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[2015] ZAGPJHC 12
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Sheriff of the High Court Roodepoort v Nazlee; InRe: First Rand Bank Limited v Majeke and Another (2009/31887) [2015] ZAGPJHC 12 (5 February 2015)
REPUBLIC
OF
SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2009/31887
DATE:
05 FEBRUARY 2015
In the matter
between:
THE
SHERIFF OF THE HIGH COURT
ROODEPOORT
..................................................
Applicant
And
AMIEN,
NAZLEE
.................................................................................................................
Respondent
In
re
:
FIRST
RAND BANK
LIMITED
.............................................................................
Judgment
Creditor
And
MAJEKE,
A
N
...................................................................................................
first
Judgment Creditor
MAJEKE,
C
................................................................................................
Second
Judgement Creditor
SUMMARY
Execution
– public auction of immovable property – Sheriff of High
Court applying to court for cancellation of sale
in terms of Uniform
Rule 46(11) on basis that purchaser breached conditions of sale –
purchaser counterclaiming for specific
performance –
counter-application not competent since purchaser failed to perform
reciprocal obligations in terms of sale
conditions.
J U D G
M E N T
MOSHIDI,
J
:
[1]
This is an application brought by the Sheriff of the High Court,
Roodepoort (“
the applicant
”)
in terms of Uniform Rule 46(11) for the cancellation of a sale in
execution of immovable property described below.
THE
RELIEF CLAIMED
[2]
In the notice of motion the applicant claimed that the sale in
execution of Erf 3528 Weltevreden Park Ext 29 Township Registration
Division IQ in the Province of Gauteng (“
the
property
”), which sale was held
on 10 May 2013, be cancelled in order that the property may be resold
by the applicant. The
applicant also claimed that the deposit
paid by Nazlee Amien (“
the
respondent
”), at the public
auction sale be retained by the applicant in trust until the damages
have been quantified after completion
of any subsequent sale
envisaged in Uniform Rule 46(11). The applicant also sought
that the respondent be ordered to pay
the costs of the present
application.
THE
RESPONDENT’S OPPOSITION
[3]
The respondent filed an answering affidavit opposing the
application. The respondent also filed a counterclaim, the contents
of which I shall deal with later herein below.
COMMON
CAUSE FACTS
[4]
The following were common cause facts. On or about 27 October
2009, First Rand Bank Limited (“
the
judgment creditor
”), obtained
judgment against the judgment debtors, together with an order
declaring the property executable. The property
was
subsequently attached. In August 2012 the applicant received
instructions from the judgment creditor’s attorneys of record
to sell in execution the property. On 10 May 2013 the sale in
execution took place. The property was purchased by the respondent
at
the sale in terms of a deed of sale (“
the
Conditions of Sale
”), attached to
the founding papers. At the same time, the respondent signed the
Conditions of Sale. The respondent also paid
to the applicant a
deposit in the sum of R11 006,70 as well as the applicant’s
commission in the sum of R76 000,00.
THE
CONDITIONS OF SALE
[5]
The relevant provisions of the Conditions of Sale for present
purposes are clauses 4.4, 4.5, 4.6, 4.7, 4.8.1, 6.4, 6.5 and 8,
which
dealt with the breach of the agreement. Clauses 4.4 to 4.8.1
provided as follows:
“
4.4
The balance of the purchase price shall be paid to the Sheriff
against transfer and shall be secured by a bank guarantee, to
be
approved by the execution creditor’s attorney, which shall be
furnished to the Sheriff within 21 days after the day of
sale. Should
the purchaser fail to furnish the sheriff with a bank guarantee
within 21 days after the date of sale, the sheriff
may in his/her
sole discretion grant the purchaser a 5 day extension within which to
provide the required bank guarantee.
Should the purchaser fail
to furnish the sheriff with a bank guarantee, which is approved by
the execution creditor’s attorney,
within the required time,
the sale may be cancelled.
4.5
The
deposit will be deposited immediately by the sheriff into a trust
account held in terms of Section 22 of the Sheriff’s
Act 90 of
1986.
4.6
If
the transfer of the property is not registered within 1 (one) month
after the date of the sale, the Purchaser shall be liable
for payment
of interest at the rate of 9.75% Nominal Annual Compounded Daily to
the execution creditor, and to any other bondholder
at the rate due
to them, on the respective amounts of the award in the plan of
distribution, as from the expiration of 1 (one)
month after the sale
to date of transfer.
