transfer.
[28]
First respondent (seller), argues that according to clause 7
(
voetstoots
clause) of the contract, the purchaser
(applicant), acknowledged that the property is sold with all the
conditions of title, including
the condition contained in clause 4 of
the title deed, which states that:
‘
4.
The erf may not be transferred without prior consent of the
GOLDEN
CREST COUNTRY ESTATE HOMEOWNERS ASSOCIATION.’
[29]
First respondent (seller), argues that by purchasing the property
subject to the above condition, applicant (purchaser), foresaw
the
possibility of delays in effecting transfer, and reconciled itself to
the possible delay.
[30]
First respondent (seller), also argues that applicant, has not
suffered real prejudice, in that it has vacant possession of
the
property, and enjoys all the benefits akin to ownership.
[31]
First respondent (seller), further argues, that the contract was not
validly cancelled by applicant (purchaser), in that it
did not offer
restitution, of the part performance, made by the first respondent
(seller).
[32]
In the circumstance, first respondent (seller), contends that
applicant (purchaser), brought this application prematurely,
and is
therefore, not entitled to the relief sought.
[33]
Accordingly first respondent prays for:
[33.1]
Stay of proceedings so that the dispute may be resolved by means of
arbitration as provided for in clause 16 of the contract.
[33.2]
Costs of this application, to be determined by an arbitrator.
[33.3]
Alternative to [33.2] that the applicant (purchaser), is to pay the
costs of this application on an attorney and client scale.
[34]
As an alternative to the prayer contained in paragraph [33] above,
that the present application is dismissed with costs on
an attorney
and client scale against the applicant (purchaser).
[35]
Second respondent abides with the Court’s decision.
Issues to be
determined
[36]
The issues for determination in this application are:
36.1
Whether the contract was
void ab initio,
due to either
the non-existence of the
merx
, or first respondent’s
(seller’s) impossibility of performance; or
36.2
if it is found that the contract was valid, whether it was validly
cancelled by applicant (purchaser); and
36.3
whether, a stay of proceedings, pending referral to arbitration,
ought to be granted.
Voidness due to
non- existence of the merx
[37]
Applicant’s (purchaser’s) contention that the contract is
void due to non-existence of the
merx
is unavailing, as there
was in existence a valid contract whose terms were partly that:
37.1
Land bearing the legal description in the contract was the subject of
a contract of sale between the parties
[2]
;
37.2
such land, bearing the legal description in the contract, though
physically in existence, was still to be registered;
[3]
37.3
the time for registration of transfer was not made a material element
of the contract,
[4]
it being
agreed between the parties in clause 7.1.1 of the contract that the
merx
is sold
voetstoots,
subject to existing conditions of title.
37.4
According to condition 4 of the deed of transfer, one of the
conditions of title was that obtaining the consent of the GCHOA
is an
administrative detail that first had to be accomplished before the
merx
could be registered.
[38]
It is, therefore, unavailing for applicant (purchaser), to argue that
the
merx
was not in existence at the time the contract was concluded, because
the
merx
did physically exist and it continues to exist. It is for this reason
that applicant (purchaser), is in occupation and even sought
to
purchase the second unit at a reduced price of R800, 000.00. If the
merx
did not exist, applicant’s offer for the second unit would not
have been possible. What did not exist and this remains
so, is
a title deed bearing the legal description identified in the
contract.
[5]
However, the merx
was identifiable
[6]
.
Voidness due to
impossibility of performance
[39]
Applicant’s (purchaser’s) argument that the contract is
void ab initio
due to impossibility of performance, occasioned
by the delay in effecting registration of transfer, is not legally
sustainable.
According to Sharrock:
‘
The
fact that an obligation can no longer be performed on time does not,
as a rule, mean it is physically impossible of performance
in the
eyes of the law. The test in each case is whether the substance of
the obligation is still capable of being performed. If
it is, the
obligation is not impossible of performance.’
[7]
[40]The
alleged impossibility is supervening, relative (subjective) and not
absolute. It therefore, does not render the contract
void ab
initio
, but possibly voidable. First respondent (purchaser),
deposed that given enough time, it may successfully negotiate and
obtain
the GCHOA’s consent and effect transfer of the property
to applicant (purchaser).
[41]
Indeed, time is not made a material element of the contract. The
contract is silent on the time for transfer. In such instances,
where
the time for performance is not stipulated in the contract, but a
reasonable time within which performance should have taken
place has
elapsed, applicant’s (purchaser’s) right to resile from
the contract, is limited to only those failures to
perform, which go
to the root of the contract, such as where the failure amounts to
repudiation of the contract.
