About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2014
>>
[2014] ZASCA 64
|
|
Robarts v Antoni N.O. and Others (327/2013) [2014] ZASCA 64; [2014] 3 All SA 160 (SCA) (19 May 2014)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case
No: 327/2013
In
the matter between:
MICHAEL
ROBARTS
................................................................................................
APPELLANT
and
STEFAN
OKREGLICKI ANTONI
NO
...................................................
FIRST
RESPONDENT
CARLA ANTONI
NO
..........................................................................
SECOND
RESPONDENT
ANTON
JAMES SLABBERT
NO
........................................................
THIRD RESPONDENT
Neutral
citation:
Robarts v Antoni NO
(327/2013)
[2014] ZASCA 64
(19
May 2014)
Coram:
Maya, Leach and Theron JJA, Van Zyl
and Mocumie AJJA
Heard:
17 March 2014
Delivered:
19 May 2014
Summary:
Contract – alleged oral agreement granting
respondents height servitudes over appellant’s property in
exchange for zoning
scheme departures and title deed amendment
concessions not proved – servitudes included in the definition
of ‘any interest
in land’ and capable of alienation by
exchange as envisaged in
s 2(1)
of the
Alienation of Land Act 68 of
1981
– servitudes a subtraction of the dominium of the servient
land and
s 2(1)
requires agreement granting them to be in writing and
signed by the parties – written agreement not proved.
ORDER
On
appeal from:
Western Cape High Court,
Cape Town (Louw J sitting as a court of first instance):
1
The appeal is upheld with costs including the costs of two counsel
where employed.
2
The order of the court below is set aside and replaced with the
following:
‘
(a)
The application is dismissed.
(b)
The applicants shall pay the respondents’ costs of suit
including the costs of two counsel and the wasted costs occasioned
by
the hearing on 28 February 2013.’
JUDGMENT
MAYA
JA:
(LEACH AND THERON JJA, VAN ZYL AND
MOCUMIE AJJA concurring)
[1]
This is an appeal against a judgment of the Western Cape High Court
(Louw J). The court below granted the respondents an order
of
specific performance of a contract and directed the appellant
(Robarts) to do all things necessary to permit the registration
of
certain height servitudes over an immovable property belonging to his
late father’s estate (the Robarts property). The
appeal is with
the leave of the court below.
[2]
The respondents are trustees of the Stefan Antoni Family Trust. In
that capacity, they are the registered owners of another
piece of
immovable property (the trust property), which adjoins the Robarts
property, in respect of which the height servitudes
were sought and
on which the first respondent (Antoni) and his wife, the second
respondent, resided. Robarts is the son of the
late Mr Frank Robarts
and the testamentary heir to the deceased estate which owns the
Robarts property. Robarts was sued in the
court below together with
the joint executors of the deceased estate who administered the
Robarts property. He lives on the property
and would become its
registered owner in terms of a redistribution agreement he concluded
with the executors.
[3]
The dispute concerns the two residential properties which are
situated on the Atlantic Seaboard in Bantry Bay, Cape Town. Both
enjoy spectacular views of the Atlantic Ocean which contribute
significantly to their huge value. As the Robarts property is
situated
directly in front of the trust property, it may affect the
sea views enjoyed from the trust property if developed vertically.
[4]
In the latter part of 2011, Robarts started developing the Robarts
property, which was damaged by a fire in which his father
died, with
the intention of moving in. He was assisted by a town planner, Mr
Brümmer. To protect their interests, the respondents
also
engaged a town planner, Mr Burhmann. The latter took the view that
the development, which inappropriately preceded municipal
approval of
its plans, breached various restrictive conditions registered against
the property’s title deed. For example,
the title deed
prescribed that only one dwelling could be built on the erf, to the
extent of only a third of the erf’s area,
and prohibited the
use of galvanised iron roofing. The development, however, comprised
two dwellings, covered 56 per cent of the
erf and included a roof,
found unsightly by the Antonis, made of sheet metal. In addition,
according to Antoni, the planned building
was placed inconsiderately
on the site in relation to neighbours as its windows and balconies
overlooked neighbouring properties.
