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[2017] ZAGPJHC 375
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De Bruyn v Nel and Others (50948/11) [2017] ZAGPJHC 375 (9 May 2017)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO
: 50948/11
DATE
:
2017/05/09
In
the matter between
ANDRIES
DE
BRUYN APPLICANT
and
ANITA
HELENA NEL & 3
OTHERS RESPONDENTS
JUDGMENT
VICTOR
J
: The applicant in this matter seeks an order by way of
urgency to compel the first respondent to sign all documentation
necessary
to give effect to the sale and transfer of the property
known as portion 284, a portion of portion 12 of the farm The Willows
340
registration division JR Gauteng (The Willows) held by title deed
T9314/2000. He also seeks an order that the offer to purchase
must be
signed by the first respondent and if she refuses to give effect to
the court order then the second respondent, Deputy
Sheriff, be
ordered to give effect to the order and sign all the necessary
documentation. He also seeks an order that the rental
collected by
the first respondent be paid into the applicant’s attorneys
trust account and that he pay the local authority
the indebtedness of
the first respondent. Costs are sought on the attorney/client
scale.
This
matter has an acrimonious history. There was a dispute as to
whether the applicant and the first respondent were partners
in the
ownership of several properties. The property in question relates to
the Willows property.
The
matter was referred to a referee in terms of section 19 of the
Supreme Court Act 59 of 1959 and Adv N Davis SC was appointed.
The parties agreed that the Willows was owned in partnership. He made
the order that there was indeed a partnership in respect
of this
property and then he gave directions as to what should happen to the
Willows property. He ordered in paragraph 8.2
that the
plaintiff is dominus litus shall request the Institute of
professional valuers to appoint a valuer to determine the free
market
value of the property including its improvements as at 11 February
2013. He also ordered that the defendant, the first
respondent
in these proceedings, pay to the applicant one half of the net value
so determined after deduction of the outstanding
amount of the bond
as at 11 February 2013.
He
also ordered in paragraph 8.2.3 that should the first respondent be
unwilling or unable to pay the aforementioned amount within
30 days
from date of valuation, the property would be sold by the parties for
a price of no less than that determined by the valuator,
or such
other amount as the parties may agree in writing and that the net
proceeds are to be divided equally.
He
also ordered further that in the event that the Willows property
being attempted to be sold and no sale being concluded within
90 days
after the exercise of the first respondent’s election not to
retain the property, or such longer period as the parties
may
determine in writing, that the property be sold by way of public
auction.
The
property was indeed sold by way of public auction and it was made
clear to the purchasers at the public auction all the difficulties
relating to this property. It would seem that the property is
the subject of numerous contraventions in relation to zoning
rights,
building plans, electricity and the like. The rules of auction
and conditions of sale are attached to the papers
and the terms
thereof are, in my view, very clear. The first respondent was
reluctant to sell the property because of the
all the
contraventions.
I
deal first with the acceptance and confirmation in terms of 3.1.
The purchaser offered to purchase the property and that
is the fourth
respondent, on certain conditions and included in those conditions
was a clear understanding of the problems that
go with the property.
Clause 13 of the agreement defines the “
voetstoots
”
extent and representation clause. The property was sold
“
voetstoots
” and subject to the terms and
conditions of the servitudes and the beacons and the seller would not
be liable for any incorrect
description in the extent of the
property.
In
terms of Clause 13.2 of the “
voetstoots
” clause,
the purchaser also acknowledges that he has not been induced into
entering into this agreement by any express or
implied information,
statement or advertisement made by the auctioneer or anyone on his
behalf and the purchaser that is the fourth
respondent. He
acknowledged expressly that he fully acquainted himself with the
property that he has purchased and that he has
elected to purchase
the property and I emphasise “without fully acquainting himself
of herself with these conditions.”
