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[2016] ZAGPJHC 145
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Klingbiel v Olwagen (23891/2015) [2016] ZAGPJHC 145 (16 March 2016)

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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 23891/2015
DATE: 16 MARCH 2016
In the matter between:
CHRISTO
KLINGBIEL
...........................................................................................................
Applicant
And
RONIKA
OLWAGEN
............................................................................................................
Respondent
J U D G M E N T
KEIGHTLEY J
:
[1] This dispute arises out of an instalment sale agreement in terms
of which the applicant purchased certain immovable property,
being
Erf 9…, R… Extension 1, A…. (“the
property”) from the respondent (“the agreement”).

The parties are agreed that the agreement is one falling under
Chapter II of the Alienation of Land Act 68 of 1981 (“the

Act”).
[2] The applicant seeks an order directing the respondent to effect
transfer of the property to the applicant against payment by
him of
certain amounts, which effectively represent the balance of the
purchase price.  There is some dispute as to the exact
amount
the applicant should be ordered to pay.  This issue becomes
relevant only if the applicant succeeds in his order of
specific
performance against the respondent.
[3] The respondent opposes the application on the basis that he
validly cancelled the agreement following the applicant’s

breach.
[4] The present application was preceded by an urgent application
instituted by the applicant.  In that application, the court

interdicted the respondent from alienating the property, pending the
determination of this application.  It also ordered the

respondent to provide the applicant with source documentation
pertaining to the respondent’s mortgage bond account in respect

of the property, the municipal accounts in respect of the property,
and home owner’s insurance premiums paid by the respondent
in
respect of the property.  The costs of the urgent application
were reserved for determination by this court.
[5] The agreement was concluded on 31 March 2011.  It was part
of a series of agreements between the three parties, being
the
applicant, the respondent and a third party, one Grobler.  They
all appear to have been business associates or at least
associates of
some sort before things went sour between them.  Grobler is not
involved in the present litigation, and the
parties are agreed that
the agreement in respect of the property was independent of the other
agreements involving Grobler.
His involvement in the history of
the matter is only of tangential relevance to the present
proceedings, and I make no further
mention of it unless this is
necessary.
[6] The agreement included the following relevant terms:
[6.1] The purchase price of the property was R467 246. 43.  This
represented the outstanding amount owing under the mortgage
bond in
favour of Absa Bank registered against the property.
[6.2] The applicant was not required to pay a deposit.  However,
he was required to effect payment to the respondent each
month of an
amount equal to the mortgage bond instalment as “pre-described
by Absa Bank”, as well as interest thereon
“as
pre-described by Absa Bank”.
[6.3] The agreement did not specify these amounts.
[6.4] Payment of the monthly instalments was to be effected from 1
May 2011, with the whole of the purchase price being payable
on or
before 1 March 2031.
[6.5] The applicant was “obliged” to take transfer of the
property on or before 1 March 2031 against the prior or simultaneous

payment of all amounts owing under the agreement.
[6.6] The applicant was required to obtain guarantees for the balance
of the purchase price in the form of an insurance policy
against the
death of either of the parties.
[6.7] The applicant was entitled to take occupation of the property
from 1 March 2011.
[6.8] The risk, profit and loss in, and liability to pay rates in
respect of the property passed to the applicant on 1 March 2011.
[6.9] The agreement included a list of the applicant’s
statutory rights and obligations under the Act, as well as the
obligations
of the respondent.  Among those listed were the
applicant’s right to receive statements of account regularly
from the
respondent in the form prescribed.  This is in
accordance with section 16(3) of the Act.
[6.10] Clause 15 of the agreement dealt with breach.  In line
with the Act, clause 15 prescribed a notice period of thirty
days to
the defaulting party to remedy his or her breach.  Clause 15
read, in relevant part as follows:
“
In the event of either party committing and (sic) breach of
this contract the aggrieved party shall be entitled to give the
defaulting
party written notice … describing the defaulter’s
breach of contract, demanding that such breach of contract be
rectified
within not less than 30 (thirty) days from the date on
which such notice was handed to the defaulter … and indicating
the
steps the aggrieved party intends taking of (sic) the breach in
question is not rectified.
”
[6.11] The applicant was prohibited under the agreement to effect any
improvements to the property without the prior written consent
of the
respondent.
[6.12] Finally, the agreement included a non-waiver clause, providing
that any latitude by either party to the other under no circumstances