It was further complained that an
inappropriate location (the roof) was proposed for the DSTV dish,
air-conditioners and solar
panels.
[5]
Pursuant to threatened litigation and several e-mail communications,
in which some of the issues were resolved (Robarts agreed
to relocate
the DSTV dish, solar panels and air-conditioners from the roof) the
parties, represented by their town planners, met
on 25 July 2012. The
purpose of the meeting was to settle the remaining differences and
future rights in respect of both properties.
At that meeting the
respondents agreed not to object to Robarts’ applications for
departure from various zoning scheme requirements
and amendments to
the title deed conditions.
[6]
According to the respondents, Robarts would, in exchange for these
concessions, register various height servitudes over the
Robarts
property in favour of the trust property. Robarts is further
alleged to have agreed to change the roof material to
non-trafficable
steel ‘clip lock’ upon which stone chips would be set in
epoxy. Robarts however disputed any such agreement.
He stated that he
reserved his position in respect of the stone chips on the roof until
he had satisfied himself that they would
not pose a problem and did
not agree to any specific departure or details of any servitudes.
[7]
It was common cause though that Robarts and Antoni shook hands at the
conclusion of the meeting and agreed that Brümmer
would record
the proceedings in writing. According to Robarts, if the parties
found the Brümmer draft agreement (the Brümmer
draft)
suitable, they would sign it and there would be a final agreement
only when both parties agreed to and signed a written
document
recording an agreement. Thereafter, on 30 July 2012, Brümmer
sent Robarts a draft agreement by e-mail and asked for
his comments.
He also e-mailed a copy to Antoni with a note that he was giving him
a ‘sneak preview’ although he did
not yet have Robarts’
permission to do so. The Brümmer draft mis-stated two of the
dimensions of the servitudes and
omitted the items agreed upon before
the meeting. Robarts was not satisfied with the draft’s
recordal regarding the roof
material. On 1 August 2012 Brümmer,
on behalf of Robarts, informed Antoni that Robarts had been advised
by ‘clip lock’
roof suppliers that putting stone chips on
the roof would void its guarantee. He asked Antoni to consider
alternative roofing material.
Antoni responded on the same day and
undertook to do so in exchange for permission to build a timber deck
off the fourth bedroom
of the trust property. He enclosed a copy of
the Brümmer draft which was amended by the correction of the
misreported figures
and the addition of the items agreed upon before
the meeting. He also attached a diagram reflecting the agreed height
servitudes
for addition to the ‘agreement package’ (the
Antoni draft).
[8]
On 2 August 2012 Robarts extensively modified the Brümmer draft
and sent a signed copy of the revised document (the Robarts
draft) to
Antoni the same day. The changes included Robarts’ description
of himself as a representative of the Robarts property
and not its
owner as previously recorded. No reference was made to a stone chip
roof cover. Instead, a cost sharing arrangement
in the event that
other roofing material was used, and non-variation, non-waiver and
non-novation clauses were included. A clause
providing for the
registration of the servitudes immediately after registration of
transfer of the Robarts property to Robarts
was also inserted.
[1]
The respondents replied eight days later through their attorneys,
Slabbert Venter Yanoutsos Inc. They advised Robarts that his
draft
did not accurately record the terms of the agreement reached by the
parties at the meeting. The response included an amended
copy of the
Antoni draft (the Slabbert draft) which incorporated a clause stating
that the agreement was between the executors
of the deceased estate,
Robarts and the respondents.
