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[2017] ZAGPJHC 126
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Abigak 1 General Trading & Investment CC v Gani and Another; Gani and Another v Balkin and Others (1184/16; 6620/16) [2017] ZAGPJHC 126 (5 May 2017)
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Certain
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REPUBLIC
OF SOUTH AFRICA
GAUTENG LOCAL DIVISION
JOHANNESBURG
CASE NO. 1184/16
In
the matter between:
ABIGAK
1 GENERAL TRADING & INVESTMENT
CC
Applicant
and
GANI,
SHABBIR
AHMED
First
Respondent
GANI,
ZUBAIR
Second
Respondent
CASE
NO. 6620/16
In the matter between:
GANI,
SHABBIR
AHMED
First
Applicant
GANI,
ZUBAIR
Second
Applicant
and
TREVOR
M ICHAEL
BALKIN
First
Respondent
HARRY
GOODMAN
JANKS
Second
Respondent
GISHEN-GILCHRIST
ATTORNEYS
Third
Respondent
ABIGAK
1 GENERAL TRADING & INVESTMENT CC
Fourth
Respondent
THE
REGISTRAR OF DEEDS, JOHANNESBURG
Fifth
Respondent
JUDGMENT
: IN CASE NOs. 1184/16 AND 6620/16
BHAM AJ
[1]
This
is a judgment in both case number 1184/16 and case number 6620/16.
The applicants in case number 1184/16 seek an order for
the eviction
of the respondent's in that application from the immovable property
erf […] Malvern Township, Registration
Division I.R. Province
of Gauteng situate at […] J. Street, Malvern, Johannesburg
("
the
property
").
Case number 1184/16 is referred to as "
the
eviction application
".
The applicants in case number 6620/16 seek an order declaring the
sale of the property to the fourth respondent in
that application as
invalid and for ancillary relief. Case no. 6620/16 is referred
to as "
the
setting-aside application
".
[2]
I
heard the eviction application and the setting-aside application
together and deliver a single judgment in respect of both
applications
having justifiably been requested by both the parties to
deal with the applications together. The central issue in both
applications
is the same. Both applications substantially turn on and
can be decided by reference thereto.
[3]
For
ease of reference I shall refer to the parties as follows –
o
The
applicant in the eviction application, which is the fourth respondent
in the setting-aside application, as "
Abigak
";
o
The
first and second respondents in the eviction application, who are the
applicants in the setting-aside application, as "
the
Ganis
";
o
The
first and second respondents in the setting-aside application as
"
Balkin
"
and "
Janks
".
[4]
The
papers in the two applications are unnecessarily voluminous. The
issue upon which both applications turn is a narrow issue
of law.
The principle relating to that issue was established by the Appellate
Division (as it then was) as far back as 1985
and has subsequently
been followed by a Provincial Division of the High Court and by the
Supreme Court of Appeal.
[5]
On 21
January 2015, Abigak purchased the property from Balkin and Janks for
a purchase price of R450 000,00 pursuant to a written
Deed of Sale
which complied in all respects with section 2(1) of the Alienation of
Land Act, 68 of 1981 ("
the
Land Act
").
This agreement is hereinafter referred to as "
the
Property Sale Agreement
".
[6]
Subsequent
to the conclusion of the Property Sale Agreement, Janks refused to
take the necessary steps to give effect to the transfer
of the
property to Abigak. Consequently, Balkin brought an application
in this Court under case no. 16050/15 seeking,
inter
alia
,
that Janks be ordered to take the necessary steps to pass transfer of
the property to Abigak.
[1]
Prior to judgment
in Balkin's application, attorneys acting for the Ganis addressed a
letter to the third respondent in the setting-aside
application, from
which it was clear that the Ganis were fully aware of Balkin's
application. Yet, the Ganis took no steps
to intervene in that
application.
[2]
[7]
On 11
June 2015, an order was granted in Balkin's application in terms of
which,
inter
alia
,
Janks was ordered to take the necessary steps to pass transfer of the
property to Abigak. Balkin was always willing himself
to take
such steps. In the result, the property was transferred to
Abigak under Deed of Transfer T000041282/2015.
[8]
Abigak
consequently contends that it is the lawful owner of the property.
It has brought the eviction application because
the Ganis are
presently in occupation of the property and, despite having been
requested to do so, refuse to vacate the property.
[9]
The
Ganis have defended the eviction application and thereafter brought
the setting-aside application because they contend that
on account of
an oral agreement, they have an entitlement to the conclusion of "…
a
formal written agreement [to] be entered into between the parties in
order to transfer the property into [their] nominated family
trust."
[10]
Thus,
in addition to resisting the eviction application in the
setting-aside application the Ganis seek an order declaring the sale
of the property by Balkin and Janks to Abigak to be invalid, and
setting aside that sale. They also seek consequential relief
thereupon, including an order directing Abigak "…
to
facilitate the transfer of the property into the name of the [Ganis]
nominated trust upon the finalisation of
…" the setting-aside application.
[11]
The
essence of the contention on behalf of the Ganis is that sometime
during 2007 they concluded an oral agreement with Balkin and
Janks
("
the
oral agreement
").
The oral agreement they contend for is said to have numerous terms
relating to beneficial occupation, obligations for restoration
of the
property, the payment of outstanding rates and taxes, the payment of
an outstanding overdraft and maintenance of the property
and a
further term (material to these applications) which is stated as
follows in both the eviction application and the setting-aside
application –
"It was an
express and agreed condition that upon payment of all of the amounts
referred to …, a formal written agreement
will be entered into
between the parties in order to transfer the property into our
nominated family trust." ("
the
material oral agreement term
").