would be deemed to be a waiver of that party’s rights.
[7] It is common cause that the applicant’s son took occupation
of the property on behalf of the applicant as soon as this
was
permitted under the agreement, and that he has remained in occupation
since then.
[8] It is necessary to refer to one issue in terms of which Grobler
was involved.  It seems that Grobler sold a business or

businesses to the respondent.  As against the amount owned by
the respondent to Grobler, the latter claimed to have credited
the
respondent with the monthly amounts payable to respondent by the
applicant.  The applicant avers that this situation prevailed

until November 2012.  Thereafter, the association between
Grobler and the respondent took a turn for the worse, and Grobler

apparently terminated this arrangement.  This issue is somewhat
disputed.  Its relevance will become apparent later.
[9] On 26 August 2014 the applicant was served by the Sheriff with a
letter of demand from the respondent, via her attorneys.
I
shall refer to this as the August 2014 letter of demand.
[10] In this letter of demand, the respondent alleged a number of
breaches by the applicant of the agreement.  Only three
of the
alleged breaches are relevant to these proceedings.  These were:
[10.1]the applicant’s alleged failure to make any payments in
respect of the monthly bond instalments on the property;
[10.2]his failure to provide the guarantee, in the form of the
insurance policy; and
[10.3]his erection of improvements to the property without the
consent of the respondent.
[11] The final paragraph of the letter read as follows:
“
Having regard to your actions aforesaid, which constitute a
material breach of the Deed of Sale, dated 31 March 2011, we hereby
give you 30 days from date hereof to rectify each and every breach of
the Deed of Sale set out above, failing which we give you
notice that
the Seller intends terminating the contract, to recover possession
and occupation of the property and to retain as
roukoop or
pre-determinant damages payments made by you, in addition the seller
intends to sue for immediate payment of all monies
remaining owing in
terms of the Deed of Sale.
”
[12] It is the respondent’s case that August 2014 letter of
demand constituted notice in accordance with the breach provision
in
the agreement and that, on the applicant’s failure to remedy
the breaches, the respondent validly cancelled the agreement.

In contrast, the applicant points to the events that occurred
subsequent to his receipt of the August 2014 letter of demand to

place the validity of the respondent’s alleged cancellation in
dispute.
[13] In response to the August 2014 letter of demand, the applicant
wrote to the respondent on 9 September 2014 and raised the
following
pertinent issues:
[13.1]The applicant admitted that he was required to pay all
outstanding instalments from May 2011.  However, he pointed out

that the respondent’s letter of demand did not advise the
applicant as to the exact amount payable in terms of the outstanding

monthly bond instalments as at the 1 September 2014.  I note
that there appears to be a typographical error in the relevant

paragraph of the applicant’s letter where the year “2011”
is inserted at some points.  The final sentence
provides clarity
by indicating that the applicant requested a schedule setting out the
exact amounts payable in respect of each
monthly instalment from 1
May 2011 (calculated to include the fluctuating interest rates
applicable) up to and including 1 September
2014, i.e. a 41-month
period.
[13.2]The letter referred to an estimation based on the initial
instalment that was payable of R180 000 for the 41-month period.

