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[2015] ZAGPJHC 102
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V and Another v Coetzee (35029/2014) [2015] ZAGPJHC 102 (5 June 2015)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 35029/2014
DATE: 05 JUNE 2015
In the matter between:
[M……..] [P………]
[V………]
.......................................................................................
First
Applicant
[J………] [G…….]
[M…….]
[V………]
....................................................................
Second
Applicant
And
GERRIT LODEWIKUS
COETZEE
...................................................................................
Respondent
J U D G M E N T
MAKUME, J:
[1] In this matter the Applicants who
are the owners of certain property described as PTN 1 of Erf 1…….,
V………..],
Ext 6 Registration Division I.R.
Province of Gauteng (“the property”) seek an order
evicting the Respondent and all
those in occupation of the property.
The application is opposed.
[2] It is common cause that during or
about the 28th March 2011 the Applicants and the Respondent entered
into a written agreement
of sale in terms of which the Applicants
sold to the Respondent the property.
[3] The purchase price of the property
was the sum of R2,4 million which amount was payable in monthly
instalments of R53 386,67
the first instalment was to be paid by the
Respondent on the 1st April 2011 and subsequent instalments to be
paid on the first
day of each of the following months.
[4] Occupation of the property was
given to the Respondent on the 1st March 2011. On the 27th May 2014
the Applicants’ attorneys
Messrs De Beer Attorneys addressed a
letter of demand to the Respondent in which the Applicants informed
the Respondent that he
was in breach of clause 2.2 of the sale
agreement in that he has made no payments since June 2013 up to May
2014 and was accordingly
in arrears with payments in the amount of
R497 173,27. The letter of demand proceeded to request the respondent
to remedy the breach
as per clause 9 of the sale agreement within a
period of 30 days.
[5] In the letter of the 27th May 2014
the Applicants informed the Respondent that should he fail to remedy
the breach that will
be taken as repudiation of the agreement by him
and that Applicants will accept such repudiation and cancel the sale
agreement.
[6] On the 1st July 2014 the
Applicants’ attorneys addressed a letter to the Respondent
informing him that the sale agreement
is now cancelled in view of the
Respondent’s failure to remedy the breach as set out in their
letter of the 27th May 2014.
[7] On the 29th July 2014 the
Respondent replied to the above letter and told the Applicants that
he had up to April 2014 paid a
total of R1 608 208,38 and claims that
in terms of the sale agreement he was entitled to take transfer of
the property and seeing
that Applicants had failed to effect transfer
of the property into his name that is why he had stopped making
further payment.
He concluded by demanding that transfer be effected
in the name of a Trust not into his name as per the sale agreement.
[8] The Respondent’s letter of
the 29th July 2014 did not address the cancellation of the agreement
instead the Respondent
demanded that the property be transferred into
the name of a Trust. He followed up that letter with another letter
dated the 31st
July 2014 in which he gave his new address as:
Centara Karon
The Lagoon Resort
502/3 Patak Road
Karon Beach
B 3110
Thailand
The Respondent said nothing about the
cancellation of the sale agreement.
[9] On the 12th August 2014 the
Applicants through their new attorneys Messrs Steyn, Steyn and
Partners addressed a letter to the
Respondent that despite
cancellation of the agreement that Applicants were prepared to agree
to transfer of the property at that
stage on the following
conditions:
9.1 That a new instalment sale
agreement be concluded between the Applicants and the Trust on the
same terms and conditions as the
previous agreement.
9.2 That the Respondent would be
required to sign surety in his personal capacity as co-principal
debtor in solidum for payment
of the purchase price together with the
Trust.
9.3 That a bank guarantee be delivered
to the Applicants within 30 days for payment of the arrears of R634
026,99.
9.4 That a bond be registered in favour
of the Applicants over the property in terms of section 27 of the
Alienation of Land Act.
[10] In the letter Applicants requested
the Respondent to indicate by close of business on the 27th August
2014 whether the new
offer was accepted or not failing which
Applicant would proceed with an eviction application.
