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[2019] ZAGPJHC 236
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Badela obo Estate Late Christian Malila Ndou v Harding and Others (28732/2017) [2019] ZAGPJHC 236 (4 June 2019)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO.: 28732/2017
In
the matter between:
BADELA:
SIBONGILE MURIEL
obo
ESTATE
LATE CHRISTIAN MALILA
NDOU
Applicant
And
DAVID
SEAN
HARDING
First
Respondent
REGISTRAR
OF DEEDS, JOHANNESBURG
Second
Respondent
SHERIFF
BOKSBURG
Third
Respondent
MASTER
OF THE HIGH COURT,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Fourth
Respondent
JUDGMENT
BOKABA AJ
1.
This is an application for an order that the sale
of land agreement in respect of a property described as [...] L.
Street, Boksburg
entered into between the late Christian Malila Ndou
and the respondent is valid, and that the first respondent be
directed and
ordered to sign all necessary transfer documents in
order to effect transfer of the property described as Erf
[...] Boksburg
South into the Estate of the Late Christian
Malila Ndou. Further that in the event of the first respondent
failing to effect
such transfer, then the Sheriff of the Court in
whose area of jurisdiction the property is situated be directed and
ordered to
sign all necessary transfer documents in order to effect
transfer of the property.
2.
The applicant is the surviving spouse and the
executor of the Estate of the Late Christian Malila Ndou with whom
she was married
in community of property at the time of his death on
12 January 2014.
3.
The claim for the transfer of the property is
based on a written sale and rental agreement which was concluded
between the Late
Mr Ndou and the first respondent on 1 March
2002. The purchase price and the rental were to be paid in
monthly instalments
over a period of 12 months commencing
1 March 2002 and ending 28 February 2003. Some of the
material terms
of the agreement have been captured as follows:
3.1.
The
property has been sold by the seller to the purchase for R200 000
(two hundred thousand rand) that will be paid in instalments
each
month within a period of one (1) year, incurring an agreed interest
of 7.5% for the total amount. Therefore the purchase
price at
the end of one (1) year period (28 February 2008) will be
R215 000 (two hundred and fifteen thousand rand).
This
agreement will commence as at 1 March 2002.
3.2.
A
reduced rental has been agreed upon. This amount is R2 500
(two thousand five hundred rand) per month. The original
rental
would have been approximately R3 500 (three thousand five
hundred rand) if this sale agreement had not been entered
into.
3.3.
Payments over and above the monthly rental will be
paid to the seller each month - ranging between R15 000 (fifteen
thousand
rand) and R20 000 (twenty thousand rand), the full
payment of R215 000 (two hundred and fifteen thousand rand)
excluding
rental payments must be paid to the seller before the 1
st
March 2003. The seller reserves the right to
accept the lesser amounts of purchase payments from the purchaser on
a monthly
basis, as long as the full amount of R215 000 (two
hundred and fifteen thousand rand) is paid within the year period as
mentioned
above.
3.4.
Should
the purchaser default, the seller is under no obligation to refund
any sums of money to the purchaser whatsoever. However,
negotiation into this matter may be considered, without prejudice to
the seller’s initial rights.
3.5.
Transfer of the property will be at the
purchaser’s expense and may only materialise once the purchaser
has paid all outstanding
payments to the seller as agreed herein.
4.
The sale and purchase of the property was
confirmed by the first respondent in a letter dated 27 November
2002 which reads
as follows –
“
To whom
it may concern
RE:
PURCHASE OF PROPERTY
– [...] L. STREET, BOKSBURG 1460
Dear Sir/Madam,
This letter, signed by the current
registered owner of the abovementioned property, serves to confirm
that Mr Christian Malila
Ndou (ID …) has purchased and
paid in full for the property in question. A cash deal was
negotiated and all funds
were paid directly to me.
Transfer of the property will be
concluded in the near future.
For any queries in relation to the
above, please contact me on 082 [...] or office number 011
[...].
Yours faithfully
David Sean Harding (…)”
5.
I return later to the purpose for which, it is
claimed, the letter was written. Suffice for current purposes
to state that
the following issues are common cause: that
5.1.
the
sale and rental agreement between the Late Christian Malila Ndou and
the first respondent was concluded on 1 March 2002;
5.2.
instalments and rental payments were made in terms
of the agreement for the purchase and rental of the property;
5.3.
the
terms of the letter addressed by the first respondent dated
27 November 2002.
6.
What is in dispute is the total amount paid by the
Late Mr Ndou to the first respondent in respect of the agreement of
sale and
rental; the truthfulness of the contents of the letter
admittedly written by the first respondent on 27 November 2002;
and
whether the agreement of sale and rental concluded between the
Late Mr Ndou and the first respondent was subsequently orally
terminated
or cancelled by the first respondent.