As will appear later, this estimation was not correct.
[13.3]The applicant conceded that the insurance policy was not in
place.
[13.4]As far as the improvements were concerned, he acknowledged that
he had conducted necessary repairs to the property, but contended

that this was with the knowledge of the respondent, and that she had
condoned them.
[13.5]The applicant also requested clarity as regards the relief the
respondent intended to claim in the event that the applicant
failed
to rectify his breach.  He pointed out that the final paragraph
of the letter appeared to be contradictory in this
regard, as it
indicated that the respondent intended both to cancel the agreement
and to sue for immediate payment of all monies
owing thereunder.
In other words, the applicant pointed out that it was unclear whether
the respondent intended to cancel
or sue for specific performance in
the event that the applicant’s breach was not rectified.
[13.6]The applicant made certain settlement proposals, the details of
which are not necessary to record.  It should be noted,
however,
that from further correspondence, it appears that the respondent gave
some consideration to the settlement proposals.
[13.7]The applicant recorded that he was immediately prepared to
obtain the necessary bond finance to purchase the property, to
pay
the transfer duty and costs related to transfer, and to take transfer
of the property without delay.
[13.8]The letter ended by recording that as certain material
information was outstanding from the respondent, the
dies
for
the applicant’s performance was suspended.
[14] Approximately a week later, the respondent’s attorneys
responded by requesting certain information pertaining to one
of the
settlement issues made by the applicant in his letter of 9
September.  The applicant’s attorneys provided this

information by return email.  No response was received from the
respondent.
[15] On 19 September 2014, the applicant’s attorneys wrote
again to the respondent’s attorneys.  They recorded
that
while they appreciated that the respondent’s attorneys may be
awaiting instructions on the settlement proposals, the
applicant was
willing and able to perform in terms of the agreement “
in
all aspects
, including taking transfer of the property,
irrespective of whether your client accepts the settlement
proposal
”.  The letter further recorded that the
applicant intended to on-sell the property to his son, who had
already secured
the necessary loan facility.  Accordingly, their
client “
is in a position to perform and tenders to do so
”
(emphasis added).
[16] The applicant did not receive a response to this letter.
[17] A further letter was sent on behalf of the applicant on 30
September 2014 requesting an urgent response.  The letter

recorded once again that the applicant was in a position to meet the
performances required under the agreement and tendered to
do so.
However, it pointed out that he could not do so without the
respondent’s substantial reply to the letter of
9 September
2014.
[18] Eventually, after the lapse of almost a further full month, the
respondent’s attorneys replied.  This letter was
received
by the applicant’s attorneys on 28 October 2014 (“the 28
October letter of demand”).  In this letter,
the
respondent stated that:
[18.1]The full period for which the outstanding monthly instalments
were due was from 1 March 2011 to 1 October 2014, being a period
of
44 months;
[18.2]The outstanding amount due for this period was R200 126. 42,
together with R20 944. 15 in respect of homeowner’s insurance,

and R3 400 in respect of rates and taxes.  A schedule was
annexed detailing the amounts due in respect of monthly instalments

for this period.
[18.3]The respondent took note that the applicant was in a position
to make payment and had tendered same.  She demanded that
the
outstanding amounts be paid and cleared into her attorney’s
trust account by 16H00 on 28 October 2014, failing which,
the
agreement would be deemed to be cancelled with immediate effect.
[19] On the same day, the applicant’s attorneys responded.
They placed on record that the 28 August 2014 letter of
demand did
not contain the schedule of payments due.  This had only been
provided in the 28 October letter of demand.
They pointed out
that the Act required a 30-day notice period, and they submitted that
on a proper interpretation of the Act, their
client ought to have
been provided with 30 days from receipt of the payment schedule to
make the necessary payment.  The letter
also contended that it
was unreasonable to expect that payment could be effected of such a
substantial amount of money by close
of business on the day the
demand was made.
[20] In the circumstances, they disputed that the agreement would be
cancelled if payment was not made by close of business.
The
applicant’s attorneys recorded that they would make
arrangements with their client urgently to make payment of the amount

