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[2021] ZAGPJHC 23
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Makepeace v San Lameer Villa 3212 cc and Others (52533/2020) [2021] ZAGPJHC 23 (5 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 52533/2020
(GAUTENG
DIVISION, PRETORIA)
In
the matter between:
MAKEPEACE,
ALISON
Applicant
and
SAN
LAMEER VILLA 3212
CC First
Respondent
DIRK
UYS
ATTORNEYS
Second Respondent
THE
REGISTRAR OF DEEDS,
PIETERMARITZBURG
Third Respondent
Disputed
sale agreement concluded pursuant to an auction of immovable property
JUDGMENT
DE
VILLIERS, AJ:
[1]
This dispute originated at an auction of an immovable
property and
played out in a written agreement concluded pursuant thereto. The
applicant seeks to enforce the agreement.
The
seller avers that the agreement of sale was not concluded with the
applicant. The parties before me are the applicant, who is
the
alleged purchaser; the first respondent is the seller; the second
respondent is the seller’s conveyancers; and the third
respondent is the relevant registrar of deeds.
[2]
The auctioneers have not been joined, and I refer to
them as
“the auctioneers”.
The
(original) purchaser of the property has not been joined either. He
is the applicant’s husband and I refer to him as “
Mr
Makepeace”
. I refer to the
applicant as
“the applicant”
or
“the purchaser”
,
to the first respondent as
“the first respondent”
or
“the seller”
,
and to the second respondent as
“the conveyancers”.
[3]
This matter has been allocated to me by
agreement, for decision on the papers filed of record, after the
judge who had heard the
matter in urgent court became indisposed.
Included in the papers are four sets of heads of argument (two by
each side). These heads
of argument properly set out the disputes. I
possibly unnecessarily so, also sought and obtained consent that this
matter be determined
in the Gauteng Local Division.
[1]
[4]
I address the merits of the dispute. My predecessor did
not strike
the matter for lack of urgency. I agree, it has commercial urgency.
No one took issue with the court’s jurisdiction,
as both the
applicant and the first respondent (the main protagonists) are
resident within this court’s jurisdiction.
[5]
The application is unusual in that only final relief
is sought in
urgent court. By its nature, the urgent court is a holding court,
where one would have expected an interim interdict
restraining
transfer pending proceedings to determine the underlying disputes.
Instead,
inter alia
, the following final relief is sought
before me (upon which the remainder of the relief sought is based):
“
2.
The deed of sale in respect of the property concluded between
applicant and first respondent on
03 March 2020 ("the
agreement"), a copy of which is annexed to the founding
affidavit of Alison Makepeace, as annexure
"MMl", is valid
and binding on the parties inter se, until fully performed or
lawfully terminated
”.
[6]
Ancillary relief is sought interdicting a re-sale of
the property,
enabling the applicant to produce a bank guarantee for the purchase
price, and to give declaratory relief regarding
the cancellation of
the agreement, but these all depend on the main relief sought.
[7]
The applicant formulated her
claim as follows in the founding affidavit:
“
13.
Pursuant to a successful bid at a public auction, my husband, Murray
Makepeace ("Murray''), on my behalf,
executed an offer to
purchase on 26 February 2020, which was accepted by San Lameer
Villa
[2]
on 03 March 2020, thus constituting an agreement valid in law. A copy
of the agreement is hereto attached, marked annexure "MM1".
”
[8]
The applicant did not attend the auction, her husband
did. As already
reflected, I do not refer to him as “
Murray
” as
she does
,
but as “
Mr Makepeace
”. I also do
not refer to the first respondent as “
San Lameer Villa
”
as the applicant does, but as “
the first respondent
”
or “
the seller
”.
[9]
Both the relief claimed, and the formulation of the main
contention
reflect that in issue is the factual question of whether the written
agreement was concluded between the applicant and
the first
respondent (or between the applicant’s husband and the first
respondent). The issue is if Mr Makepeace acted as
the applicant’s
agent (and not in his own name) when he executed the written
agreement.