[12]
A
formal written agreement as envisaged in the material oral agreement
term has never been concluded.
[13]
Understandably
then, the riposte from Abigak was narrow and pointed. Abigak
contended that even if the oral agreement was
concluded and even if
the Ganis had performed their obligations in terms thereof (which
Abigak does not concede), the oral agreement
is unenforceable for
want of compliance with section 2(1) of the Land Act.
[14]
Counsel
for Abigak, advocate Leysath, in relation to this central issue,
relied on the judgment in
Hirschowitz
v Moolman and Others
[3]
in contending that
the central defence raised by the Ganis in the eviction application
and the central point relied upon by them
in the setting-aside
application was legally untenable and that this was dispositive of
the matter.
[15]
In
Hirschowitz
,
the following was stated:
"In general
a pactum de contrahendo is required to comply with the requisites for
validity, including requirements as to form,
applicable to the second
or main contract to which the parties have bound themselves. .."
[4]
[16]
Hirschowitz
was followed in
Docrat
v Willemse
[5]
and by the SCA in
Du
Plessis N.O and Another v Goldco Motor & Cycle Suppliers (Pty)
Ltd
[6]
and in
Van
Deventer v Ivory Sun Trading 77 (Pty) Ltd
.
[7]
[17]
In
the present case, the Ganis do not contend that prior to the
conclusion of the property sale agreement, Abigak had any knowledge
of the purported oral agreement. Nor do they suggest that the
terms of the oral agreement were registered against the title
deed of
the property. Consequently, they do not and cannot contend that
in the context of their attack against Balkin and
Janks (or one of
them) on various grounds, there was any complicity or involvement by
Abigak. Abigak, at the time it purchased
the property, was an
innocent purchaser which concluded an agreement for the purchase of
the property which complied with the provisions
of section 2(1) of
the Land Act. In response to Abigak's legal contention in
relation to the purported oral agreement, the
Ganis contention was
summed up as follows at the hearing of the matter by their counsel,
advocate Felgate as follows:
"... such
argument loses sight of the fact that the pactum de contrahendo
entered into by the Gani brothers, Janks and Balkin
had as its very
purpose the conclusion of a written agreement to effect the
'alienation' of the property, which would have resulted
in compliance
with the Act."
[18]
That
submission on behalf of the Ganis though misses the point. The
very problem faced by the Ganis is that the material oral
agreement
term, at best for the Ganis, constitutes a
pactum
de contrahendo
(and I make no finding on whether it actually does, as I need not
make such a finding) which was required to comply with the requisites
for validity, including in relation to form, which would have been
applicable for the sale of the property by Balkin and Janks
to the
Ganis "
nominated
family trust
".
Such requisites are set out in section 2(1) of the Land Act.
They were not complied with in terms of the oral
agreement nor
subsequent to conclusion thereof.
[19]
In
the result, the reliance by the Ganis on the material oral agreement
term (as an enforceable
pactum
de contrahendo
)
as a defence to the eviction application and as the foundation for
the relief sought in the setting-aside application, is unsustainable
in law.
[20]
Accordingly,
I make the following orders –
20.1.
In
case
no. 6620/16
–
20.1.1.
the
application is dismissed;
20.1.2.
the
applicants, jointly and severally, are ordered to pay the fourth
respondent's costs.
20.2.
In
case
no. 1184/16
-
20.2.1.
An
order is granted for the eviction of the first and second
respondents and all persons holding occupation through and
under
them from the immovable property referred to and legally
described as erf [...] Malvern Township, Registration Division I.R.,
Province
of Gauteng situate at [...] J. Street, Malvern Johannesburg,
Gauteng ("
the
property
").
20.2.2.
The
first and second respondents and all those who occupy the property
through and under them are ordered to vacate the property
and to
remove all vehicles parked by them on the property within a period of
fifteen court days from the date of the grant of this
order.
20.2.3.
If
the first and second respondents and any person who occupies the
property through and under them have not vacated the property
and
removed the vehicles parked by them from the property within a period
of fifteen court days from the date of the grant of this
order, the
Sheriff of this Court is hereby authorised and directed to carry out
the eviction order at any time after the expiry
of the fifteen-day
period by removing from the property the first and second respondents
and any such persons occupying the property
through them and under
them and all the vehicles parked by them on the property.
20.2.4.
The
first and second respondents are ordered to pay the costs of the
application, jointly and severally.
_________________________
A
E BHAM AJ
Heard: 25 April 2017
Judgment
delivered: ___ May 2017
Appearances
:
Under
case no. 1184/16, which is the fourth respondent under case no.
6620/16 – Advocate L C Leysath, instructed by
Gishen-Gilchrist
Incorporated.
For
Respondents, under case no. 1184/16 who are the applicants under case
no. 6620/16 – Advocate N Felgate, instructed by
N M Aboo
Attorneys.
[1]
Abigak and the Registrar of Deeds, Johannesburg
were also cited as parties to that application.
[2]
The significance thereof will be apparent from
the stance adopted by the Ganis in the central issue in this matter.
[3]
1985 (3) SA 739 (A).
[4]
At B-C.
[5]
1989 (1) SA 487 (N) 491-492.
[6]
2009 (6) SA 617
(SCA) para [19].
[7]
2016 (3) SA 532
(SCA) at paras [15]-[16].