reflected in the schedule.
[21] The respondent’s attorney’s response was to confirm,
“as per our letter of 27 October 2014” that the
agreement
was cancelled.  It is perhaps worth noting that in this letter,
the respondent’s attorneys stated that the
applicant had been
required to remedy his breach by 8 October 2014.  The
calculation of this date is not explained.
[22] Further correspondence followed.  It is not necessary to
record all the details, save to refer to one further development.
[23] On 25 November 2014 the applicant’s attorneys advised
respondent’s attorneys in a letter that they currently held
the
amount of R229 179.50 in trust for the benefit of their client with a
view to such amount being paid to respondent.  This
was subject
to the following:
[23.1]verification of the amounts claimed by the respondent;
[23.2]respondent’s withdrawal of her purported cancellation;
and
[23.3]confirmation from the respondent  that she would pass
transfer of the property to applicant.
[24] The respondent was not moved by this, confirming that the
agreement had been cancelled and requesting the applicant to vacate

the property.
[25] The correspondence reflects that at this stage the battle lines
were drawn between the parties with the respondent claiming
that she
had validly cancelled the agreement, and the applicant contending
that the purported cancellation was not valid, and that
the agreement
persisted.  Ultimately, this led to the urgent application in
order to secure the applicant’s position
pending the final
resolution of the matter.
[26] The primary question before me is whether the respondent’s
purported cancellation of the agreement was valid or not.
There
are two sub-questions in this.  First, was the applicant
lawfully placed in
mora
, in terms of the 30-day notice period
required under the Act and the agreement, in respect of the
non-payment breach?  Second,
and even if the answer to this is
in favour of the applicant, i.e. that he was not lawfully placed in
mora
as regards the non-payment breach, was the respondent
entitled nonetheless to cancel the agreement on the basis of the
applicant’s
breach of his insurance policy obligation, and his
breach of the prohibition against improvements to the property?
[27] Perhaps sensing that the respondent may have difficulty in
persuading the court that she had complied with the 30-day notice

period provision in respect of the non-payment breach, at the hearing
of the matter counsel for the respondent indicated that his
primary
contention was that the insurance policy and improvements breaches by
the applicant on their own gave the respondent a
legal basis upon
which to cancel the agreement.  He submitted that both of these
breaches were clearly identified in the August
2014 letter of demand,
and that neither had been remedied within the 30-days, or indeed at
all.  He submitted further that
neither of these breaches
required the respondent to provide any further information to the
applicant.  Accordingly, so he
contended, even if the court
found that the 30-day period in respect of the non-payment breach
could only lawfully commence when
the respondent had provided the
applicant with a statement of the amounts due, the same could not be
said for the other two breaches.
On this basis, so the argument
concluded, the respondent was entitled to cancel the agreement solely
on the basis of the insurance
policy and prohibition on improvement
breaches, and that she had so cancelled.
[28] If this submission is correct, there would be no need for me to
consider the issues in dispute in relation to the non-payment
breach.
[29] Having considered the matter, it seems to me that it is not
possible to reach a resolution on the approach adopted by the

respondent.  It is clear from the events as they unfolded that
until the respondent filed her answering affidavit in the present

application, the focus of both parties was on the non-payment
breach.  It was this breach that drove the dispute between them

and, as I demonstrate below, it was this breach that ultimately led
to the purported cancellation of the agreement by the respondent.
[30] As far as the non-payment breach is concerned, it seems to me
that there is merit in the applicant’s contention that
the
respondent failed to give the applicant the requisite 30-day notice
before purporting to cancel the agreement.
[31] Our common law requires that in order to place a debtor in
mora
,
the creditor must give him or her an unequivocal and unconditional
demand for performance within the specified time.
[1]
The intention to cancel in the event of non-performance must also be
made clear.  While a debtor is assumed to know
the origin of the
debt in respect of which performance is demanded, the creditor may be
under an obligation to make this clear
in the letter of demand.
[2]
It has been held in this regard that:
“
A debtor ought to know what is due by him to his creditor,
but according to our law it is the duty of the creditor to go to the
debtor and demand from his debtor what is due to him, and when making
that demand the debtor is entitled to know upon what score
the
creditor claims the money.  It is not sufficient for the
creditor to go to the debtor and say: ‘You owe me £20,