[10]
It would become common cause in the papers that as at 3 March 2020,
the
auctioneer and the seller did not know of the existence of the
applicant, and no written appointment of Mr Makepeace as the
applicant’s
agent existed. Indeed, the agreement relied upon by
the applicant was a version produced in the later part of July 2020
by an employee
at the auctioneers, a version that had never been
signed by the applicant or the seller.
[11]
Upon looking at the document attached as “MM1” to the
founding
affidavit:
[11.1]
It bears on an annexure the name of the first respondent as the
seller (in
handwriting), and the name of Mr Makepeace as the
purchaser (also in handwriting), followed in typed script “
OBO
Dr Alison Makepeace
”;
[11.2]
The purchaser purportedly completed the document at Cape Town on 26
February
2020, represented by “
MC du Toit
”.
His/her role was not explained in the founding affidavit;
[11.3]
The seller purportedly completed the document at Pretoria on 3 March
2020.
[12]
The above was as far as the
founding papers took the matter on the identities of the contracting
parties to the alleged written
agreement of sale.
[13]
The auction terms and
conditions were not produced, and MC du Toit did not depose to an
affidavit.
[14]
The seller’s answering
affidavit (the deponent is a member of the first respondent) in the
material part, reads:
“
18.
On 26 February 2020, Mr. Makepeace (acting on his own behalf)
successfully bid for the property via an auction
conducted by the
auctioneers. The auctioneers signed the agreement on 26 February 2020
in Cape Town, whereafter I signed the agreement
on 3 March 2020 in
Pretoria.
19.
Subsequently, the auctioneers sent the signed agreement to Mr.
Makepeace on 5 March 2020. See in this
regard the email from the
auctioneers, enclosing the signed agreement, attached hereto as
annexure S1.
20.
The Honourable Court is directed to the last page of the agreement
reflecting my signature and that
of the auctioneer, Mr. MC du Toit,
acting on behalf of Mr. Makepeace. Notably, this page differs from
the page in annexure MM1
to the founding affidavit, in that there is
no reference to Mr. Makepeace allegedly acting on behalf of the
applicant
.”
[15]
Indeed, the typed script addition “
OBO
Dr Alison Makepeace
” is missing from
the agreement concluded on 3 March 2020 (the date of the agreement
relied upon by the applicant). This is
the end of the applicant’s
factual claim that she had concluded an agreement of sale on 3 March
2020, as attached by her
to the founding affidavit, is a different
version of the agreement to the one relied upon and confirmed by the
seller. It means
that prayer 2 referred to earlier
[3]
must fail,
[4]
and hence the whole application must fail too. Or does it?
[16]
After the sale, the deposit had to be paid and the balance secured
for
payment on transfer by way of a guarantee within 30 days from
date of signature of the agreement (in other words, by about 3 April
2020). One would have expected a purchaser to address compliance with
the agreement of sale. Instead, the applicant’s version
in the
founding affidavit was this terse one:
“
14.
ln terms of the Agreement, the purchase price for the property was
R1,650,000.00 (one million, six hundred
and fifty thousand). I
confirm I paid the deposit to the Auctioneers and that the balance of
the purchase price was to be secured
through the registration of a
bond with First National Bank ("FNB'').
15.
After the agreement was executed, the country went into a National
State of Emergency, which caused
some delays in communication between
the parties. I do not deem it necessary to deal with any
communication that flowed between
the parties during this period.
16.
On 30 June 2020, FNB addressed an email to myself, confirming an
Approval in Principle (AlP), that the
bond has been approved subject
to valuation of the property. This was immediately communicated to
Dirk Uys
”
[5]
[17]
This version does not address the period from about 3 April 2020 when
the guarantee was due, or even when finance was sought from First
National Bank (“
FNB
”). A bank guarantee has still
not been delivered.
[18]
It would become common cause in the papers that the applicant did not
pay the deposit as she had alleged in the founding affidavit. Mr
Makepeace paid it or paid it from his business (“
Bettor
Business
”) and the seller produced proof of such payment of
R177 950.00, including the auctioneers’ commission.