7.
The first respondent’s defence has three
components to it, namely;
7.1.
first,
that there exists a dispute of fact on the papers that the applicant
ought to have known or knew about and accordingly the
application
should be dismissed, in the alternative, the matter be referred to
trial;
7.2.
second,
that the sale agreement concluded between the deceased and the first
respondent in respect of the immovable property was
verbally
cancelled pursuant to an agreement concluded between the first
respondent and the deceased whereby the deceased purchased
from the
first respondent certain equipment to the value of R82 000
(eighty two thousand rand); and
7.3.
third,
that the letter written by the deceased and dated 27 November
2002 referred to above confirming payment of the full
purchase by the
deceased was written by the first respondent at the request of the
deceased in order to confirm the deceased’s
credit worthiness
to people with whom he was doing business and that the letter was
given to him for that purpose and that purpose
only.
8.
The first respondent asserts in his answering
affidavit that there is a dispute of fact arising between the parties
as evidenced
by the first respondent’s attorney’s letters
addressed to the applicant on 20 June 2017. The relevant
parts
of the letter read as follows:
“
3. At the
meeting you produced four copies of four receipts, three of which
correspond by date with three cheques, these dated the
4
th
March,
27
th
March and
30
th
April
2002. The three receipts are each for R2 500.00 less than
a cheque bearing the same date. This is simply
because the
rental factor was deducted from the cheque payment in each instance.
Your attempted explanation at the meeting
that the receipts were for
cash monies received and the cheques were proof of additional payment
is a poor fabrication and we deplore
your attempt at deceit.
…
5. Our client and the deceased did
other business in terms of which our client sold to the deceased who
purchased:
5.1 20 x generators at R2 500.00
each;
5.2 2 x compressors at R2 500.00
each;
5.3 30 bicycles at R900.00 each.
6. It was agreed between our client
and the deceased, at some point in time, our client is a little hazy
about the date, to cancel
the sale and appropriate the monies paid in
payment of future rentals and the goods sold as referred to in the
preceding paragraph.
The deceased remained in occupation and
continued to use the property as offices for his various business
ventures.”
9.
Counsel for the first respondent submitted that
there are three issues on which the dispute of fact arises, namely,
9.1.
whether
the written agreement of sale and rental was orally cancelled;
9.2.
second,
whether the full balance of the sale transaction was paid and whether
there was another agreement in terms of which the
deceased purchased
from the first respondent certain items as specified; and
9.3.
third,
the purpose for which the letter signed by the first respondent dated
27 November 2002 confirming payment of the full
purchase price,
was written.
10.
It was contended in this regard that the first
respondent has seriously and unambiguously addressed the disputed
facts by setting
up a completely different version to that of the
applicant. To bolster the argument it was further submitted on
behalf of
the first respondent that the applicant’s most
important witness is deceased and that the applicant was neither
privy nor
a party to the oral agreement of cancellation of the
written agreement of sale and rental.
11.
On those basis, the first respondent contends that
the application should be dismissed, alternatively, that the matter
be referred
to trial.
12.
The proper enquiry
to determine the existence of a dispute of fact in motion proceedings
was laid down in the
Room
Hire
[1]
decision. The
Court held that a
dispute
of fact arises where the respondent denies all the material
allegations made by the applicant and produces positive evidence
to
the contrary.
[2]
13.
The respondent must raise
raise
a “
real,
genuine, or bona fide dispute of fact
”
.
[3]
It is insufficient
for the respondent to simply make a bare denial:
“
[13]
A
real, genuine and bona fide dispute of fact can exist only where the
court is satisfied that the party who purports to raise the
dispute
has in his affidavit seriously and unambiguously addressed the fact
said to be disputed. There will of course be
instances where a
bare denial meets the requirement because there is no other way open
to the disputing party and nothing more
can therefore be expected of
him. But even that may not be sufficient if the fact averred
lies purely within the knowledge
of the averring party and no basis
is laid for disputing the veracity or accuracy of the averment.
When the facts averred
are such that the disputing party must
necessarily possess knowledge of them and be able to provide an
answer (or countervailing
evidence) if they be not true or accurate
but, instead of doing so, rests his case on a bare or ambiguous
denial the court will
generally have difficulty in finding that the
test is satisfied.
…”
[4]
14.
A dispute of fact will accordingly arise in this
matter where the first respondent has denied the material allegations
made by the
applicant and the first respondent has produced positive
evidence to the contrary. It is insufficient for the first respondent
to make a bare or ambiguous denial. He must provide an answer
or countervailing evidence.
15.