[11] On the 27th August 2014 the
Respondent replied to the above letter and made a counteroffer in
which he offered to pay an amount
of R1 million in full and final
settlement as the purchase price for the property by the Trust. This
letter was immediately followed
by another one dated the 2nd
September 2014 in which letter he denies having breached the
agreement and in a conciliatory gesture
he proposed a new settlement
in which he will continue with the monthly payments whilst transfer
into his name take place and further
agrees to a bond being
registered over the property for the balance.
[12] The Applicants responded to this
letter on the 9th September 2014 and in their response the Applicants
were still prepared
to transfer the property to the Respondent
against payment of the arrears. The Respondent was referred in this
regard to the decision
of Botha and Another v Rich NO and Others
2014
(4) SA 124
(CC). The Respondent was allowed time until the 12th
September 2014 to accept the Applicants’ proposal or face
litigation
for his eviction from the property. An itemised statement
was attached. This statement indicated that between the 20th
September
2013 and April 2014 no payments were received. The last
payment of R50 000,00 was received during April 2014 and at that time
only
an amount of R1 608 202,70 had been paid.
[13] On the 12th September 2014 being
the date on which the Respondent had to respond to the final offer
made by Applicants he wrote
a letter saying that he is seeking legal
opinion and requires more time, he further said that although he had
signed the sale agreement
in English and had in fact requested that
he now for some strange reason says he want all correspondence in
Afrikaans.
[14] It would appear that no further
correspondence exchange hands between the parties and on the 8th
October 2014 the Applicant
obtained an order in this Court to serve
this application on the Respondent by sending it to the Respondent’s
email address
as well as service by the Sheriff on the security guard
at 176 Bendor Avenue, Heidelberg.
[15] The Respondent filed his answering
affidavit resisting eviction on the 10th November 2014. In his
affidavit the Respondent
raises three points in limine which are the
following:
15.1 The Respondent argues that the
Applicant failed to comply with the provisions of section 7(1) of the
Alienation of Land Act
(“the Act”) in that the Applicants
failed to hand to the Respondent a certificate by the mortgagee
indicating the amount
owed on the property by the Applicant.
15.2 Secondly, the Respondent argues
that the Applicants failed to comply with the provisions of section
20 of the Alienation of
Land Act in that the Applicants failed to
record the agreement and have such agreement of sale endorsed by the
registrar of deeds
on the title deed of the property within 90 days.
15.3 Thirdly, the Respondent says that
the Applicants contradicted the provisions of section 26(1)(b) of the
Alienation of Land
Act in that no person shall by virtue of a deed of
alienation receive consideration until the sale agreement shall have
been recorded
in terms of section 20 of the Act.
[16] In paragraph 22 of his answering
affidavit which is in answer to paragraph 9 of the founding affidavit
the Respondent admits
that a sale agreement was concluded as pleaded
but denies that it has been legally complied with in terms of the
Act. He then refers
to the three points in limine and continues to
deny that he was in arrears with the monthly instalments.
[17] In paragraph 30 of his answering
affidavit the Respondent having in his previous paragraph admitted
receipt of the letter of
demand dated the 27th May 2014 he denies
that he repudiated the sale agreement and says that in the
alternative should this Court
find that a valid and binding agreement
had been entered into in terms of section 20 of the Act. He denies
that the Applicants
complied with the requirements of section 19(3)
of the Act.
[18] The Respondent admits that on the
15th July 2014 a letter of cancellation of the agreement was sent to
him. He however says
that there was no compliance with the
provisions of section 19(3) of the Act prior to cancellation of the
agreement.
[19] At paragraph 36 the Respondent
denies that he is in unlawful occupation of the property since
cancellation of the agreement.
He however does not say on what basis
is his further stay lawful.