[19]
It would become common cause in the papers that the communications in
the period 3 March 2020 to 30 June 2020 referred to, but not
addressed by the applicant, did not include her. A number of e-mails
were exchanged between the conveyancers and Mr Makepeace, and in all
instances, he held himself out as the actual purchaser of
the
property. The seller did not know of the applicant’s existence
as a potential contracting party until advised of the
FNB loan in
principle on 30 June 2017.
[20]
The answering affidavit reflects that upon being advised of the loan
in principle to the applicant, the conveyancers immediately sought
clarity from Mr Makepeace why the approval was for a loan to
the
applicant (and not to him). On 22 July 2020 Mr Makepeace produced an
unsigned letter from the applicant’s practice that
he had
represented her in bidding at the auction. In reply the applicant
confirmed that she authored the typed, but unsigned letter,
on about
that date.
[21]
It is common cause that the applicant did not allege that the signed
agreement incorrectly reflected the events at the auction. She does
not seek rectification of the signed agreement. It is common
cause
that the agreement correctly reflected Mr Makepeace as the purchaser.
The validity of the agreement is also not in issue.
It is (or was) a
valid agreement.
[22]
As it is common cause that the contract was properly concluded with
Mr
Makepeace, I need not address the contractual provisions regarding
the procedure that had to be followed (but which was not followed)
had Mr Makepeace been an agent for the applicant.
[23]
Mr Makepeace contractually required written consent by the seller to
cede or assign his rights and obligations to the applicant. No such
consent was ever sought. The agreement reads:
"
AGENT/NOMINEE
AND PROHIBITION ON FURTHER SALE
16.1
…
16.3
Should the Purchaser fail to nominate the principal by close of
business on the date of acceptance by the Seller,
then it shall be
bound to perform all his obligations as Purchaser in terms of this
Agreement.
16.4
Other than set out above in respect of nominee agreements, the
Purchaser shall not without the express written
consent of the Seller
on-sell the property, or alienate, cede and/or assign any of its
rights and responsibilities under this Agreement
to any third party
prior to registration of transfer of the Property into its name. Any
transaction entered into by the Purchaser
in contradiction of this
prohibition may be ignored as pro non scripto by the Seller
."
[24]
Only in reply, the applicant sought to circumvent
the contractual stipulation that the seller had to agree in writing
to the substitution
of the purchasers by relying on a tacit amendment
substituting her as the purchaser - being a tacit amendment between
the auctioneers
and the conveyancers who substituted her as the
purchaser, and that the seller tacitly acquiesced therein (and thus
ratified their
actions):
[6]
“
9.4.
I am advised and accordingly submit that the agreement was lawfully
amended to reflect the true state
of affairs, viz. Murray is acting
on my behalf under the agreement. The amendment was effected through
ratification by acquiescence.
Further legal argument on this score
will be presented at the hearing.
9.5.
In the following paragraphs, I illustrate that the amendment to the
agreement was implicitly
ratified by the conduct of the parties
involved inter se as evidenced by the email correspondence outlined
hereunder
.”
[25]
The applicant stated her argument as follows in her heads of
argument:
“
The
applicant is the purchaser under the agreement following the
respondents’ ratification by acquiescence of the amendment
or
variation of the agreement
.”
[26]
The material facts are that an employee of the auctioneers added to
the
agreement after the name of the purchaser, Mr Makepeace, the
words “
OBO Dr Alison Makepeace
”, and did so in
July 2020. (This is the version of the contract attached to the
founding affidavit). Later in the applicant’s
heads of
argument, the point is made that the seller could have objected to
the conduct of the auctioneers sooner. I disagree.
No case has been
made out when the seller knew of the amendment by the auctioneers.
Its version is clear, it would have insisted
on a proper amendment to
the agreement if and only if the bank guarantee was produced. The
conveyancers were to write to the applicant
in September 2020 as if
she was the purchaser to demand the bank guarantee, and then to
cancel the agreement by writing to the
applicant in September 2020.
The applicant avers that she did not receive these e-mails. I
disagree that the most probable inference
from this conduct is
anything but error or mistaken caution by an agent (in as far as
probabilities could be relied upon in these
proceedings). We do know
that when the seller could give its reaction to the alleged
substitution in October 2020, it denied such
an agreement, a denial
consistent with the fact of frustration caused by persistent
non-performance under the agreement.