[9]
Robarts wrote back on 14 August 2012. He noted that the agreement was
nullified by a difference of opinion on a critical term
of the
parties’ agreement in the drafts and suggested a meeting to
resolve the disagreement. After some to and fro-ing in
further e-mail
correspondence on 15 and 21 August, all went quiet without resolution
of the dispute. In the meantime, the development
of the Robarts
property had continued to completion without objection to any of the
Robarts’ planning applications for departure
and title deed
amendments from the respondents. On 16 November 2012 the respondents
sold the trust property subject to a condition
that they register the
servitudes agreed to by Robarts by 1 March 2013. Their attorneys
simultaneously sent Robarts another copy
of the Slabbert draft which
they insisted represented the parties’ agreement of 25 July
2012. In his reply of 29 November
2012, Robarts denied that any final
agreement had been reached at the meeting and averred that the
subsequent offer he had made
to Antoni had been rejected.
[10]
Pressured by the sale condition to register the height servitudes, so
he said, Antoni signed the Robarts draft on 29 January
2013. It was
e-mailed to Robarts on the following day with a request for him to
co-operate in the registration of the height servitudes.
Robarts’
refusal to do so prompted the respondents to launch these proceedings
in a bid to enforce the signed Robarts draft.
[2]
[11]
In the court below Robarts denied that the signed Robarts draft
constituted a binding written agreement. He argued that it
was merely
an offer made to the respondents to contract on its terms, which was
rejected on 2 August 2012 and was followed by a
counter-offer on 10
August 2012 which Robarts did not accept. Alternatively, Robarts
continued, if the offer did not lapse, he
revoked it before Antoni
signed it on 29 January 2013. And it would have been open only for a
reasonable period and was no longer
available for acceptance when
Antoni signed it, six months after it was made.
[12]
The court below was not persuaded by these submissions. It found that
the parties had concluded an oral agreement on 25 July
2012 and that
all that remained was to reduce their consensus into a formal,
written agreement which the parties mandated Brümmer
to do. In
the court’s view, the various drafts were an attempt to present
the respective drafters’ version of the agreement.
The court
accepted that Antoni was compelled to sign the Robarts draft because
of the delay and the urgency brought about by the
sale of the trust
property. The effect of that, the court found, was merely that the
trust waived its right to a written record
of the oral agreement
regarding the roof material. The court below concluded that the
Robarts draft signed by Antoni became the
written, agreed version of
the terms of the parties’ oral agreement and thereby
constituted a valid written agreement between
the trust and Robarts
in his personal capacity. For that reason, Robarts had to facilitate
the registration of the servitudes.
[13]
On appeal before us, the issues distilled to whether (a) the parties
concluded a binding oral agreement on 25 July 2012; (b)
s 2(1)
of the
Alienation of Land Act 68 of 1981 (the Act) applies to the matter and
requires the agreement, which the trust seeks to enforce,
to be in
writing,
and (c) the legal significance of
the various draft agreements and the Robarts draft relied upon by the
respondents.
[14]
As indicated above, the respondents’ case in the court below
rested on an alleged written agreement, in the form of the
signed
Robarts draft, concluded on 29 January 2013. However, they changed
tack on appeal in an argument which proved somewhat difficult
to
follow. It was contended on their behalf that Robarts and the trust
concluded a binding oral agreement on 25 July 2012 which
precluded
Robarts from making any offer to contract thereafter. By signing the
Robarts draft, now termed a ‘written instrument’,
Antoni
meant merely to facilitate proof of the terms of that oral contract
and did not bring about a new contract. The trust chose
to sue not on
the oral agreement but on the written instrument as it was
constrained to do by the operation of the parol evidence
rule once
Antoni signed it.
[3]
And even
though the written instrument was a ‘misrecordal’ of the
oral agreement as its terms were inconsistent with
what was agreed
upon at the meeting, there was ‘substantially one agreement’;
the oral agreement which remained extant.
Thus the Act – in
terms of which no alienation of land shall be of any force or effect
unless it is contained in a deed of
alienation duly signed by the
parties or their agents acting on written authority
[4]
–
did not apply as it does not require the agreement relied upon to be
in writing because there was no alienation of land
involved.