4.7
The
purchaser shall be responsible for payment of all costs and charges
necessary to effect transfer, including but not limited
to
conveyancing costs, transfer duty or VAT attracted by the sale any
Deeds Registration Office levies. The purchaser shall
further
be responsible for payment, within 7 days after been requested to do
so by the appointed conveyancer:
4.7.1
of
all amounts required by the Municipality for the issue of a clearance
certificate in terms of
section 118(1)
of the
Local Government
Municipal Systems Act, No. 32 of 2000
, to the effect that all amounts
due in connection with immovable property for municipal service fees,
surcharges on fees, property
rates and other municipal taxes, levies
and duties during the two years preceding the date of application for
the certificate have
been fully paid;
4.7.2
of
all levies due to a Body Corporate in terms of Section 37 of the
Sectional Title Act, No. 95 of 1986 or Home Owners Association.
4.8
The
purchaser is hereby informed of the following charges:
4.8.1
Arrear rates and taxes, estimated at R19 521.00 & R95 830.00.
”
Clauses
6.1 to 6.4 of the Conditions of Sale provided as follows:
“
6.1
The property shall be at the risk and profit of the purchaser after
the fall of the hammer and the signing of the conditions
of sale and
payment of the initial deposit.
6.2
The
Purchaser shall be liable to keep insured and all buildings sanding
on the property sold for the full value of same from the
fall of the
hammer and the signing of the conditions of sale and payment of the
initial deposit to the date of transfer.
Failing which the
sheriff may effect the insurance at the purchasers expense.
6.3
The
execution creditor and the Sheriff give no warranty that the
Purchaser shall be able to obtain personal and/or vacant occupation
of the property or that the property is unoccupied and any
proceedings to evict the occupier(s) shall be undertaking by the
Purchaser at his/her/its own cost and expense.
6.4
The
property is sold as represented by the Title Deeds and diagram and
the sheriff is not liable for any deficiency that may be
found to
exist. The property is sold as it stands (‘voetstoots’)
and without warranty or representation and also subject
to all
servitudes and conditions specified in the Deed of Transfer,
including any right reserved in favour of a developer or body
corporate in terms of
Section 25
of the
Sectional Titles Act, No. 95
of 1986
. Notwithstanding anything to the contrary hereinbefore
contained, the property is sold free from any title conditions
pertaining
to the reservation of personal servitudes in favour of
third parties and in respect of which servitudes preference has been
waived
by the holder thereof in favour of the execution creditor.
”
UNIFORM
RULE 46(11
)
[6]
Uniform
Rule 46(11)
on which the instant application is based
provides as follows:
“
(a)
If the purchaser fails to carry out any of his or her obligations
under the conditions of sale, the sale may be cancelled by
a judge
summarily on the report of the sheriff conducting the sale, after due
notice to the purchaser, and the property may again
be put up for
sale.
(b)
The
purchaser shall be responsible for any loss sustained by reason of
his or her default, which loss may, on the application of
any
aggrieved creditor whose name appears on the said sheriff’s
distribution account, be recovered from him or her under
judgment of
the judge summarily on a written report by the said sheriff, after
such purchaser shall have received notice in writing
that such report
will be laid before the judge for such purpose.
(c)
If such purchaser is already in possession of the property, the said
sheriff may, on 10 days notice apply to a judge for an
order ejecting
him or her or any person claiming to hold under him or her
therefrom.
”
For
the sake of completion, and possible relevance to this matter,
Uniform
Rule 46(13)
provides that the Sheriff shall give transfer to
the purchaser against payment of the purchase money
and
upon performance of the Conditions of Sale
and for
that purpose do anything necessary to effect registration of transfer
(underlining added).
[7]
From the papers, the present application was not to be decided
summarily in chambers, but was argued in open court (
cf
The
Sheriff
v
Jaithoon
[1]
and see
The
Sheriff v Mashaba
[2]
).
[8]
It was the applicant’s case that the respondent has breached
clause 4 of the Conditions of Sale in that the respondent
failed to
provide the applicant with a bank guarantee in respect of the balance
of the purchase price. On 4 June 2013, some
three years after
the sale in execution, the judgment creditor’s attorneys of
record addressed a letter to the respondent
in the following terms:
“
We
refer to the above matter and confirm that we act in this matter on
behalf of the seller, the Sheriff of the High Court, Roodepoort.