[27]
The claim must fail on one of several grounds.
[28]
First, the claim must fail
as the cause of action should have been pleaded and proven in the
founding affidavit. See
Triomf
Kunsmis (Edms) Bpk v AE & CI Bpk en Andere
1984 (2) SA 261
(W) at 269B-F, where an applicant, also in vain,
sought to rely on a tacit contract in reply.
[29]
Second, the claim also must fail as any introduction of the applicant
as purchaser would have required a written amendment due to the terms
of the agreement. I have dealt with the requirement in clause
16.4 of
the express written consent of the seller in case of a
cession/delegation. Mr Makepeace had to follow the contractual
provisions to be replaced as contracting party, he did not do so. See
too especially, clause 29.2 that requires expressly of the
seller to
sign a written amendment, a step that was not followed:
“
WHOLE
AGREEMENT
29.
1 This Agreement makes up the whole agreement between the
Parties. No Party shall be obliged to comply with any express
or
implied term, condition, undertaking, representation, warranty, or
promise not recorded in this Agreement. This Agreement replaces
any
arrangement or understanding held by the Parties before this
Agreement was signed and accepted.
29.2
No amendment, addition or consensual cancellation of the Agreement
will be binding unless it is recorded in writing
and signed by the
Parties
.”
[30]
Three, the claim must fail as
section 2(1)
of the
Alienation of
Land Act
68 of 1981
states:
“
2
Formalities in respect of alienation of land
(1)
No alienation of land after the commencement of this section shall,
subject to the provisions
of
section 28
, be of any force or effect
unless it is contained in a deed of alienation signed by the parties
thereto or by their agents acting
on their written authority
.”
[31]
The applicant has not pleaded that she has concluded an oral
agreement
for the purchase of land, nor could she have done so
validly. It does not matter that
section 3(1)
of the act excludes
section 2
from sales of land by public auction, as the applicant did
not purchase the property on auction, her husband did. The applicant
seeks to be substituted as purchaser in a written contract enabling
her to take transfer of land as contemplated in the act. The
agreement she seeks to enforce would fall under
section 2(1)
of the
act.
[32]
Four, the claim must fail as
no case has been made out that the seller authorised the substitution
of the purchaser with the applicant.
In motion proceedings for final
relief, the version by the seller that it did not agree to an
amendment, stands. See again
Plascon-Evans
Paints v Van Riebeeck Paints
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635C. The seller was merely willing to
consider such a substation if the bank guarantee was delivered.
Instead the
matter dragged on and the seller decided against agreeing
to a substitution of parties. The seller’s version is clear:
“
42.
However, at no stage did l mandate or agree to or sign the agreement
as amended by the auctioneers
to the effect that Mr. Makepeace acted
on behalf of the applicant retrospectively.
…”
[33]
The seller’s version
is clear that when no bank guarantee was forthcoming, it decided to
bring matters to a head:
“
44.
By 17 August 2020, a final bond approval and bank guarantees were
still not forthcoming and on
my instruction and as a matter of
caution, the second respondent sent a notice to both Mr. Makepeace
and the applicant stating
that the guarantees had to be forthcoming
within seven days from date of the notice. A copy of this email is
attached hereto as
annexure
S20.
0c
m; font-weight: normal; line-height: 200%">
45. Despite this
notice, no final bond approval or bank guarantee was forthcoming and
the second
respondent sent a further notice on 3 September 2020 and
final cancellation on 11 September 2020.
46.
As stated above, although the aforesaid notices were sent to the
applicant, no valid agreement
had been concluded with the applicant
for the sale of the property
.”
[7]
[34]
Five, the claim must fail, as there is no
evidence of any ratification by the seller. The main case relied upon
by the applicant,
Wilmot Motors (Pty) Ltd v
Tucker's Fresh Meat Supply Ltd
1969 (4) SA
474
(T) dealt with liability for motor vehicle repairs in terms of an
oral contract where the alleged contracting party’s own
conduct
of ratification was in issue.