Alternatively, the relief sought was nevertheless competent because
the written instrument, by which the parties intended
to be bound
despite its inconsistency with the oral agreement, met the
requirements of the Act. The nub of the respondents’
argument
on appeal therefore, as I understand it, is that they seek specific
performance of provisions of a binding oral agreement
which are
inaccurately recorded in a written instrument signed by both parties.
[15]
The respondents’ submissions are beset by a host of
difficulties as their counsel was constrained to concede in argument
before us. The foremost hurdle is that their application did not set
out to enforce the provisions of an oral agreement. They relied
wholly on an alleged written agreement which, by their own admission,
was a ‘misrecordal’ of the terms of the alleged
oral
agreement, nonetheless signed by Antoni to bring about a written
agreement for expedience, which entitled the respondents
to an order
of specific performance of its provisions. Antoni stated
unequivocally in the respondents’ affidavits that the
respondents resolved to accept the misrecordal and waive any right to
insist on an accurate recordal because of the impending transfer
of
the trust property and that he, accordingly, signed the Robarts draft
on the trust’s behalf to ‘bring about a contract
which
... [he] was prepared to go along with’. It was then made plain
in those affidavits and in the correspondence of their
attorneys
following the signing of the Robarts draft that it was its provisions
and not the oral agreement that they sought to
enforce. Their
reference to the parol evidence rule conclusively supports this view
because if it indeed applies they are then
confined to rely on a
valid written agreement between the parties.
[16]
The case argued by the respondents on appeal is entirely different to
that advanced in their papers and the order sought in
the court
below. Quite obviously, Robarts would be considerably prejudiced if
the respondents were allowed to change their approach
at this
stage.
[5]
As was argued on his
behalf, he might have conducted his case very differently if the
respondents had indicated that they relied
on an oral agreement
instead of a written one. He might have taken steps to disprove it by
adducing facts he thought were irrelevant
to the allegations that had
been made or seek a referral of the matter to oral evidence, in light
of the material disputes of fact
regarding what was agreed at the
meeting of 25 July 2012. I see no reason to reject Robarts’
version on the papers as there
is nothing inherently far-fetched or
clearly untenable in it.
[6]
This
is especially so in the light of, inter alia, (a) Brümmer’s
odd reference to ‘a sneak preview’ when
he sent Antoni a
copy of his draft recordal, which still awaited Robarts’
comment and approval, if a firm agreement had been
reached on the
issues at the meeting, (b) the several reformulations of the Brümmer
draft which all embodied new proposals
on substantive issues not even
raised at the meeting, and (c) the very fact that the respondents
opted to rely on a document that
they themselves acknowledged did not
embody the terms of the alleged oral agreement. The facts show
nothing but that no firm agreement
was reached on 25 July 2012 and
that the respondents failed to prove the binding oral agreement on a
balance of probabilities as
their counsel prudently conceded.
[17]
All indications on the facts are rather that the parties intended to
be bound only by a written and signed agreement as contended
by
Robarts. This has to be so in any event because, as indicated above,
s 2(1) of the Act requires alienation of land to be contained
in a
deed of alienation duly signed by the parties or their agents acting
on written authority to be valid. In terms of s 1(b)
of the Act
‘land’ includes ‘any interest in land’ and
‘alienate’ which corresponds with ‘alienation’,
in relation to land, means ‘sell, exchange or donate’. It
is established that a praedial servitude (such as the height
servitudes involved here)
[7]
constitutes an ‘interest in land’ as envisaged in the
Act.
[8]
The height servitudes
are real rights which diminish the dominium of the owner’s
rights in the Robarts property as they entitle
the respondents and
their successors in title to restrict the owner of the Robarts
property from exercising normal rights to ownership
and developing
the property to its full potential.