[20] Besides the three points in limine
it is clear that the Respondent attacks not only the validity of the
sale agreement but
also that cancellation was not in compliance with
the provisions of section 19(3) of the Alienation of Land Act. He
further denies
that he was in arrears with his monthly instalments as
at the time that the letter of demand dated the 27th May 2014 was
dispatched
to him.
THE POINTS IN LIMINE
[21] Section 1 of the Act sets out a
number of definitions amongst that is the word “land” in
that section under the
heading land subparagraph (c) thereof reads as
follows:
“’land’ in section
3(2) and Chapter II –
(i) means any land used or intended to
be used mainly for residential purposes;”
[22] Section 3(2) of the Act deals
specifically with land sold by public auction. Sections 7 and 20 of
the Act are contained within
Chapter 2 of the Act. It is common
knowledge that the property hereby sold is industrial and not
residential. According to sections
7 and 20 had no application to
the property. The points in limine are accordingly dismissed.
[23] It is only section 26 which falls
outside Chapter 2. Sections 26(1) and 26(2) read as follows:
“26(1) No person shall by virtue
of a deed of alienation relating to an erf or a unit receive any
consideration until –
(a) such erf or unit is registrable;
and
(b) in case the deed of alienation is a
contract required to be recorded in terms of section 20, such
recording has been effected.
26(2) Any person who contravenes the
provisions of subsection (1) shall be guilty of an offence and liable
on conviction to a fine
not exceeding R1 000,00 or to imprisonment
for a period not exceeding one year or to both such fine and such
imprisonment.”
[24] Section 26 refers to erf and unit.
There is no suggestion that the property sold in this matter is an
erf or a unit. In the
definition clause of the Act erf is described
as meaning an erf as defined in section 102 of the Deeds Registries
Act and unit
is defined as meaning a unit as defined in section 1 of
the Sectional Titles Act and includes any proposed unit. If is
accordingly
clear that section 26 has no application and accordingly
the point in limine raised under that section is dismissed.
[25] Even if I was wrong in my
conclusion section 26(2) prescribes a form of punishment in the event
of contravention of section
26(1)(b) it does not invalidate the
agreement.
[26] Reverting to the defences if any
raised on the merits at paragraph 20 of his heads of argument the
Respondent says that the
sale agreement is still binding and that the
Respondent is entitled to take transfer of the property in terms of
section 27(1)
of the Act as he has paid in excess of 50% of the
purchase price. The Respondent adds that as the agreement is still in
force that
he is not in illegal occupation of the property and pleads
that the Applicant is not entitled to the relief he seeks.
[27] It is common cause that when the
Applicants sent a letter of demand to the Respondent during May 2014
the Respondent had already
paid an amount of R1 608 202,70 in
reduction of the purchase price. This much is evident from a copy of
the statement attached
to Applicants’ letter addressed to the
Respondent dated the 9th September 2014. If no interest is taken
into consideration
it is correct that at that stage the Respondent
had paid over 50% of the purchase price. However, it must be kept in
mind that
he had not been paying any instalment for a period of seven
months and then made a payment of R50 000,00 during April 2014
shortly
before the letter of demand was dispatched to him.
[28] Section 27(1) of the Alienation of
Land Act reads as follows:
“Any purchaser who in terms of a
deed of alienation has undertaken to pay the purchase price of land
in specified instalments
over a period in future and who has paid the
seller in such instalments not less than 50 per cent of the purchase
price shall if
the land is registrable, be entitled to demand from
the seller transfer of the land on condition that simultaneously with
the registration
of the transfer there shall be registered in favour
of the seller a first mortgage bond over the land to secure the
balance of
the purchase price and interest in terms of the deed of
alienation.”
[29] Registration of the property in
the name of the purchaser is not automatic or at the instance of the
seller as the Respondent
would want this Court to believe. The onus
lies on the Respondent to firstly prove that he had paid not less
than 50% of the purchase
price and thereafter demand that the
Applicants transfer the property into his name. That transfer would
only take place provided
there is a simultaneous registration of a
first mortgage bond over the property in favour of the Applicants for
the balance of
the purchase price including interest.