On all of the three issues on which the first
respondent claims that disputes of fact arise, the first respondent
is required to
adduce sufficient evidence on affidavit which provides
a prima facie case. These are crucial issues which the first
respondent
cannot just be nonchalant about in his answering affidavit
and simply refer to a letter written by his attorney on 20 June
2017 as support for his claim. All the facts around the oral
cancellation and sale of other items lie purely within the knowledge
of the first respondent which he cannot be hazy about.
16.
In this regard, it
is settled law that a
party
wishing to rely on an oral agreement, is required to show when, where
and how the acceptance of the terms of the agreement
was expressed by
each of the parties to the agreement and must clearly establish the
terms and contents of such agreement.
[5]
17.
I am in no way suggesting that the first
respondent bears the onus in these proceedings. All I am
restating is that the first
respondent should, at the very least,
provide some prima facie evidence of matters that are peculiarly
within his own knowledge.
This the first respondent has failed
to do.
18.
To the extent that the first respondent wishes to
rely on an oral agreement, the first respondent was required to
produced positive evidence of such an
agreement that would at least establish the existence of such an
agreement were the matter
to be referred to trial.
19.
However, the first
respondent’s answering affidavit is lacking in material detail
on the issues around the cancellation and
purchase of other items by
the deceased. The first respondent does not provide any details
as to when or where the written
sale and rental agreement was orally
cancelled. Nor does he provide any detail as to when, where and
how the alleged items
were sold and delivered including the issue of
whether or not invoices are available in respect of the sale of goods
transaction.
It cannot therefore be concluded that the first
respondent has raised a bona fide defence or has raised a bona fide
dispute of
fact.
[6]
20.
There is substantial and cogent evidence set out
by the applicant in the founding affidavit which is either undisputed
or admitted
by the first respondent. First, the written sale
and rental agreement is admitted in toto by the first respondent.
The first respondent has also admitted that a bulk of the purchase
price, interest and rental monies due in terms of the written
sale
and rental agreement were in fact paid to him by the deceased.
Third, on 27 November 2002 the first respondent
issued a letter
confirming that the deceased had purchased and paid in full for the
property that was sold in terms of the written
sale and rental
agreement and that the transfer of the property was imminent.
It is not sufficient to simply claim that that
letter was written for
a different purpose.
21.
In this regard, it is well established that relief
may be granted in motion proceedings in certain circumstances where
factual disputes
are alleged:
“
26.
Motion proceedings, unless concerned with interim relief, are all
about the resolution of legal issues based on common cause
facts.
Unless the circumstances are special they cannot be used to resolve
factual issues because they are not designed to determine
probabilities. It is well established under the Plascon-Evans
rule that
where
in motion proceedings disputes of fact arise on the affidavits, a
final order can be granted only if the facts averred in
the
applicant’s … affidavits, which have been admitted by
the respondent … , together with the facts alleged
by the
latter, justify such order.
It
may be different if the respondent’s version consists of bald
or uncreditworthy denials, raises fictitious disputes of
fact, is
palpably implausible, far-fetched or so clearly untenable that the
court is justified in rejecting them merely on the
papers.
”
[7]
22.
The first respondent’s claims in his
answering affidavit are bare and do not come close to challenging the
assertions made
by the applicant or to rebut the cogent evidence in
the applicant’s affidavit regarding the written sale agreement
and confirmation
thereof by the first respondent. The
allegations made by the first respondent are bare and far-fetched on
all of the issues
on which the first respondent claims that a dispute
of fact has arisen. It is not sufficient for the first
respondent to
simply deny assertions made in the founding affidavit
and to faintly allege that the written sale and rental agreement was
orally
cancelled or another sale of goods transaction was concluded
between the first respondent and the deceased or that the letter of
confirmation of the written sale agreement was written for a
different purpose.
23.
What is clear though, is that there was a written
sale and rental agreement in respect of the property, substantial
payment was
made by the deceased following on that transaction and
that there is confirmation by the first respondent himself that there
had
been payment of the full purchase price for the property.
There is no cogent evidence to dispel these facts. The only
dispute, insofar as I can discern, is whether the remaining amount is
R12 500 (twelve thousand five hundred rand) as alleged
by the
first respondent or R5 000 (five thousand) as stated by the
applicant, which appears to be in respect of the rental.
24.
I must also mention that counsel for the first
respondent asked me to infer that the goods were indeed sold during
or about mid
2004 and also infer that there was oral cancellation of
the written sale and rental agreement. I was also urged to find
that
the applicant was neither privy nor a party to the oral
agreement of cancellation and cannot give any evidence to the
contrary.