and if you do not pay me the £20 I will sue you.’
He must state on what score that £20 is due
.
”
[3]
(emphasis added)
[32] This common law principle  finds additional statutory
support in cases, like the present, involving instalment sale
agreements in respect of land.  Section 16 of the Act places
express obligations on the seller to provide the purchaser with

detailed statements of account.  These obligations are as stated
as follows:
“
(1)While a contract is in force, the seller shall free
of charge hand to the purchaser a
statement of account
or send such statement by registered post to him at his address
referred to in section 23, not later than 12 months from the date
of
the contract and thereafter within 30 days of the end of
each
successive period of 12 months
following on the date of
the first statement of account.
(2) In the first said statement there shall be indicated the
purchase price and other costs separately which were owing in terms

of the contract at the date of the contract or, in any other
statement,
the outstanding balance which was owing
in terms of
the contract at the date of the previous statement and, in all
statements-
(a)
the
interest and other
costs which accrued
in terms of the contract during the
period covered by the statement;
(b)
the allocation, in respect of
capital interest and other costs separately, of amounts paid during
that period in terms of the contract;
(c)
the balance of the purchase
price and other costs owing
in terms of the contract at
the end of that period;
(d)
the amount, if any, payable in
respect of any endowment, betterment or enhancement levy, a
development contribution or any similar
imposition in terms of any
law in relation to the land at the end of that period;
(e)
if the land is encumbered with a
mortgage bond
or mortgage bonds-
(i)   but not together with other land,
the
amount owing under that mortgage bond
or those mortgage bonds at
the end of that period; or
(ii)   together with other land, the
proportionate amount, calculated in accordance with the provisions of
section
9 (3) (b), owing under that mortgage bond or those mortgage
bonds in respect of the land at the end of that period;
(f) the amount, if any, owing at the end of that period in
terms of any alienation of the land in question before the time the
contract
was concluded.
”
[33] It is common cause that in the present case the respondent did
not furnish the applicant with the requisite statements of
account.
An account was belatedly provided to the applicant two months after
the August 2014 letter of demand, i.e. two months
after the demand
was made for the applicant to effect payment of outstanding amounts
within 30 days, and long after the initial
30-day period had
expired.  It is also common cause that the agreement itself gave
no indication of the amount of the monthly
instalment payments that
were to be made.  In terms of the agreement, these amounts were
as determined by Absa Bank.
Furthermore, they were subject to
fluctuating rates of interest as charged by the bank.
[34] The respondent contends that this is of no assistance to the
applicant. She submits that the applicant could have found out
from
Grobler what amounts he was paying to the respondent.  I find no
merit in this submission.  It is contrary to the
common law
principle that in order to validly  place a debtor in
mora
,
a creditor must state what amount is due and how it is calculated.
This is more especially so in circumstances where the
Act has placed
a statutory duty on the respondent to render accounts to the
applicant.  The agreement expressly noted the
applicant’s
rights and the respondent’s obligations in this regard.
The respondent had a clear obligation to
properly advise the
applicant of the amount due, and how this was made up when demanding
payment.
[35] It follows that in these circumstances the applicant was not
placed in
mora
in respect of the non-payment breach by virtue
of the letter of demand of August 2014.  I agree with the
submissions made
by the applicant that the notice period of 30-days
could only properly have commenced on 28 October 2014, which is the
date on
which the respondent provided the applicant with the
necessary details of the debt that was due.  At the same time as
providing
these details, the respondent demanded payment by the end
of the same business day, and when payment was not made as demanded,
the respondent purported to cancel the agreement.  That
cancellation was premature and invalid.  Under the Act, and
under
the agreement, the respondent was only validly entitled to
cancel the contract on the expiry of a 30-day notice period
calculated
from 28 October 2014.
[36] Accordingly, I find in favour of the applicant as regards the
issue of the non-payment breach.
[37] The remaining question is whether the respondent is correct in
her contention that even if there was not a valid cancellation
of the
agreement on the basis of the non-payment breach, she was nonetheless
entitled to cancel the contract by virtue of the applicant’s