[9]
[18]
As was argued for Robarts, the parties’ affidavits and indeed
the written instrument relied upon by the respondents,
make clear
that the servitudes were agreed upon ‘in exchange’ for
the zoning scheme departures and title deed amendments,
which would
impinge on the trust property, sought on behalf of the Robarts
property. The trust would waive its rights to enforce
the zoning
scheme and title deed restrictions and support Robarts’
applications in that regard. In exchange, Robarts would
abandon the
right to build higher than he was otherwise entitled and secure the
servitudes for the trust property. Each party therefore
agreed to
waive certain rights and simultaneously undertake certain obligations
in exchange for the same concession from the other.
In sum, the
parties exchanged corporeal rights in land. So, whilst there may not
have been an alienation of an interest in land
in the form of a sale
or donation, there certainly was an exchange thereof in the manner
envisaged in s 2(1) of the Act. The decision
of this court in
Hoeksma
& another v Hoeksma
[10]
upon which the respondents sought to rely cannot assist because it is
distinguishable. There, the agreement in issue was intended
to be a
compromise and not an exchange and there was in any event no
discernible object exchanged. The Act must therefore
apply to the
written instrument relied upon by the respondents as they also
acknowledged.
[19]
The respondents consequently have to prove the existence of the
written agreement on which they rely.
[11]
To that end, they must show that a binding agreement was concluded
between the parties when Antoni signed and sent the Robarts
draft,
which manifestly constituted a fresh offer, to Robarts on 30 January
2013. Interestingly, they conceded, albeit in another
context, that
even if there was an oral agreement, it would be legally irrelevant
or moot if nothing more had happened after the
meeting of 25 July
2012 or if one or both of the parties did not sign the written
instrument of 29 January 2013. And Robarts would
thus have been
entitled to make a written offer in whatever terms he wished. This
concession must obviously redound to Robarts’
favour in this
instance too as the result is the same: there was no oral agreement.
In that case Robarts and the respondents themselves
were at liberty
to renegotiate the terms of the mooted arrangement. This is precisely
what Robarts did in his draft as the respondents
accepted.
[20]
Upon receiving the Robarts draft on 2 August 2012, Antoni telephoned
Brümmer and told him that he would institute legal
action as the
draft differed from what was agreed at the meeting of 25 July 2012. A
week later, on 10 August, the trust’s
attorneys sent Robarts
the Slabbert draft which required him to sign a materially different,
tripartite agreement.
[21]
An offer lapses if it is rejected by the offeree and a counter-offer
by the offeree amounts to a rejection of the offer.
[12]
Brand JA described a counter-offer as follows in
Legator
McKenna Inc v Shea
:
[13]
‘
[A]
binding contract can only be brought about by an acceptance which
corresponds with the offer in all material aspects. “Yes,
but”
does not signify agreement. At best it is a counter-offer.’
Once
rejected, the offer is dead and cannot thereafter be accepted, unless
it is revived.
[14]
And the
offer may be revoked by the offeror at any stage before it has been
accepted. Antoni’s telephone call to Brümmer
clearly
constituted an outright rejection of the Robarts offer. And on the
above principles the Slabbert draft, which sought to
substantially
vary the Robarts offer was tantamount to a counter-offer. Both
occurrences constituted a rejection of the Robarts
offer. Robarts did
not revive the offer and simply completed his development as he saw
fit, without paying any attention to the
items in issue between the
parties. That conduct clearly evinced an attitude that the offer was
no longer open.
[15]
In the
circumstances, Antoni’s signing of the Robarts draft did not
bring about a written agreement between the parties.
And that is the
end of the respondents’ case.
[22]
It must be said for the sake of completeness that even if it were
accepted that the written instrument constituted a binding
agreement,
the respondents would face yet another practical problem. On their
version, they concluded the oral agreement with the
executors of the
Robarts estate but struck the written agreement with Robarts who was
seemingly acting in his sole interest. In
that case, the executors
were not party to the written instrument and it could not be enforced
against the estate which may still
own the Robarts property.