In
other words, the purchaser was quite happy to accept all the risks
attached to purchasing the property and in this regard there
is an
affidavit on behalf of the fourth respondent and in paragraph 3.2 of
the affidavit of Mr Pieter Nel, who is an estate agent,
confirmed
that the purchasers at the auction were told that the zoning of the
Willows property was agricultural and that none of
the improvements
on this property had any registered building plans. That all
servitudes registered in the title deeds including
the road servitude
may be utilised by relevant authority in due course.
The
affidavit deposed to on behalf of the fourth respondent by Mr
Fransicus Gerhardus de Klerk, also makes it very clear that
he
has read the founding affidavit and he specifically states that he
was aware of all the relevant aspects pertaining to the Willows
property which was purchased by the fourth respondent on 7 March and
expressly confirms that these relevant aspects were raised
at the
auction.
In
support of the sale he says that the fourth respondent owns adjoining
property and that the fourth respondent has already paid
a
substantial deposit to the purchase on the property and that it is in
a position to comply with 2.3 of the offer.
It
was argued on behalf of the first respondent at the hearing and not
dealt with in the papers that the sale agreement must fail
because
the fourth respondent on behalf of the partnership, did not sign
timeously and therefore the suspensive condition has failed
and there
is no sale agreement in existence and that the application itself
must therefore fail.
I
was referred to two authorities on the question of the waiver of the
said provisions. I refer firstly to the case of
Impala
Distributors v Taunus Chemical Manufacturing Company
1975 (3) SA
273
(TPD) and I read from the footnote:
“
An already existing right of
action arising out of the breach of contract can also be waived
orally. An oral waiver is valid
but only by a party in regard
to a right which accrues exclusively to himself in terms of the
contract.”
This
was followed by the case of
Van As v Du Preez
1981 (3) SA 760
(T) at 674 where again, reference is made that to the English case of
Taylor and despite a non-variation clause the English approach
in
Taylor at 435 points out, namely, that:
“
Mere forbearance or concession
afforded by one party or the other for the latter’s convenience
and at his request is a forbearance
and not a variation bearing in
mind the non-variation clause in relation to the terms of auction.”
The
first respondent initially after the finding by the referee stated in
a letter by her attorney, that the first respondent continued
to
dispute the fact that there was a partnership in existence but that
particular point was not pressed in argument.
However,
the final defences of the first respondent seem to be contained in a
letter dated 10 March 2017. The first respondent
indicated that
she would have signed the agreement, save for the fact that she
cannot do so for reasons that followed. 2.1
Of the letter:
“
All the improvements on the
property are illegal and hence clause 23 of the agreement cannot be
complied with.”
Clause
23 of the agreement refers to the electrical installation certificate
of compliance and that is that the seller is required
to provide a
certificate of compliance in terms of the Electrical Installation
Regulations of 2009 and that the Occupational and
Health and Safety
Act 85 of 1993 and such a person issuing the certificate shall be a
registered person. The first respondent
contends that in no way
can there be compliance with that particular aspect of the
agreement.
Counsel
on behalf of the applicant quoted the provisions set out in the
particular Act and submits that the first respondent adopts
the
incorrect view in relation to clause 23 because the compliance
certificate is set out in Government Notice 258 of 2012 published
on
26 March 2012 and that the Electrical Installation Regulations are to
ensure the safety of persons are concerned who perform
the
installation work and sub-regulation (2)(1) the user or lessor of
electrical installation shall be responsible for safety and
maintenance of the electrical installation.
The
safety of the electrical installations has nothing to do with the
zoning, or not with the property, according to the applicant
and it
is common cause that all the improvements on the property were
erected contrary to the rezoning of the properties.
In
my view, the fourth respondent is fully aware of the contraventions.
It could not be more explicit as set out in the affidavit
on behalf
of the fourth respondent. The first respondent also requires
the purchaser to acknowledge in the sale agreement
that it is aware
of the conviction by the local authority against the property and
requires indemnification against any further
action in this regard.
In
my view, the sale agreement is clear in its terms. There is no
basis on which the purchaser can be required to take on
the
obligations and any punitive aspect that the first respondent is
liable to pay. The fourth respondent is aware of the
risks that
follows after the sale.