[8]
[42]
The delay in effecting registration of transfer, cannot be construed
as a repudiation of the contract by first respondent (seller),
in
that when it became apparent that there was delay in obtaining
consent of the GCHOA, on 5 July, 2013 first respondent proposed
that
the entire property be transferred into the purchaser’s
(applicant’s) name, provided that there is a bond registered
in
favour of the seller (first respondent) for R 1 500 000.00.
The bond would be cancelled when the property is subdivided
and both
purchasers would have separate titles.
[9]
Further, applicant (purchaser), was at all material times aware, that
registration of transfer was contingent upon first respondent
(seller), obtaining the GCHOA’s consent. The cause of the delay
in effecting transfer was known to the parties and it was
foreseeable. It therefore, cannot be said that the delay is
unreasonable.
[10]
First
respondent (seller) will escape liability on the basis of supervening
impossibility because he is not responsible for the
delay in
effecting transfer
[11]
and the
cause of the delay was known to applicant (purchaser).
[43]
First respondent (seller) has rendered part performance on material
aspects of the contract, in that it has afforded applicant
(purchaser) vacant possession, which allows the applicant
(purchaser), to enjoy
some
of the benefits akin to ownership.
Validity of
cancellation for breach
[44]
There is no automatic right of cancellation of a contract on the
basis of the debtor’s
mora
.
Cancellation is an extraordinary remedy. In
Sweet
v Ragerguhara NO and Others
[12]
it
was stated that where cancellation is claimed in motion proceedings
the applicant should state unequivocally in his founding
affidavit
that his cancellation is based on a material breach of the agreement
and he should thereafter fully outline the facts
on which he relies
for his assertion. It was further stated, that a notice of rescission
(
interpellatio
)
is of no legal consequence unless it relates to a failure to perform
a ‘vital’ or ‘important’ term of
the contract
timeously. However, the right to cancel will avail, where the
contract specifies, the date for performance and
the debtor fails to
perform (
mora
ex re
),
or where the contract, as in the present case, contains a
cancellation clause (
lex
commissoria),
or the creditor fixes a date for performance by making a demand
(
interpellatio
)
which gives the debtor a reasonable period
[13]
for performance, and the debtor fails to perform (
mora
ex persona
).
[45]
Clause 11 of the contract contains a
lex
commissoria
,
which gives an innocent party, the right of cancellation for breach,
on five days’ notice to the defaulting party.
Applicant
(purchaser), duly exercised its right of cancellation, by giving
first respondent (seller), notice to effect registration
of transfer,
within five days from the date of the notice, and that failure to
perform within the five day period, will constitute
breach leading to
cancellation.
[14]
[46]
Tritely, applicant (purchaser) rightly exercised its right to cancel,
stipulated in the
lex
commissoria
.
However, given the administrative hurdle faced by first respondent
(seller), in obtaining the GCHOA’s consent, five days’
notice, though specifically provided for in the
lex
commissoria,
may not have been a reasonable period, for first respondent (seller),
to effect registration of transfer to the applicant
(purchaser). I am
fortified in my view, by the fact that subsections 6(1)(q)
[15]
read with
s 6(4)
[16]
of the
Alienation
of Land Act
68 of 1981 set a limit of five years, from date of sale, for
registration of transfer. The applicant (purchaser), brought this
application six months after the date of sale, which in my judgment
did not allow first respondent sufficient time to seek and
obtain the
GCHOA’s consent.
[47]
It is manifest, that restitution is not part and parcel of the act of
rescission, but a consequence of it. … ‘[I]f,
having
rescinded, the innocent party fails to make restitution when he is
obliged to do so, his failure will invalidate his act
of
rescission.’
[17]
[48]
It is my view that in a case such as the present, where restitution
is practical, cancellation may not be complete or valid,
because the
applicant (purchaser) has not tendered restitution when it was due.
Applicant (purchaser) continues to enjoy vacant
possession of the
property during the alleged period of cancellation.
Enforceability of
the arbitration clause
[49]
The contract provides for arbitration in clause 16.
[18]
The current dispute falls within the scope of the arbitration clause.
Arbitration clauses are governed by the
Arbitration
Act
42
of 1965 (The Act).