[23]
In the result, the appeal succeeds and the following order is made:
1
The appeal is upheld with costs including the costs of two counsel
where employed.
2
The order of the court below is set aside and replaced with the
following:
‘
(a)
The application is dismissed.
(b)
The applicants shall pay the respondents’ costs of suit,
including the costs of two counsel and the wasted costs occasioned
by
the hearing on 28 February 2013.’
________________________
MML
MAYA
JUDGE
OF APPEAL
APPEARANCES:
For
Appellant: J Muller SC (HL du Toit)
Instructed by:
Kritzinger & Co,
Cape Town
Matsepes
Inc, Bloemfontein
For
Respondents: M Fitzgerald SC (D Baguley)
Instructed by:
Slabbert Venter
Yanoutsos Inc, Cape Town
Janice
Hayden, Bloemfontein
[1]
The
latter amendment, which the respondents claimed to have noticed only
after the opposing affidavits were delivered in the application
proceedings, prompted them to amend the relief they sought by
seeking to compel Robarts directly, and not the executors of the
Robarts estate, to register the servitudes once he took transfer of
the Robarts property.
[2]
The
draft agreement made provision for registration of the height
servitudes in clauses 2.1 and 2.2 which the respondents’
notice of motion specifically cited.
[3]
According
to this
rule
of evidence, a written agreement is generally regarded as the
exclusive memorial of the parties’ transaction and, in
litigation between them, no evidence concerning the terms of such
transaction may be adduced save the document itself or secondary
evidence of its contents which may not be contradicted or amended in
any manner by parol evidence. See
Union
Government v Vianini Ferro-Concrete Pipes (Ltd)
1941
AD 43.
[4]
Section
2(1) of the Act.
[5]
Swissborough
Diamond Mines (Pty) Ltd & others v Government of the Republic of
South Africa & others
1999
(2) SA 279
(T) at 323F-324C;
MEC
for Health, Gauteng v 3P Consulting (Pty) Ltd
2012 (2) SA 542
(SCA) paras 27 – 31.
[6]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635C;
National
Scrap Metal (Cape Town) (Pty) Ltd & another v Murray &
Roberts Ltd & others
2012
(5) SA 300 (SCA).
[7]
Praedial
servitudes, as opposed to personal servitudes, are created in favour
of the successive owners of the dominant land; perpetual;
attached
to an immovable property; indivisible; and alienated together with
the alienation of the dominant land.
[8]
Brink
v Stadler
1963
(2) SA 427
(C) at 428H-429F;
Felix
en ‘n Ander v Nortier NO en Andere
[1996]
3 All SA 143
(SE) at 153b-154c;
Janse
van Rensburg v
Koekemoer
2011
(1) SA 118
(GSJ) paras 8, 16 – 18.
[9]
Denel
(Pty) Ltd v Cape Explosive Works Ltd & another Cape Explosive
Works Ltd & Another v Denel (Pty) Ltd & Others
1999
(2) SA 419
(T);
Erlax
Properties (Pty) Ltd v Registrar of Deeds & others
[1991] ZASCA 187
;
1992
(1) SA 879
(A) at 885B.
[10]
Hoeksma
& another v Hoeksma
1990 (2) SA 893 (A).
[11]
Kriegler
v Minitzer & another
1949
(4) SA 821
(A) at 826 – 828;
Da
Silva v Janowski
1982
(3) SA 205
(A) at 219B-C and 220A-B.
[12]
Watermeyer
v Murray
1911
AD 61.
[13]
Legator
McKenna v Shea
2010 (1) SA 35
(SCA) para 17.
[14]
Legator
McKenna Inc v Shea
2010
(1) SA 35
(SCA) para 17;
Collen
v Rietfontein Engineering Works
1948
(1) SA 413
(A) at 420.
[15]
Wissekerke
en ‘n ander v Wissekerke
1970
(2) SA 550
(A) at 557F-H.