Our instructions are that you are in breach of your obligations
arising out of the Conditions of Sale entered into between yourself
and the Sheriff of the High Court, Roodepoort, in that –
1.
You
have failed to furnish us with payment of a guarantee for the
purchase price. Your failure to fulfil your commitments
in
terms of the above constitutes a breach of your obligations in terms
of the Conditions of Sale and accordingly give you notice
that you
are in breach of your obligations. We hereby give you notice that
should you not remedy your breach within 7 (seven) days
from the date
of this letter, our client intends taking action to cancel the
sale.
”
[3]
There
was no response from the respondent until the present application was
served on her attorneys of record, Y Johnson Inc (“
Attorneys
Y Johnson
”). On 22 August
2013, the respondent filed a notice to oppose through her present
attorneys, Mangera and Associates,
and later opposing papers and a
counterclaim. The answering affidavit was filed out of time, and for
which the respondent sought
condonation.
THE
ANSWERING AFFIDAVIT
[9]
The answering papers were rather lengthy, comprising of a
counterclaim, a point
in limine
,
confirmatory affidavits and various annexures as well as an
application to strike out certain portions of the applicant’s
papers in the counter-application and replying affidavit. These
papers dealt at length with the delay on the part of the
respondent
to furnish the required bank guarantee. I must at the outset state
that the point
in limine
which raised the matter that the applicant’s founding affidavit
was not properly commissioned and signed, had no merit at
all and
called to be rejected. The same applied to the application to strike
out.
[10]
It is significant that in the answering papers, the respondent
described herself as follows:
“
I
pause to point out that my business consists of purchasing
properties, sold by way of sale in execution, and then either
immediately
finding a purchaser for the property and on selling it,
alternatively renovating the property and selling it at a later
stage.
”
[4]
What
is equally significant was that the respondent, in sketching the
delay in fulfilling her obligations in terms of the Conditions
of
Sale, admitted in her counterclaim that she provided the guarantee to
the judgment creditor’s attorneys of record, Lowndes
Dlamini
(“
Lowndes Dlamini
”)
out of time i.e. on 19 August 2013 as opposed to within 21 days after
the date of the sale, as provided for in clause 4.4
of the Conditions
of Sale. There were various reasons advanced for the delay as
mirrored in the extensive exchange of correspondence
between the
parties.
[11]
The guarantee delivered by the respondent on 19 August 2013 only,
was, however, unacceptable to Lowndes Dlamini, for reasons
set out
later in this judgment. The chronological events revealed the
following: On 26 June 2013 and while the respondent
was in breach of
the Conditions of Sale, Lowndes Dlamini forwarded the necessary
guarantee required to the respondent by way of
a
pro
forma
account, as shown in annexure
“NA4” attached to the respondent’s
counter-application. The significance of the
pro
forma
account showed that at that sage
(26 June 2013) the respondent was already in breach of the Sale
Conditions; that Lowndes Dlamini
already had instructions from the
applicant to proceed with the cancellation of the sale in execution
since a
Rule 46(11)
fee was included therein; transfer duty in the
amount of R10 489,65 was also included; and clearance figures (i.e.
the rates payable)
in the sum of R189 654,89 were listed).
[12]
As stated earlier, the guarantee subsequently delivered by the
respondent was not acceptable to the judgment creditor’s
attorneys. The guarantee did not contain the correct property
description of the property. The respondent was required to rectify
the guarantee. Later, on 17 September 2013, more than three years
after the sale, the respondent delivered a proper guarantee.
This was
confirmed by the respondent in her affidavit in support of the
counter-application.
[5]
[13]
It was the applicant’s case that in spite of the delivery of
the correct guarantee later, the respondent had, in any
event, not
performed in full all her reciprocal obligations in terms of the
Conditions of Sale. In this regard, reliance was placed
on certain
events. These included a letter from Lowndes Dlamini addressed to the
respondent’s former attorneys (“
Van
Eeden Attorneys
”)
on 12 December 2013 in the form of annexure “E”.
[6]
Annexure “E” contained certain settlement proposals with
prejudice. The contents of the annexure were significant
and it was
necessary to quote therefrom somewhat
in
extensio
.