All of that said, it is still not good enough to
amount to a genuine dispute of fact and less so constitute sufficient
evidence
which provides a prima facie case. It is not
sufficient for the first respondent to just cast aside the deed of
sale and
rental, which is clearly admitted by the first respondent
and the letter confirming the sale transaction and full payment
following
a transaction, and faintly claim that there was an oral
cancellation and that the letter which is in clear terms, was after
the
fact and belatedly for another supposed purpose. For the
first respondent to go as far as to state that the deceased is no
longer alive to contest or dispute the first respondent’s claim
is to be clever and opportunistic after the event.
25.
In sum, the allegations made by the first
respondent in his answering affidavit do not diminish or challenge
the substance and import
of the deed of sale and rental and the first
respondent’s own letter confirming full payment. At best,
the first respondent’s
allegations only constitute a vague
claim that does not raise a genuine dispute of fact justifying the
dismissal or even referral
of the matter for trial. Significantly,
the first respondent has confirmed the sale of land as a cash
transaction.
26.
Ordinarily, in sale
of land transactions the legislature has provided for some protection
to purchasers in instalment sale of land
transactions exceeding a
period of one year. These include the protections set out in
section 19
of the
Alienation of Land Act, 68 of 1981
.
[8]
27.
In this context, the purpose of this statute has
been described by the Constitutional Court as follows:
“
41. The
purpose of the ALA is to regulate the alienation of land in certain
circumstances, and also to fulfil the need for protection
of
vulnerable purchasers and imbuing good faith and fairness into
contractual relationships relating to land. The ALA sets
out
requirements for, amongst others, the cancellation of credit
agreements for the sale of land through instalment sale agreements.
Section 19
limits the seller’s right to take immediate and
unilateral action by providing for certain steps to be taken before
it can
cancel an agreement concluded with a purchaser.
”
[9]
28.
While the agreement in this matter does not amount
to a “
contract
”
as defined in the ALA, this does not derogate from
the requirement in
section 2
of the ALA requiring that the
alienation of land be in writing, and the aforesaid statutory purpose
that such a requirement gives
effect to. I am satisfied that
the agreement sought to be declared valid meets, substantially, this
requirement of the ALA.
Moreover, I am persuaded that the
declaration sought in the present case would protect vulnerable
purchasers and give effect
to the principles of fairness, being the
stated purpose of the ALA.
29.
There is one last point, it is that the first
respondent also stated that the applicant has made claims of
dishonesty against him
and that this is another reason why the matter
should be referred to trial. I find that accusations of
dishonesty have been
made by both the applicant and the first
respondent. These allegations do not take the matter any
further.
30.
In conclusion, I make the following order:
30.1.
The
written agreement of sale entered into between the deceased,
Christian Malila Ndou and the first respondent on 1 March
2002
is declared valid.
30.2.
The
first respondent is directed and ordered to sign all necessary
transfer documents in order to effect transfer of the property
described as Erf [...] Boksburg South and physically known as number
[...] L. Street, Boksburg, Gauteng Province into the estate
of the
Late Christian Malila Ndou within fourteen (14) days of this order.
30.3.
In
the event that the first respondent fails to comply with prayer 2
above, then the Sheriff of Court in whose area of jurisdiction
the
property is situated is hereby directed and ordered to sign all
necessary transfer documents in order to effect transfer of
the
property described as Erf [...] Boksburg South and physically known
as number [...] L. Street, Boksburg, Gauteng Province into
the estate
of the Late Christian Malila Ndou within fourteen (14) of being
called to do so by the applicant or her legal representatives.
30.4.
The
first respondent is ordered to pay the costs of this application.
_________________________
TJB BOKABA
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
APPEARANCES:
FOR APPLICANT: ADV LANDMAN-LOUW
INSTRUCTED BY: MOLEPO INC. ATTORNEYS
FOR RESPONDENTS: ADV BRITZ
INSTRUCTED BY: MANFRED JACOBS
ATTORNEYS
[1]
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155 (T).
[2]
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T) at 1163.
[3]
Plascon
Evans Paints Ltd v Van Riebeek Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634 I.
[4]
Wightman
t/a JW Construction v Headfour (Pty) Limited and Another
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA), at para 13.
[5]
Rooyendal
(Pty) Limited v The Minister of Land Affairs
[2015]
ZASCA 108
para 13.
[6]
See -
Naidoo
and Another v Sunker and Another
(126/11)
[2011] ZASCA 216.
[7]
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) para 26
.
[8]
Section
19
of the ALA limits the remedies available to a seller by reason of
any breach of contract on the part of a purchaser, including
inter
alia
the
right to enforce acceleration of payment; to terminate the contract
;
or to institute an action for damages.
[9]
Amardien
v Registrar of Deeds
2019
(3) SA 341
(CC) para 41
.