breach of his insurance policy obligation and the prohibition on
improvements.
[38] While the respondent’s submissions in this regard may have
some superficial appeal at the level of principle, this is
lost when
the issue is considered in the context of the events that actually
took place.
[39] It is indeed so, as the respondent points out, that the August
2014 letter of demand clearly identified the insurance policy

obligation and the prohibition against improvements in the list of
breaches allegedly committed by the applicant.  It is also

correct that the applicant did not deny that he had not yet obtained
the insurance policy and that his performance was outstanding
in this
regard.  However, in my view, this does not ineluctably lead to
the conclusion that the agreement was validly cancelled
on this
basis.
[40] A careful consideration of the events that took place
demonstrate quite clearly that the insurance policy and prohibition

on improvement breaches were identified only once by the respondent
in the entire saga leading to her purported cancellation of
the
agreement.  As I have indicated, this was in the letter of
demand of August 2014.
[41] Critically, however, it is also quite clear from a consideration
of the correspondence exchanged that what precipitated the

cancellation of the agreement by the respondent was the applicant’s
failure to comply with the demand contained in the 28
October letter,
viz. the demand that payment of the amounts outlined in that letter
be made by 16H00 on that same day.
[42] This is significant because it shows that the real reason for
the cancellation was the applicant’s non-payment breach,
more
specifically, his failure to pay the amount demanded by 16H00 on 28
October 2014.  In other words, the relevant letter
of demand,
leading directly to the purported cancellation, was the letter of 28
October 2014, and not the letter of demand of 26
August.  The 28
October letter of demand made no reference to any other breach as
being the basis for cancellation.
Accordingly, in my view, the
fact that the earlier letter identified the applicant’s
insurance policy and prohibition on
improvements breaches does not
assist the respondent.  The facts establish that the respondent
did not cancel the agreement
on the basis of these breaches.
She cancelled them because the applicant failed to pay the amounts
demanded on 28 October
2014.
[43] The respondent submitted that the principal of
falsa causa
non nocet
is applicable in this situation, and supports the
validity of the respondent’s cancellation.  The principle
provides
that where a party seeks to terminate an agreement and
relies on the basis of a wrong reason to do, she is not bound by that
reason.
She is entitled to take advantage of the existence of
any other justifiable reason for termination, nothwithstanding the
wrong
reason she may have given.
[4]
In other words, respondent’s submission is that regardless of
the reasons given for the cancellation following the
events of 28
October 2014, the respondent was entitled to cancel on the basis of
the insurance policy and improvements breaches.
[44] I am not persuaded on the facts of the present case that the
principle takes the respondent’s case much further.
[45] As I have already stated, both the Act, and the agreement
required the respondent to place the applicant in
mora
for a
period of 30 days before she could validly excerise the rights
available to her on the applicant’s breach.  The
common
law requires that there must be a clear and unequivocal notice that a
creditor intends to cancel the agreement on failure
of a debtor to
perform within the time specified.  I noted earlier that in the
applicant’s response to the August 2014
letter of demand, he
pointed out that respondent’s intentions regarding the relief
she intended to seek were contradictory.
That the letter
recorded that the respondent appeared intent on seeking both specific
performance and cancellation of the contract
in the event of
applicant not rectifying his breach.  The applicant requested
clarity in this regard.  This clarity was
not forthcoming until
the letter of 28 October, when the applicant was advised that if
payment was not made by the end of that
day, the respondent would
cancel the agreement.
[46] It seems to me that in these circumstances the applicant was
justified in seeking clarity.  He needed to know what the

respondent’s intentions were if the breaches were not
rectified.  He continued to tender full performance, and he
continued
to request the respondent to respond to his letter of 9
September 2014.  The respondent’s failure to respond until
28
October 2014 is evidence of the fact that the respondent did not,
until the latter date, convey to the applicant her unequivocal

intention to cancel.
[47] In addition, it is significant that in all of the following
exchanges of correspondence, the respondent gave no indication