[14]
Paragraphs 6 to 10, respectively, stated that:
“
Your
client, in the counter-application, seeks that our client does all
things necessary to give effect to the transfer of the immovable
property (as purchased by your client on 10 May 2013) (in terms of
prayer 2 of the notice of motion) together with a punitive costs
order. Your client essentially seeks specific performance in terms of
the signed conditions of sale. We record that your client
has
delivered the required guarantee (as required in terms of clause 4.4
of the conditions of sale) and has paid our costs.
We however
place on record that your client to date not, paid the required
clearance figures; and/or paid the transfer duty (in
respect of the
immovable property). Your client has accordingly not performed
in full in terms of the conditions of sale.
”
In as far as the clearance figures, and transfer duty were concerned,
paras 11 to 16 provided as follows:
“
In
order to facilitate the expeditious finalisation of the matter we
advise that at paragraph 30 of your client’s affidavit
in
support of her counter-application, your client alleges that on 12
September 2013 she was in possession of revised City of Johannesburg
clearance figures. We place on record that we have not had
sight of these revised City of Johannesburg clearance figures,
and we
are as a result thereof not in a position to comment on your
allegation contained within paragraph 31 of your client’s
affidavit in support of her counter-application. We hereby
request (in order to facilitate the transfer process and amicable
settlement) a copy of the revised clearance figures to be provided to
our offices within five (5) days from the date of this letter.
We
need to ensure that the revised clearance figures are still valid for
clearance purposes. Once we are in possession of
the valid
revised clearance figures, our offices will be in a position to
calculate the transfer duty payable by your client.
We confirm
that once we are in possession of the valid revised clearance
figures, we will provide you with the transfer duty payable
within
two (2) days. Following payment by your client of the revised
clearance figures and transfer duty, transfer and registration
of the
immovable property into your client’s name can commence.
”
With
regard to the lapsed revised clearance figures, annexure “E”
in paras 17 to 19 provided that:
“
Should
the revised clearance figures have lapsed (and no longer valid), your
client is well aware of the fact that transfer cannot
proceed (as the
clearance figures have not been paid, and as a consequence thereof
transfer duty could not be calculated nor paid).
This will require
our offices to obtain new clearance figures in terms of section 118
of the Municipal Systems Act, which will
be tendered to your client
for payment. Although we note the relief your client seeks in
her counter-application, your client
has not paid the revised
clearance figures or the required transfer duty.
”
[15]
The respondent reacted to the above letter by way of a letter from
her attorneys, Van Eeden, dated 28 January 2014, annexure
“F”.
[7]
The latter annexure read,
inter
alia
,
that:
“
We have
had an opportunity to now consult with our client regarding the
contents of your letter. We take notice of the time
periods
contained therein and notice that these have expired.
Accordingly, it is first necessary ascertain whether your client
is
amenable to extend these time periods. If your client is
amenable to such an extension then we propose the following in
an
attempt to finalise this matter (this proposal is similar to the
proposal contained in your letter);
2.1
the pending applications are stayed for a period of 30 days, from the
date of your acceptance of this proposal, for our respective
clients
to comply with proposal below;
2.2
our client, within a week from the date of your acceptance of this
proposal, shall apply for current clearance figures from
the City
of Johannesburg in respect of the property. As you are aware our
client is in a position to negotiate reduced clearance
figures with
the City of Johannesburg and your client is in a position to confirm
these clearance figures with the Council;
2.3
once in receipt of the aforesaid clearance figures your office will
be in a position to finalise the transfer duty and present
our client
with the necessary transfer duty figures for payment;
2.4
once
our client is in possession of the clearance and transfer duty
figures as set out above, our client will make payment of those
amounts within 10 days from the date of receipt of these figures;
2.5
once payment of the aforesaid amounts has been paid all requirements
for the transfer of this property have been satisfied
and your client
agrees to affect transfer of the property immediately.
”
In
the end, all the settlement proposals were fruitless. The respondent
remained in breach in regard to the clearance certificate.
THE
RESPONDENT’S COUNTERCLAIM
[16]
In her counterclaim, the respondent sought an order compelling the
applicant to do all things necessary, including the signing
of all
necessary documents, to give effect to the transfer of the property
into the name of the respondent. In the alternative,
the respondent
asked for an order that an independent attorney, nominated by the
respondent, be authorised to do all things necessary
to give effect
to the transfer of the property in the place of the applicant.
