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[2010] ZAWCHC 658
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Page v Park 2000 Development (Pty) Ltd (4800/2006) [2010] ZAWCHC 658 (22 October 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
WESTERN CAPE HIGH
COURT, CAPE TOWN
CASE NO 4800/2006
In the matter
between:
RODNEY
WILMOT PAGE
...................................................................................
Plaintiff
and
PARK
2000 DEVELOPMENT (PTY) LIMITED
..................................................
Defendant
JUDGMENT DELIVERED ON
BEHALF OF SMIT AJ ON 22 OCTOBER 2010
1. Plaintiff in this matter, Mr
Rodney Wilmot Page, instituted action against Defendant for an order
directing Defendant to take
all necessary steps to effect transfer
of certain immovable properties to Plaintiff against payment by
Plaintiff of the balance
of the purchase price in a sum of R891
000,00.
2. Plaintiff relied on the
provisions of a contract of sale, concluded by the parties on 12
November 2003. In terms of the agreement,
Plaintiff purchased 14
stands at Klapper Crescent, Strandloperkruis, in the Municipal
District of Langeberg, for a sum of R990
000,00. The purchase price
was payable by way of a deposit of 10%, with the balance payable
against registration of transfer
of the stands in the name of
Plaintiff.
3. Clause 10 of the agreement
provided as follows:
"10. THIS SALE
IS SUBJECT TO THE PURCHASER(S) OBTAINING A BOND OF 80% OF THE
PURCHASE PRICE, SHOULD SUCH A BOND NOT BE GRANTED
WITHIN 7 (SEVEN)
DAYS OF SIGNATURE OF THIS AGREEMENT, THE SELLER(S) WILL HAVE THE
RIGHT, BUT WILL NOT BE OBLIGED, TO CANCEL THE
SALE, I WHICH CASE ANY
DEPOSIT ALREAD PAID, WITH INTEREST, WILL BE PAID BACK TO THE
PURCHASER(S) AND NO ONE PARTY WILL HAVE A
CLAIM FOR DAMAGES DUE TO
SUCH CANCELLATION AGAINST THE OTHER."
4. It was common cause that
Plaintiff paid a deposit of R99 000,00/ but that a bond of 80% was
not granted within the stipulated
period of seven days.
5. Plaintiff,
however, alleged that Defendant, at the expiry of the seven day
period, elected not to cancel the agreement. It
was further alleged
that Plaintiff, on
27
January 2006, informed Mr Botha of the firm SA Hofmeyr & Son
Attorneys ("Hofmeyr") that he no longer required a
bond
and that the balance of the purchase price would be paid in cash.
6. Defendant, in its Plea, raised
the following defences:
6.1. That clause 10 of the agreement
of sale contains a suspensive condition, i.e. Plaintiff being
granted a mortgage bond of
80% of the purchase price within seven
days of signature of the agreement.
6.2. That, as it is common cause
that Plaintiff was not granted a mortgage bond within seven days of
the signature of the agreement,
the. agreement of sale between the
parties has lapsed.
6.3.
Alternatively,
and if the Court
were to find that the agreement did not lapse as aforesaid,
Defendant's conduct, after having become, aware that
the bond had
not been granted, manifested a clear intention to cancel the
agreement and to no longer be bound thereto.
6.4. In the further alternative,
Defendant purported to cancel the
agreement in the Plea.
7.
Of significance is the admission in the Plea that Plaintiff verbally
informed the said Mr Botha that
"he
did not want to utilise mortgage financing as envisaged in clause 10
of the agreement of sale and that the amounts of
R632 000,00 and
R793 944,68 were available on two existing mortgage bonds".
8.
During the Rule 37 conference, it was agreed that Plaintiff would
bear the onus of proving his case, but that, in the event
of
Defendant having to rely on paragraphs 4.6 and 4.7 of the Plea (the
two alternatives), it "would bear, the onus to prove
its
intention to cancel the contract and a valid cancellation".
9.
In its Reply to Plaintiffs Request for Further Particulars,.
