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[2015] ZAGPJHC 31
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Lezmin 2358 CC v Tomeridian Properties CC and Others (36813/2014) [2015] ZAGPJHC 31 (17 February 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG)
CASE NO: 36813/2014
DATE: 17 FEBRUARY 2015
In the matter between
LEZMIN 2358
CC
..............................................................................................................
APPLICANT
And
TOMERIDIAN PROPERTIES
CC
..................................................................
FIRST
RESPONDENT
ZEPHAN PROPERTIES (PTY)
LTD
.........................................................
SECOND
RESPONDENT
NICOLAS
GEORGIOU
...................................................................................
THIRD
RESPONDENT
WERKSMANS
INC
.....................................................................................
FOURTH
RESPONDENT
Practice - Leave to Appeal -
cancellation of agreement - whether valid - vague and seemingly
unsubstantiated attacks against judgment
- no reasonable prospects of
a successful appeal - Leave to appeal refused
J U D G M E N T
(LEAVE TO APPEAL)
VAN OOSTEN J:
[1] The second and third respondents
now seek leave to appeal against the whole of my judgment and the
order I have made. For ease
of reference I will retain the
nomenclature of the parties as in the judgment on the merits.
[2] The dispute between the parties
concerns the crisp question whether Zephan’s purported
cancellation of the agreement,
dated 4 September 2014 (sent on 5
September 2014), constituted a valid cancellation. The purported
cancellation was based on Lezmin’s
alleged failure to comply
with the demand ‘that your client (Lezmin) make payment of the
VAT (and secure the full Purchase
Price payable) within 7 (seven)
days hereof…’ At issue is the payment VAT and the
question whether VAT indeed formed
part of the purchase price.
[3] I have fully dealt with the issues
in my judgment on the merits. In particular I have found that no
contractual obligation existed
for Lezmin to pay or secure the
payment of VAT prior to registration of transfer of the property.
Counsel for the respondents did
not attack either the interpretation
of the agreement and the settlement agreement as not providing for an
obligation on Lezmin
to either pay or secure the payment of VAT prior
to registration of transfer. On the contrary, counsel resorted to the
startling
propositions that such obligation existed ‘because
everything else had to be secured at transfer’ and ‘everybody
understood VAT to be paid or secured before transfer’ which led
counsel to conclude that that obligation flows from the ‘import
of the agreement’. The alleged obligation to pay the VAT prior
to registration of transfer was significantly not again referred
to
in argument before me and counsel for the respondents confined his
argument to the alleged obligation to deliver a guarantee
for the
payment of VAT. The contentions flounder at the first hurdle which is
to consider and interpret the agreements between
the parties. On the
interpretation I have adopted, which has not been challenged, neither
obligation contended for existed, which
decisively and finally
disposes of the matter. I am unable to find any ground upon which
another court may reasonably arrive at
a different conclusion. For
this reason alone the application for leave to appeal is doomed to
failure.
[4] Although not at all necessary for
purpose of deciding the issue between the parties I do consider it
necessary, at the risk
of repetition, to briefly deal with the
request for the delivery of a guarantee for payment of VAT, made by
Werksmans attorneys,
merely to show that on this ground also
(assuming at best for the respondents that such obligation
miraculously existed) the demand
and cancellation following upon it
were invalid and of no force and effect. When it became clear that
VAT was no longer zero rated
and that it had to be paid, Werksmans
attorneys, in a letter to Lezmin’s attorneys, dated 28 August
2014, indicated that
‘The VAT payable has been included in our
statement of account’ which reflects ‘To VAT payable on
purchase price
- R2 940 000.00’. In a further letter to
Lezmin’s attorneys, dated 3 September 2014, Werksmans attorneys
specified
their ‘guarantee requirements in respect of VAT’
and stated in the closing paragraph: ‘We look forward to
receiving
the guarantee as soon as possible’ [emphasis added].
This indeed was the first and only time limit ever imposed in respect
of the delivery of a guarantee. As counsel for Lezmin correctly
pointed out time, at that stage, was not of the essence: the seller
was still challenging its liability to pay the engineering
contribution and the settlement of that dispute was anything but
imminent.
Lezmin, as I have pointed out in the judgment, did arrange
with its bank for the issuing of a guarantee. The letter of demand on
which the cancellation was based, is dated 28 August 2014, and in
terms thereof Lezmin was given 7 days to comply. A period of
7 days
in the circumstances of this case cannot in any way be construed as a
reasonable time, which in any event, was neither dealt
with by nor
contended for on behalf of the respondents. It follows that the
cancellation on this additional ground, was invalid.
[5] Some vague and seemingly
unsubstantiated attacks were aimed at the findings in regard to the
urgency of the matter, the stratagem
that became apparent from the
events as well as the adverse findings concerning the conduct of the
attorney acting for the respondents.
Nothing of substance was
advanced and in particular has it not been shown that another court
may reasonably interfere with any
of the findings I have made.
[6] I not persuaded that reasonable
prospects of a successful appeal exist and it follows that leave to
appeal ought to be refused.
[7] In the result the following order
is made:
1. The application for leave to appeal
is dismissed.
2. The second and third respondents are
ordered to pay the costs of the application for leave to appeal, such
costs to include the
costs consequent upon the employment of two
counsel.
FHD VAN OOSTEN
JUDGE OF THE HIGH COURT
COUNSEL FOR APPLICANT ADV AR BHANA
SC
ADV T MASSYN
APPLICANT’S ATTORNEYS NAM-FORD
INC
COUNSEL FOR SECOND AND THIRD
RESPONDENTS ADV P ROSSOUW SC
ADV W STROBL
SECOND AND THIRD
RESPONDENTS’ ATTORNEYS
KYRIACOU INC
DATE OF HEARING 17 FEBRUARY 2015
DATE OF JUDGMENT 17 FEBRUARY 2015