This relief claimed by the respondent is in
essence in the form of
specific performance. It was based on the respondent’s
assertions that all the requirements
were in place for Lowndes
Dlamini to proceed with the transfer of the property into her name.
Significantly, the respondent
contended that these requirements have
been in place since at least 12 September 2013 (more than three years
after the Conditions
of Sale were accepted and signed by the
respondent). The respondent further challenged the motive of
Lowndes Dlamini in not
wanting to proceed with the transfer of the
property. If the sale was cancelled now, as opposed to when the
respondent first
defaulted earlier, the applicant will have to resell
the property, which will result in further unnecessary costs together
with
more interest that will accrue in respect of the property. In
addition, the respondent alleged that the outstanding rates and
taxes,
water, and electricity account in respect of the property
would increase from the amount of R189 654,89 at the time of the sale
agreement in May 2010. This, so argued the respondent, would
hinder potential buyers from bidding for the property, and would
also
result in a lower purchase price on resale. The respondent also
raised the issues that the buildings erected on the
property were
done without the necessary plans in place.
[17]
In the heads of argument, it was submitted on behalf of the
respondent that she had on numerous occasions tendered performance
and continued to do so. It was also argued that the amount
owing to the City of Johannesburg in respect of arrear rates,
taxes,
water and electricity charges was substantial, and that the property
is defective insofar as the building erections thereon
were illegal,
and that if the deed of sale agreement is cancelled, it is the bank,
not the respondent, that will lose a substantial
amount of money.
Based on the lengthy delays since the sale in execution (10 May
2010), the respondent’s main ground
upon which she opposed the
present application was articulated as being the applicant’s
attorneys of record’s conduct
which implied that the applicant
has waived his right to cancel the deed of sale agreement. The
applicant by seeking to now
cancel the sale, was attempting to
approbate and reprobate the sale agreement, which he could not do.
[18]
The applicant opposed the counter-application of specific
performance through an affidavit of Ms P C Lagarto (“
Lagarto
”),
a Director of the applicant’s attorneys of record, Lowndes
Dlamini. Lagarto dealt with the matter on behalf of the
applicant.
The applicant himself, declined to make an answering affidavit to the
respondent’s counterclaim. This was
based on the fact that he
could not confirm the facts and/or the legal submissions which were
not within his personal knowledge.
The applicant, however,
persisted with the relief to cancel the sale in execution as
contained in his confirmatory affidavit attached
to Lagarto’s
affidavit.
[8]
The applicant also sought condonation for the late filing of the
answering affidavit opposing the respondent’s
counter-application.
In my view, such condonation ought to be
allowed.
[19]
In essence, the applicant opposed the relief sought in the
counterclaim on the basis, namely, that the respondent had not
performed her reciprocal obligations towards the applicant.
Such failure on the part of the respondent disentitled her claim
to
specific performance. This, on the basis
exceptio
non adimpleti
contractus
.
I deal with the latter later herein below.
ISSUES
FOR DETERMINATION
[20]
The first issue to determine, based on the facts of this matter,
especially the common cause ones, was whether the respondent
breached
the Conditions of the Sale Agreement. If so, whether the applicant
was entitled to cancel the sale. It is trite that a
breach of
contract occurs generally when a party to the contract, without good
cause fails to honour his/her obligations under
the contract.
See
Singh
v McCarthy Retail Ltd t/a McIntosh Motors
.
[9]
In Christie’s
Law
of Contract in South Africa
[10]
,
it is stated that:
“
The
obligation imposed by the terms of a contract are meant to be
performed, and if they are not performed at all, or performed
late or
performed in the wrong manner, the party on whom the duty of
performance lay (the debtor) is said to have committed a breach
of
the contract or, in the first two cases, to be in mora, and, in the
last case, to be guilty of positive malperformance.
”
Reference
was also made to
Ally
and Others NNO v Courtesy Wholesalers (Pty) Ltd.
[11]
See also
Lillicrap,
Wassenaar and Partners v Pilkington Brothers.
[12]
[21]
In
The
Sheriff v Jaithoon (supra)
,
the Court had to decide whether the Sheriff had the power to cancel
the sale, and resell the property without having obtained
leave from
the Court to do so. In that case, the purchaser was in breach
of the conditions of sale by failing to pay the
balance of the
purchase price after paying a deposit only in respect of the sale.