It
was submitted further by the first respondent that these clauses lead
her not to sign the agreement. The affidavit overtakes
this.
The purchaser is aware and has accepted the risks of the defects.
There
is a dispute about whether the revenue generated is R90 000.00
or R150 000.00 per month. Nothing turns on
that for the
purposes of this application save that the applicant seeks that all
monies that are paid and generated from these
lease agreements must
be paid over to the applicant’s attorney. Any further
debatement of that aspect can be done in
another forum and in a
different case.
As
indicated, the first respondent also seeks an express provision in
the agreement that the properties are illegal. I have
already
referred to the risk which the fourth respondent is prepared to
take. The first respondent also requires that the
purchaser is
liable to pay for all arrear rates in obtaining a rates clearance
certificate and that same should be for the purchaser’s
account.
The
applicant in response to that in the heads of argument submits that
there is no basis to include that particular aspect in the
sale
agreement. Clause 7.1 of the agreement stated specifically that
the seller shall be liable for all rates and taxes and
other
municipal taxes levied on the property for the period prior to the
occupation and the purchaser shall be liable for all rates
and taxes
levied thereafter. The payment of rates and taxes is levied
according to the statute The
Local Government Municipal Property
Rates Act 6 of 2004
and there is no basis in that statute that that
obligation should be taken over by the fourth respondent. In
fact, section
24 (1) of the Act referred to provides as follows:
“
A rate levied by the
municipality on a property must be paid by the owner of the property
subject to chapter 9 of the Municipal
Systems Act.”
The
owner means the name of the person registered at the time when the
rates and other costs accrued and of course it is clear from
the
papers that this must be the responsibility of the registered owner.
The
submissions by the applicant in relation to the fifth defence are
that the revenue generated from the lease agreements is illegal.
I
have already referred to the responsibilities taken over by the
fourth respondent. I have referred to the “
voetstoots
”
clause and in that regard it is quite clear to me that the purchaser
had known what it has taken on.
The
sixth defence is in relation to the rental received. The first
respondent’s defence in regard to that is really
that the
rental received is not R150 000.00 a month, but R90 000.00
per month. As indicated by the applicant it
only seeks all the
current money generated by the property be paid into the account of
the applicant’s attorney of record.
The
first respondent denies misappropriation of the rental income, but I
agree with the applicant that she has not given any detailed
explanation in relation to that. This is a partnership.
An order has been made. The four steps were set out by
the
referee as to what should happen and in this regard the first
respondent cannot hold onto that money even if there is a dispute
between herself and the Local Authority in relation to revenue.
Their account relates to agricultural property not urban
property.
It
seems to me that the applicant at every turn has had to resort to
litigation in order to progress his rights in this matter.
Even
as at the receipt of this application the first respondent had dug
her heels in and has either on her own, or on the advice
of an
attorney proffered various defences which must fail and cannot be
upheld in law. For example, after the referee made
the ruling
about the partnership she still continued to say that the Willows
property does not fall into the partnership.
I
have dealt in detail with her various defences. The fact that
the first respondent or her attorneys overlooked the express
terms of
the agreement and ignored the affidavit on behalf of the fourth
respondent means that unnecessary costs had been incurred
in this
matter. Once the application was received, there was no reason
for the first respondent properly advised on the terms
of that
auction agreement to put up these fatuous defences that she has.
In
the result, the costs on the attorney/client scale are justified in
these circumstances. Up to now it would seem that the partnership
has
had to pay for the litigation. But in this regard, this
application the partnership should not have to bear the costs.
The first respondent has been obdurate and has precipitated
unnecessary costs and therefore costs on the attorney and client
scale
are justified.
A
draft order has been handed up. I will make an order in terms
of the draft except that the word own client, the word “own”
must be deleted so it is simply costs on the attorney/scale.
The terms of this order must be implemented from today’s
date.
________________________
M
VICTOR
Judge
of the High Court