whatsoever that she intended to rely on the applicant’s
insurance policy and prohibition of improvements breaches as
self-standing
bases upon which she intended to cancel the agreement.
On the contrary, these breaches seem to have fallen off the
respondent’s
radar until she filed her answering affidavit.
The events post-26 August 2014 showed that all attention was focused
on the
issue of non-payment.
[48] The applicant sought to argue that this was indicative of a
waiver on the part of the respondent that she intended to rely
on
these grounds of breach.  In my view, it is not necessary to
determine the issue on the basis of waiver.  The conclusion
to
be drawn from the facts, and particularly the facts subsequent to the
letter of demand of August 2014, is that the respondent
failed to
give the applicant unequivocal notice that if he failed to provide
the insurance policy, or failed to remedy his breach
in respect of
the improvements within 30 days, the respondent would cancel the
agreement
on those bases alone
, and
regardless of the
applicant’s performance in respect of the primary issue
,
viz. the payment of the outstanding amounts due.  If this was
ever the intention of the respondent, it was not unequivocally
and
clearly communicated to the applicant.
[49] Had this intention been made clear to the applicant, the
respondent would have been validly entitled to cancel on the basis
of
those breaches.  This would have constituted an alternative
justifiable reason for the respondent’s cancellation
in
accordance with the
falsa causa non nocet principle
.
However, this did not occur.  In fact, the respondent’s
attitude in her letter of the 28 October 2014 was very
clear: she
would cancel if the applicant did not pay the amount demanded by the
close of business on that day.  At no stage
did she
unequivocally communicate to the applicant that even if payment of
the outstanding amounts was effected, she intended to
cancel on the
basis of the other breaches.  There was nothing in her conduct
that gave any intimation to the applicant that
this was her
intention.
[50] For this reason, too, I find that the respondent was not
entitled to cancel the agreement on the basis of the applicant’s

breaches in respect of the insurance policy and the improvement
prohibition.
[51] Accordingly, the applicant is entitled to an order of specific
performance enforcing the agreement against the respondent.
Of
course, this means that the applicant must be ordered to comply with
his obligations in terms of payment of the outstanding
amount due to
the respondent, so that transfer may be effected.
[52] It remains to determine what this amount ought to be.  The
parties are agreed that the outstanding amount from May 2011
to
November 2014 is R195 289. 45, and that as at July 2015, when the
application was instituted, the amount outstanding was R233
260. 29.
The monthly instalments are agreed to be R4758. 83.
[53] Two issues remain in dispute.  The first is that the
applicant claims that he is entitled to a deduction of an amount
of
98 671. 76.  This was the amount that Grobler claimed to have
credited to the respondent in the circumstances I referred
to
earlier.
[54] The applicant avers that in terms of an agreement between the
three parties, these credits were to be set-off against the
amounts
owing by the applicant to the respondent under their agreement.
Alternatively, the applicant avers that in terms
of a
stipulatio
alteri
between the three parties, the applicant was to receive
the benefit of these payments.
[55] This is disputed by the respondent, who points out that a debt
owed by the respondent to Grobler could not be set off against
a debt
owed by applicant to respondent.  As regards the alleged
stipulatio alteri
, the respondent submits that the applicant
fails to make out a proper case in this regard.  In particular,
the applicant presents
no evidence to establish that there was a
clear intention on the part of the respondent and Grobler to conclude
an agreement in
favour of the applicant.  The respondent points
out the existence of a
stipulatio alteri
was not pleaded in
the applicant’s founding affidavit, and was only referred to in
reply.
[56] I am in agreement with the respondent’s submissions in
this regard.  The facts also do not support the applicant’s