Cancellation of the sale was granted as claimed
by the Sheriff.
See also
Ex
Parte Sheriff of Pinetown: In Re Ithala Development Finance
Corporation Ltd v Buthelezi.
[13]
[22]
In the context of the present matter, clauses 4.4 and 4.7.1 of the
Conditions of Sale, quoted above, were crucial. The sale
was held on
10 May 2010. In terms of clause 4.4 of the Conditions of Sale the
respondent had to provide a bank guarantee, to be
approved by the
execution creditor’s attorneys within 21 days after the date of
sale. The respondent also had to, within
7 days after being
requested to do so by the appointed conveyancer, pay all amounts
required by the City of Johannesburg for the
issue of a clearance
certificate in terms of sec 118(1) of the Local Municipal Systems Act
32 of 2000. This, the respondent
did not do. Instead,
after the sale the respondent chose to negotiate with a bank to
obtain a bond in favour of her own new
purchaser. It was only
on 17 September 2013 (some 40 months after the sale) did the
respondent deliver an acceptable guarantee
to Lowndes Dlamini.
This was common cause since the respondent herself in her
counter-application said:
“
On
17 September 2013 I forwarded the amended guarantee to Legarto.
Annexure ‘AN13’ is a copy of this mail.
”
[14]
However,
in spite of the fact that the late delivery of the guarantee was
accepted by Lowndes Dlamini, a large portion of the respondent’s
counter-application made it plain that the applicant remained
entitled to an order cancelling the sale concluded on 10 May 2010.
[23]
With regard to the clearance figures as required by clause 4.7.1 of
the Conditions of Sale, it was only on 12 September 2013
that the
respondent, on her own version, was allegedly in possession of
revised figures. This was clearly not within the seven
days period as
stipulated in the admitted Conditions of Sale. In addition, the
respondent, on her own version, in the founding
affidavit in support
of the counter-application (commissioned on 15 November 2013) stated
that:
“…
I
am in receipt of the revised City of Johannesburg clearance figures
and enquired whether I can make payment thereof. The reason
I
enquired whether I could make payment of these figures was because I
did not want to effect payment to the City if this matter
was going
to be cancelled because I would not get a refund.
”
This,
in my view, was a clear manifestation of a breach of the Conditions
of Sale. The payment of clearance figures was essential
for the
transfer of the property from the execution debtors to the
respondent. In this regard
sec 92
of the
Deeds Registries Act
47 of 1937
provides that no transfer of land shall be registered
unless accompanied by a receipt or certificate of a competent public
revenue
officer that the taxes, duties, fees and quitrent payable to
any provincial administration on the property to be granted or
transferred
have been paid. As at the hearing of this matter
the clearance figures amount had still not been paid by the
respondent.
This fact was admitted by the respondent in the replying
papers in the counter-application.
[15]
In para 22.3 of the said affidavit, the respondent went on to state
that:
“
Any
person who has had the experience with the City of Johannesburg will
confirm the very slim chances of recovering monies paid
over to them,
especially in a situation like this.
”
The
respondent therefore remained in breach of the Conditions of Sale,
which entitled the applicant to cancel the sale in execution.
[24]
From the above, it was readily plain that the respondent, on her own
version, failed to comply with the Conditions of Sale,
and remained
in default thereof to date. The applicant’s election to
cancel the sale in execution was accordingly manifest.
This was
borne out by the credible evidence. There was no question of
the applicant approbating and reprobating, as contended
for on behalf
of the respondent. The applicant made genuine attempts to first
resolve the matter amicably. It could not be now
argued that the
applicant had lost the right to cancel the sale agreement. The
right to cancel was exercised within a reasonable
time in the
circumstances of this matter. See for example
Mahabeer
v Sharma NO and Another
.
[16]
THE
DETERMINATION OF THE COUNTER-APPLICATION
[25]
The respondent’s counter-application, in the light of the above
finding, required brief discussion only. The counter-application
had
no merit and must fail, for a number of reasons. The contract
on which the Conditions of Sale was based plainly imposed
reciprocal
obligations on the parties thereto. The applicant had complied
with his part of the agreement. On the other
hand, the
respondent failed demonstrably to perform her part under the
Conditions of Sale. The guarantee for payment of the balance
of the
purchase price was furnished late by the respondent. Guarantees
and transactions such as in the present matter are
important.