[50]
When parties, exercising their contractual autonomy, make provision
as, in the present dispute, for the private resolution
of their
disputes, the Courts are enjoined to respect the parties’
choice of method for resolving their disputes.
[19]
The Courts’ deference, to the parties’ choice to
arbitrate their disputes, does not amount to an abdication of
jurisdiction.
Arbitration clauses do not oust the Courts’
jurisdiction.
[20]
Under the
Act,
[21]
the Courts retain the
powers to assist, supervise and intervene in the dispute and the
arbitration before, during and after the
arbitration.
[22]
[51]
Due to the binding nature of the arbitration clause, neither party to
this dispute, may, unilaterally initiate Court proceedings.
The Act,
stipulates that, if either party, unilaterally, initiates Court
proceedings, as the applicant (purchaser) has done, the
other party,
in the position of first respondent (seller), may apply to Court for
an order, staying proceedings.
[23]
[52]
Unless it is specifically provided in the contract, neither party to
an arbitration contract may terminate the contract without
the
consent of the other parties to the contract.
[24]
However, the Court on application and on good cause shown, as to why
the matter should not be referred to arbitration in accordance
with
the contract, may hear it.
[25]
[53]
No argument has been made before me or on papers, to show ‘good
cause’, why the current dispute, should not be
referred to
arbitration, in accordance with the parties’ choice, to resolve
their disputes privately. It is the practice
of our law that
pacta
sunt servanda
.
As Cameron J observed, in
Brisley
v Drotsky
[26]
Courts, are required to respect the parties’ contractual
autonomy, as it informs,
inter
alia
,
the constitutional values of dignity and equality.
[27]
[54]
Absent any special circumstance why the parties’ choice of
arbitration, as a dispute resolution mechanism, should not
be
respected, It is my view, that this application was brought
prematurely. This dispute, should first, have been referred to
arbitration. Consequently, first respondent’s (seller’s)
application, for stay of proceedings, is granted. However,
I do not
consider it fair, to order costs against the applicant (purchaser).
Order
[55]
In the result the following order is made:
55.1
The contract is declared valid.
55.2
Applicant’s claim is stayed pending referral to arbitration as
contemplated in clause 16 of the contract.
55.3There
is no order as to costs.
T
MOSIKATSANA
ACTING
JUDGE OF THE HIGH COURT
COUNSEL
FOR APPLICANT Adv AP Bruwer
Instructed
by Malherbe Rigg & Ranwell Inc
COUNSEL
FOR FIRST RESPONDENT Adv E Vawda
Instructed
by A R Kazi & Company
SECOND
RESPONDENT’S ATTORNEYS UNREPRESENTED
DATE
OF HEARING 25 FEBRUARY 2014
DATE
OF JUDGMENT 01 OCTOBER 2014
[1]
In
the offer to purchase, the immovable property was described as
Section1 Erf 1282 Parkrand Ext 3 situated at 7A Crystal Crescent,
Golden Crest Country Estate, Parkrand Ext 3. Further, in the
addendum the place where the property was located was left out and
the size of the property which was indicated as ‘five thousand
three hundred –and- twenty five (5325) square metres
was
deleted.
[2]
This
indicates that the property was sufficiently identified to meet the
criteria for a valid contract for the sale of land as
stipulated in
s 6(1) of the
Alienation
of Land Act
68 of 1981. See
Phone-A-Copy
Worldwide (Pty) Ltd v Orkin and Another
1986
(1) SA 729
(A);
Forsyth
and Others v Josi
1982 (2) SA 164 (N).
[3]
See
Conlon
and Fletcher v Donald
1951 (3) SA 196
(C) where it was stated that the fact that the
property was not sub-divided at the time of sale does not make it
non-existent.
[4]
Section
6(1)(q) read with
s 6(4)
of the
Alienation
of Land Act
68 of 1981
impose a limit of five years from the date of sale for
registration of transfer.
[5]
This
is not an essential ingredient for validity of a contract for the
sale of land as stipulated in
s 6(1)
of the
Alienation
of Land Act
>
68 of 1981.
[6]
See
note 2 supra.
[7]
Robert
Sharrock
Business
Transactions Law
(2012)
Juta at 699; See also
Protea
Property Holdings (Pty) Ltd v Boundary Financing Ltd (Formerly known
as International Bank of Southern Africa Ltd)
2008 (3) SA 33
(C).
[8]
RH
Christie & GB Bradfield
Christie’s
The Law of Contracts in South Africa
(2007) Juta 530.