[8]
It further does not address the matter where, by a law, a written
agreement is required; contractually, a written agreement is
required; or the party held liable has had no interaction with the
party claiming that a contract came into being as liability
for
instructions by agents. The two cases with respect are not
comparable. Similarly, the other case relied upon by the applicant,
Bohica Business Consulting CC v Bathusi
Investments (Pty) Ltd
[2017] ZAGPPHC 1118, is
of no assistance to the applicant, with respect. It dealt with an
implemented agreement where services
were paid for and thus, by
implication, unauthorised conduct was ratified by the contracting
party. In the mater before me, the
facts do not meet the test as
formulated in
Smith v Kwanonqubela Town
Council
1999 (4) SA 947
(SCA) para 9:
“
[9]
It is in general essential for a valid ratification
'that
there must have been an intention on the part of the principal to
confirm and adopt the unauthorised acts of the agent done
on his
behalf, and that that intention must be expressed either with full
know ledge of all the material circumstances, or with
the object of
confirming the agent's action in all events, whatever the
circumstances may be'
(
Reid
and Others v Warner
1907 TS 961
at 971 D in fine - 972).”
[35]
Under these circumstances, I
need not address the
in
limine
defence of
non joinder of Mr Makepeace; the
Electronic Communications and
Transactions Act 25 of 2002
; what address the applicant allegedly
tacitly chose to have been her address for the transmission of
notices under the agreement;
or if the agreement was validly
cancelled with the applicant (if she had become the substituted
purchaser).
Accordingly,
I make the following order:
1.
The application is heard as one of urgency in terms of Uniform
Rule
6(12)
;
2.
The application is dismissed with costs.
____________________
DP
de Villiers AJ
Heard
on:
28 October 2020 (before Makhubele
J)
Decided
on paper: 02 March 2021
Delivered
on: 05 March
2021 by uploading on CaseLines
On
behalf of the Appellant/Applicant: Adv X
Khoza
Instructed
by: Adams Attorneys
On
behalf of the First and Second Respondents: Adv E
Fürstenburg
Instructed
by: Dirk Uys Attorneys
care
of VZLR Inc.
[1]
See
Thembani Wholesalers (Pty) Ltd v
September and Another
2014 (5) SA 51
(ECG)
at para 13, and the two courts’ concurrent jurisdiction set
out in Government Notice 30 published in Government Gazette
39601 of
15 January 2016.
[2]
The applicant’s defined
reference to the first respondent.
[3]
“
2. The deed of sale in respect of the
property concluded between applicant and first respondent on 03
March 2020 ("the agreement"),
a copy of which is annexed
to the founding affidavit of Alison Makepeace, as annexure "MMl",
is valid and binding on
the parties inter se, until fully performed
or lawfully terminated
.”
[4]
See
Plascon-Evans Paints v Van Riebeeck
Paints
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635C.
[5]
An attorney at the
conveyancers.
[6]
It seems to me be implicit in the manner in which the case was
pleaded, that the applicant accepted that any acts by the
auctioneers
and the conveyancers in this regard, probably were
unauthorised. She had no evidence of actual authority, and implied
authority
was not pleaded.
[7]
In para 51, the agreement
with Mr Makepeace is also cancelled, although he is not a party to
the proceedings.
[8]
At 476H-477A: “
Although
there are thus strong indications that Lloyd and Grobler were
authorised to act on behalf of the defendant in commissioning
the
repairs, it is not necessary to decide the appeal on that ground,
because I am satisfied that the second ground urged by
Mr. Schwartz,
who appeared for the appellant, is valid. That was that, in spite of
the fact that the defendant repeatedly received
invoices and
accounts addressed to it indicating that the plaintiff was charging
the work to it and thus that Lloyd or Grobler
had given instructions
to debit the repairs to the defendant, neither Tucker nor any of the
defendant's servants repudiated
liability for the repairs
to the automatic Jaguar. There was no such repudiation of liability
even when Mrs. Brink telephoned
the accounts department. On the
contrary, the first account for repairs to the automatic Jaguar was
paid.
”