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[2016] ZAGPJHC 79
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Cooper v Clark (2015/31475) [2016] ZAGPJHC 79 (29 April 2016)
SAFLII
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Certain
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 2015/31475
DATE: 29 APRIL 2016
In the matter between:
COOPER:
DHANMATHIE
.....................................................................................................
Applicant
And
CLARK:
PAULA
...................................................................................................................
Respondent
JUDGMENT
ADAMS AJ:
[1]. This is an application by the
applicant for an order that the respondent refunds to her the amount
of R330,000.00, being in
respect of a deposit paid by the applicant
in terms of an Agreement of Sale of immovable property. The main
dispute between the
parties is whether or not a valid and enforceable
contract of sale came into existence. Put another way, the question
is whether
the respondent accepted, as required by law, an offer to
purchase made by the applicant, which resulted in the conclusion of a
contract?
[2]. On or about the 5th June 2015 the
applicant made to the respondent a written offer to purchase [Erf
1…….] [M…….]
Township (‘the
property’) for the purchase price of R6,300,000.00. The offer
provided that same is irrevocable until
midnight on the 10th June
2015. Under the heading ‘Terms and / or Conditions’,
clause 14 of the written offer provided
as follows:
‘Building inspector to inspect
the property at the purchaser’s costs within 14 days of the
offer being accepted. The
defects checklist signed by the seller
forms part of this agreement and the purchaser has received a copy of
this document’.
[3]. On the 10th June 2015 the
respondent purported to accept the offer by the signing of same as
the seller. However, at the same
time that she signed the acceptance
she effected certain amendments to the written offer sent to her.
Firstly, the respondent deleted
a portion of a clause, which provided
thus:-
‘If the suspensive conditions
referred to in Paragraph 6 and, if applicable Paragraph 14, are not
fulfilled and subject to
the purchaser not being in breach, Adrienne
Hersch Properties CC shall refund to the Purchaser the deposit from
which a fee will
be recovered for the administration of the Trust
Account’.
[4]. Secondly, to clause 14, which is
the clause with the heading ‘Terms and / or Conditions’
the following provision
was added
‘This is not a suspensive
condition and the acceptance of the offer will result in a binding
agreement of sale’.
[5]. On or about the 12th of June 2015
the applicant paid the deposit of R630,000.00, and thereafter she
received a copy of the
offer to purchase as signed and amended by the
respondent. Shortly after receipt of the signed and amended ‘Offer
to Purchase’
from the respondent, the applicant advised the
respondent that she does not accept the changes which were affected
to the offer
by the respondent.
[6]. On the basis of the aforegoing,
the applicant is of the view that she is entitled not to proceed with
the sale and she advised
the respondent accordingly on the 22nd June
2015. The respondent’s insertion to and the amendment of the
offer to purchase,
so the applicant contended, amounted to a counter
– offer, with the result that no binding agreement came into
existence.
Accordingly, the whole amount of the deposit should be
repaid by the respondent to the applicant.
[7]. Prior to the launching of the
application, the respondent refunded to the applicant the amount of
R300,000.00 of the R630,000.00
deposit, leaving a balance due of
R330,000.00 which is the amount which the applicant claims in these
proceedings.
[8]. The respondent opposed the
application on the basis that a binding agreement of sale came into
being. The respondent contends
that having regard to a number of
factors, notably the fact that the applicant paid the deposit and
requested that an addendum
to the sale agreement be prepared, the
applicant had accepted that a binding contract came into existence.
Therefore, so the respondent
maintains, she is entitled to retain the
R330,000.00 in terms of the breach clause in the contract which
provides that she has
the right to retain the remaining deposit as
rouwkoop or penalty or as liquidated damages.
THE LAW
[9]. It is trite that in the case of a
written contract, the party alleging same must prove that the other
contracting party had
agreed to the written contract in its final
form. In that regard see: Da Silva v Janowski,
1982 (3) SA 205
(A).
[10]. Also, conditional acceptance of
an offer amounts to rejection of same and not conclusion of a
contract, but may be a counter
– offer. In Command Protection
Services (Gauteng) (Pty) Limited t/a Maxi Security v South African
Post Office Limited,
2013 (2) SA 133
(SCA), the Court held that when
parties conclude an agreement while there are outstanding issues
requiring further negotiation,
two possibilities would follow: no
contract formed because the acceptance was conditional upon
consensus, or a contract formed
with an understanding that the
outstanding issues would be negotiated at a later stage. In that case
the court found that no final
agreement had been reached, and a
binding contract would only come into existence upon the successful
finalisation of the negotiations.
In summary the court found that the
letter of appointment was not an unconditional acceptance of the
tender, but intended by the
Post Office and accepted by Maxi as a
counter-offer, and the agreement that then came into existence was an
agreement to negotiate.
[11]. In Rockbreaker and Parts (Pty)
Limited v Rolag Property Trading (Pty) Limited,
2010 (2) SA 400
(SCA), a written offer to purchase property was signed by the
respondent, the purchaser, on 20 October 2005 and by the appellant,
the property owner, on 25 October 2005. The seller added the
following words in manuscript: 'This offer is accepted subject to
the
seller obtaining registration of the subdivision of the property.'
The manuscript insertion was neither initialled nor countersigned
by
the respondent.
[12]. The SCA held from the authorities
that, if the manuscript insertion embodied a material alteration to
the contractual terms
and thus constituted a counter-offer that was
never accepted in writing, then the contract would be unenforceable.
(Paragraph [8]
at 404F/G - H.). The court held further that the
insertion of the clause in manuscript served to protect the appellant
from an
action for damages in the event that the subdivision did not
materialise. There was therefore no doubt in the circumstances of the
case that the manuscript insertion was material and amounted to a
counter-offer. (Paragraph [9] at 404I - 405A.).
APPLYING THE PRINCIPLES TO THE FACTS
IN CASU
[13] Having regard to the principles
set out above, and applying these principles to the facts of this
case, I am of the view that
the respondent’s alteration to the
offer by the applicant materially altered the intended contractual
terms. Her alterations
amounted to a counter – offer, which was
not accepted by the applicant, which means that no binding contract
came into existence.
[14] The point is that the respondent
appreciated that clause 14 of the applicant’s offer, that being
the provision relating
to the inspection of the property by a
Building Inspector within 14 days of the offer being accepted, was at
least capable of being
interpreted as a suspensive condition. With a
view to eliminating the risk of this possibility materialising, the
respondent inserted
the addition to clause 14.
[15] I am, therefore, of the view that,
in the circumstances of this case, there can be very little, if any
doubt that, the manuscript
insertion by the respondent was material
and amounted to a counter-offer.
[16] I therefore intend granting
judgment against the respondent in favour of the applicant for the
amount of R330,000.00, together
with interest thereon as prayed for
in the Notice of Motion.
ORDER
In the circumstances I make the
following order:
1. The respondent shall pay to the
applicant the amount of R330,000.00 (three hundred and thirty
thousand rand).
2. The respondent shall pay to the
applicant the interest on R330,000.00 (three hundred and thirty
thousand rand) which has accrued
on the said amount by virtue of its
investment in an interest bearing trust account pending the
resolution of this dispute.
3 The respondent shall pay the
applicant’s taxed or agreed party and party costs.
L ADAMS
Acting Judge of the High Court
Gauteng Local Division, Johannesburg
HEARD ON: 28th April 2016
JUDGMENT DATE: 29th April 2016
FOR THE APPLICANT: Adv K D Iles
INSTRUCTED BY: Werksmans Attorneys
FOR THE DEFENDANT: Adv R J Stevenson
INSTRUCTED BY: Clark Attorneys