case.  In response to the letter of demand of August 2014, the
applicant admitted that payment for the full period from 1
May 2011
was outstanding.  It was only later that he made reference to
payments made on his behalf by Grobler.  Had there
been an
agreement between the three parties that Grobler would pass credits
to the respondent as against amounts the applicant
owed to the
respondent, then I would have expected the applicant to rely on this
from the word go.
[57] In any event, the applicant has tendered payment of the amount
owing for the full period in the event that I do not allow
the
deduction.  In my view, the applicant must be ordered to pay the
full amount, without the benefit of the deduction.
[58] The second remaining issue relates to the end-date of the
computation period for the arrear amounts that the applicant must
be
ordered to pay.  The applicant contends that as at 25 November
2014 he had notified the respondent that the full amount
due up to
that date had been paid into his attorneys trust account.
Payment of this amount was tendered to the respondent
subject to the
respondent withdrawing its cancellation and confirming that she would
transfer the property to the applicant.
The applicant submits
that in these circumstances he should only be ordered to pay the
arrears up to that date.  The respondent
on the other hand
submits that the applicant should be ordered to pay the full amount
of arrears up to the date on which this court
makes an order.
[59] Once again, I agree with the respondent’s submissions in
this regard.  It is common cause that the applicant is
under an
obligation to make monthly payments to the respondent.  This is
an ongoing obligation, until the full amount of the
purchase price
has been paid.  The fact that the applicant paid a fixed amount
into trust does not detract from the existence
of his ongoing legal
obligation in this regard.  If the agreement is valid, as I have
held it to be, then the applicant must
comply with his legal
obligations.  This means he must pay the full amount of arrears
calculated up to the date of the order
made by this court, based on a
monthly payment of R4758. 83.
[60] Finally, the question of costs. The applicant has ultimately
succeeded in securing the continued existence of the agreement

between him and the respondent.  This was the focus of the
urgent application, and in my view, the applicant ought properly
to
be awarded the costs in the urgent application on the ordinary scale.
[61] In the matter before me, however, the spoils between the parties
were more evenly divided.  While the applicant succeeded
on the
main issue, he has not succeeded in securing a reduction in the
amount owing on either of the two bases put forward by him.

This represents a not insignificant victory for the respondent.
In my view, it would be just to order that each party is
to pay its
own costs in the main application.
[62] I make the following order:
1. The applicant is ordered to pay to the respondent, within 7 days
of the date of this order, R271 330, 93 (made up of the amount
of
R233 260. 29, being the outstanding amount due to the respondent as
at July 2015, plus the amount of R38 070. 64, being the
further
amounts outstanding for the period of eight months from July 2015 up
to and including the date of this order, calculated
at the rate of R
R4758. 83 per month);
2. Upon the applicant providing the respondent with proof, to the
reasonable satisfaction of the respondent, that he has secured
a
mortgage bond, bank guarantee or other form of security or funds
sufficient to cover the balance of the purchase price and the
fees
and costs attendant on transfer, the respondent is directed to sign
all documents and to do all things necessary to give effect
to the
registration of transfer of the property known as Erf 9…., R…
Extension 1, held under Title Deed number
T6…... situated at
2… J…. V….. B….. Street, R…., A…..
(“The property”),
failing which the Sheriff of this court
is authorised to sign all such documents and to do all things
necessary to give effect
to such transfer on the respondent’s
behalf.
3. The respondent is ordered to pay the costs of the urgent
application heard under case number 44488/2014.
4. Each party is to pay his or her own costs in this application.
R KEIGHTLEY
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Date Heard: 24
February 2016
Date of Judgment: 16 March
2016
Counsel for the
Applicants: J C Viljoen
Instructed by: Stupel and
Berman Inc
Counsel for Respondent: E
Fasser
Instructed by: Strauss De
Waal Attorneys
[1]
Christie
Law of Contract
(6ed)at p526,p527
[2]
Kerr
Principles of the Law of Contract
(6ed) at p621
[3]
Maltz v Meyerthal1920 TPD 338
[4]
Putco Ltd v TV & Radio Guarantee Co (Pty) Ltd
1985 (4)
SA 809
(A);
Datacolour International (Pty) Ltd v Intamarket (Pty)
Ltd
2001 (2) SA (SCA);
Telcordia Technologies Inc v Telkom SA
Ltd
[2006] ZASCA 112
;
2007 (3) SA 266
(SCA).