[9]
See
para 16
supra
.
[10]
See
Young
v Land Values Ltd
1924 WLD 216
and
Nel
v Cloete
1972 (2) SA where it was said that delay in effecting transfer will
be considered unreasonable if the cause of the delay was
not
foreseeable or was unknown to the creditor.
[11]
For
liability to attach on basis of supervening impossibility it must be
shown that first respondent is responsible for the delay.
However,
it need not be shown that first respondent’s conduct was
unlawful. See Sharrock
supra
note 7 at 700-1; See also SJ Cornelius ‘Mora debitoris and the
principle of strict liability: Scoin trading (Pty) Ltd v
Bernstein
2011 2 SA 118
(SCA)’ PER/PELJ 2012 (15) 5 601-38.
[12]
1978
(1) SA 131
[13]
Nel
v Cloete
1972 (2) SA 150
(A); see also
Willowdale
Landowners Pty (Ltd) v St Martin’s Trust
1971
1 SA 302 (T).
[14]
See
paragraph 19 supra.
[15]
Subsection
6(1)(q) provides that the contract for the sale of land which is not
the subject of a separate title deed at the time
the contract is
concluded, shall contain the latest date at which the land shall be
registrable in the name of the purchaser.
[16]
Subsection
6(4) stipulates that the date stated in a contract in terms of
subsection 6(1)(q), shall not be later than five years
from the date
of the contract.
[17]
Sharrock
supra note 7 at 142. Compare
Extel
Industrial (Pty) Ltd and Another v Crown Mills (Pty) Ltd
1999(2) SA 719 SCA where restitution was found to be impractical
[18]
See
para 23
supra
for the provisions of clause 16.1 of the contract.
[19]
See
Lufuno
Mphaphuli and Associates (Pty) Ltd v Andrews and Another
2009 (6) BCLR 527
(CC) where it was stated that:
‘
[219]
The decision to refer a dispute to private arbitration is a choice
which, as long as it is voluntarily made, should be respected
by the
courts. Parties are entitled to determine what matters are to be
arbitrated, the identity of the arbitrator, the process
to be
followed in the arbitration, whether there will be an appeal to an
arbitral appeal body and other similar matters’
[20]
See
Universiteit
van
Stellenbosch
v
JA Louw (Edms) Bpk
1983 (4) SA 321
at 333G-H.
[21]
See
for example sections 3(2), 6, 7, 8, 10 and 13 of the Act.
[22]
See
Parekh v Shah Jehan Cinemas(Pty) Ltd and Ano
1980 (1) SA 301
at
305E-H, where Didcott J opined:
‘
An
arbitration agreement does not deprive the Court, of its ordinary
jurisdiction over the disputes which it encompasses. All
it does is
to oblige the parties to refer such disputes in the first instance
to arbitration, and to make it a prerequisite to
an approach to the
Court for a final judgment that this should have happened. While the
arbitration is in progress, the Court
is there whenever needed to
give appropriate directions and to exercise due supervision.
And the award of the arbitrator
cannot be enforced without the
Court’s imprimatur, which may be granted or withheld. But that
is by no means all. Arbitration
itself is far from an absolute
requirement, despite the contractual provision for it. If either
party takes the arbitrable disputes
straight to Court, and the other
does not protest, the litigation follows its normal course, without
a pause. To check it, the
objector must actively request a stay of
the proceedings. Not even that interruption is decisive. The Court
has a discretion
whether to call a halt for arbitration or to tackle
the dispute itself. When it chooses the latter, the case is resumed,
continued
and completed before it, like any other. Throughout, its
jurisdiction, though sometimes latent, thus remains intact.’
[23]
See
section 6(1) of the
Act
.
[24]
See
section 3(1)
of the
Arbitration
Act
[25]
Section
3(2)
read with 6(2) of the
Arbitration
Act
.
The onus is on the party resisting referral to show that the matter
should not be referred to arbitration (
Universiteit
van Stellenbosch v JA Louw (Edms) Bpk
at 333H). The onus is a heavy one. The Court’s discretion to
refuse arbitration ‘was to be exercised judicially,
and only
when “a very strong case” had been made out’
(Universiteit van Stellenbosch v JA Louw (Edms) Bpk at
334A).
[26]
2002
(4) SA 1
(SCA) at p 34-5.
[27]
See
Barkhuizen
v Napier
[2007] ZACC 5
;
2007
(5) SA 323
(CC) par [29] where a similar opinion is expressed.