See for example in this regard
Rosen
v Ekon.
[17]
The
respondent failed to pay the amount of the clearance figures to date.
Her tender to do so at the hearing of the matter, was
unhelpful and
insufficient, and clearly belated. The applicant’s
grounds for opposing the counterclaim based on the
respondent’s
failure to perform her obligations in terms of the Conditions of
Sale, were well-founded. In the circumstances,
it will be
unjust and inequitable to both the judgment creditor, the judgment
debtors and the applicant to allow the respondent’s
counterclaim whilst she remained in default.
THE
BUILDING PLANS
[26]
The argument of the respondent that there were no building plans for
the property and the cottages built thereon, had no merit
at all.
It too, ought to be dismissed out of hand. As argued by the
applicant, and quite correctly so in my view, the
respondent accepted
the risk of purchasing the property, with all its improvements when
she signed the conditions of sale on 10
May 2010. In terms of
clause 6.1 of the Conditions of Sale, the property was at the risk
and profit of the purchaser after
the fall of the hammer and the
signing of the Conditions of Sale and payment of the initial
deposit. Clause 6.4 of the Conditions
of Sale provided,
inter
alia
, that the property is sold as
represented by the Title Deeds and diagram, and that the Sheriff was
not liable for any deficiency
that may be found to exist. The sale in
execution was not subject to any known suspensive conditions.
The sale was not expected
to influence, in any way the respondent’s
duty and obligations to perform in terms of the admitted conditions
of sale. There
was in any event, no credible evidence to support the
respondent’s contention about the absence of, or unlawful
building
plans. It also appeared to me that the argument was somewhat
self-destructive of the respondent’s cause. This was so
since that, on the one hand the respondent made the allegation about
the absent plans, whilst on the other hand, she insisted on
taking
transfer of the property. What was, however, clear was that the
respondent was not entitled to an order for specific
performance
based on the
exceptio non adimpleti
contractus
. The applicant made
out a case for the cancellation of the sale in execution. In
closing argument the applicant undertook
to refund to the respondent
the transfer duty and/or fees, in the event of the sale being
cancelled. It will be proper to
do so without a court order to
that effect, in my view.
COSTS
[27]
I deal briefly with the question of costs. It is a
discretionary matter. There was no reason advanced by the costs
should not follow the result. These kind of applications are
normally dealt with in chambers by a judge. The present application
was heavily opposed by the respondent. The respondent also
filed a counter-application which had no merit at all. She
must
pay the costs.
ORDER
[28]
In the result the following order is made:
1.
Condonation
is granted to both parties to the extent that affidavits were filed
out of time.
2.
An
order is granted in terms of prayers 1, 2 and 3 of the notice of
motion dated 31 July 2013.
3.
The
respondent’s counter-application is dismissed with costs.
D
S S MOSHIDI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR THE APPLICANT L VAN TONDER
INSTRUCTED
BY LOWNDES DLAMINI
COUNSEL
FOR THE RESPONDENT M G GIOIA
INSTRUCTED
BY Y JOHNSON ATTORNEYS INC
DATE
OF HEARING 7 OCTOBER 2014
DATE
OF JUDGMENT 5 FEBRUARY 2015
[1]
1955
(3) SA 416
(NPD).
[2]
1948
(4) SA 870
(T).
[3]
See
bundle p 17, annexure “C”.
[4]
See
para 11 of answering affidavit (
sic
).
[5]
See
para 38 of the respondent’s affidavit in counter-application.
[6]
See p
127 bundle, as well as the respondent’s response thereto.
[7]
See
bundle p 130.
[8]
See
annexure “D” bundle p 124.
[9]
[2000]
4 All SA 487
(A), also reported at
[2000] ZASCA 129
;
2000 (4) SA 795
(SCA).
[10]
6ed
para 13, p 515.
[11]
1996
(3) SA 134
(N) 149F-150H.
[12]
1985
(1) SA 475
(A) at 499.
[13]
2008
(1) SA 456
(D&CLD).
[14]
See
para 38 p 11 of counterclaim.
[15]
See
paras 22.1 to 22.3 of the replying affidavit, p 155.
[16]
1985
(3) SA 729
(A).
[17]
[2000]
3 All SA 24
(W).