[30] A further argument raised by the
Respondent is that the Applicant failed to comply with the provisions
of section 19(3) of
the Act. That section falls within Chapter II and
is not applicable to the property hereby sold. This argument is not
pursued
by the Respondent in his heads of argument.
[31] It is against this background that
I now deal with the remedies available to the Applicants both in
terms of the agreement
as well as in terms of the Act.
CANCELLATION
[32] I am satisfied that the Respondent
breached the agreement when he for no reason stopped paying the
agreed monthly instalments
during April 2013. The letter sent to the
Respondent on the 27th May 2014 as in accordance with the provisions
of clause 9(1)
of the sale agreement.
[33] The Respondent failed to remedy
the breach within the time set out in the letter or at any later
stage instead he became argumentative
and started questioning a
number of clauses in the agreement. Clause 9.1.1. grants the
Applicants the right to cancel which they
did and I find nothing
wrong with that.
EVICTION
[34] In the notice of motion all that
the Applicants seek is that the Respondent be evicted. The notice of
motion says nothing about
what should happen to the amount of money
or instalments already paid by the Respondent to the Applicants now
that the sale agreement
has been cancelled. Section 28 of the Act
sets out various steps that can be followed or that should result
after cancellation.
[35] Section 28 reads as follows:
“(1) Subject to the provisions of
subsection (2), any person who has performed partially or in full in
terms of an alienation
of land which is of no force or effect in
terms of section 2(1), or a contract which has been declared void in
terms of the provisions
of section 24(1)(c), or has been cancelled
under this Act, is entitled to recover from the other party that
which he has performed
under the alienation of contract, and –
(a) the alienee may in addition recover
from the alienator –
(i) interest at the prescribed rate on
any payment that he made in terms of the deed of alienation or
contract from the date of
the payment to the date of recovery;
(ii) a reasonable compensation for –
(aa) necessary expenditure he has
incurred, with or without the authority of the owner or alienator of
the land, in regard to the
preservation of the land or any
improvement thereon; or
(bb) any improvement which enhances the
market value of the land and was effected by him on the land with the
express or implied
consent of the said owner or alienator; and
(b) the alienator may in addition
recover from the alienee -
(i) a reasonable compensation for the
occupation, use or enjoyment the alienee may have had of the land;
(ii) compensation for any damage caused
intentionally or negligently to the land by the alienee or any person
for the actions of
whom the alienee may be liable.”
[36] I have not been asked in this
application to pass judgment on the future of the amounts already
paid and I shall desist
from so doing.
[37] The application is granted and I
order as follows:
37.1 The Respondent and all that
occupying by, through or under the Respondent (if any) are hereby
evicted from the premises namely
PTN 1 of Erf 1……….,
V………, Ext 6 Registration Division I.R. Province
of Gauteng.
37.2 In the event the Respondents
refuse to vacate the premises aforesaid voluntarily the Sheriff of
this Honourable Court or his
duly authorised Deputy is hereby
authorised to forthwith do and take all steps necessary to evict the
Respondent and all those
occupying by, through or under the
Respondent (if any) from the premises.
37.3 The Respondent is ordered to pay
the costs of this application on a party and party scale.
DATED at JOHANNESBURG on this the 5th
day of JUNE 2015.
M A MAKUME
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
DATE OF HEARING 14TH JUNE 2015
DATE OF JUDGMENT 05TH JUNE 2015
FOR THE APPLICANTS ADV E LE ROUX
INSTRUCTED BY Messrs Steyn, Steyn &
Partners
22 Hurlingham Road Illovo
Tel: (011) 664 8528
Ref: C STEYN/nb/MAT2755
FOR THE RESPONDENT ADV Z MARX
INSTRUCTED BY Messrs Van Zyl Le Roux
Inc
Pretoria
Tel: (012) 435 9444
Ref: JB GRIMBEEK/J RABIE/md/mat57742