Defendant': furnished,
inter
atia,
the
following particulars:
9.1. That Defendant was entitled (on
the alternative basis) to cancel the sale within a reasonable period
after it became aware
that Plaintiff had not obtained a bond.
9.2. That Mr WF Botha informed
Plaintiff on or about 27 January 2006 that he was of the opinion
that the agreement of sale had
lapsed and that he would obtain
instructions from Defendant in this regard and that this stance was
reiterated by Defendant's
attorney in a letter, dated 4 July 2006.
9.3. That Defendant's attorney
informed Plaintiff on or about 27 January 2006 that in his view the
sale had lapsed due to non-fulfilment
of the suspensive condition.
9.4. That Defendant did not
authorise anybody to exercise an election on its behalf at any time
to be bound to the agreement of
sale.
THE
EVIDENCE
:
10. Plaintiff
testified that he is retired at Stilt Bay and that he was basically
speculating in building houses, buying properties,
etc, during
November 2003. During that time he had a fairly close association
with a local estate agent,, one Myra Prinsloo of.
Carlt
Estates, Still Bay. She informed
him . that she was marketing the stands under consideration on
behalf of the seller, Park 2000.
The witness was interested and his
negotiations with Prinsloo resulted in him purchasing a parcel of 14
stands for a sum of R990
000,00. Prinsloo advised him to make
provision for the eventuality of sufficient funds not being
available by inserting a clause
which made provision for the raising
of a bond of 80%. The parties thereupon concluded the deed of sale
with incorporation of
the suspensive condition contained in clause
10 of the agreement.
11. The
witness did not apply for a bond, but it is common cause that he
paid a deposit of R99 000,00 on 15 December 2003. The
witness was
aware of the fact that Defendant was involved in a dispute with an
entity, known as Colarossi, which sold the property
to Defendant.
The witness was referred to a letter from Buchanan Boyes Smith
Tabata Attorneys ("BBST"), dated 12 December
2003
:
("A31"), requesting payment of a deposit of R99 000,00, as
well as a handwritten fax ("A74") by the witness
to BBST,
including a deposit slip which reflected that a sum of R99 000,00
had been paid into the trust account on 15 December
2003.
12. The witness was thereupon
referred to a document C'A75"), which was part of the FICA
documentation which was required
for purposes of passing transfer,
This document was called a
"Client
Identity Verification"
and was
signed and sworn to by the witness on 9 March 2005 in the presence
of attorney WF Botha, in his capacity as Commissioner
of Oaths, who
verified the identity of the witness. The witness was required to
specify the source of income to be utilised to
pay:
12.1 transfer and/or bond costs; and
12.2. deposit and/or balance
purchase price.
Both questions
were replied to by the witness by writing in
"own
funds".
The FICA documents,
signed by the witness, were retained by Mr Botha.
13. On approximately 25 January
2006, the witness received a letter ("A33") from Hofmeyr,
represented by Mr Botha, stating
that:
"Ons
merk dat u die bogemelde eiendomme gekoop het onderhewig daaraan dat
u lenings by 'n finansiele installing verkry.
Ons
is tans besig om ons rekords op datum te bring en ontvang graag
binne 10 dae die nodige bewys van finansiering wat bekom is.
Indien
ons nie binne daardievtyd
:
van u verneem nie, sal ons aanvaar dat ti nie die finansiering bekom
het nie."
Plaintiff
thereupon proceeded to the offices of Mr Botha, armed ; with two
mortgage loan statements from Absa ("A34"
& "A35
/f
).
.. The one statement was addressed to Seven Seasons Trading 97 (Pty)
Limited ("Seven Seasons"), showing that the
instalment
status, that Is the amount available on the bond, was a sum of R632
200,00. The second statement ("A35")
was addressed to
Plaintiff's wife, Mrs SM Page, which showed that the flexi reserve
amount available as at. 10 December 2005,
amounted to R793 944,68.
Mr Botha wrote
the word
"available"
on
the statements next to the said two amounts reflecting the available
balances on the statements. The witness asked Mr Botha
whether he
would require him to transfer the funds into their trust account,
whereupon Mr Botha replied that it would not be
necessary as he was
quite satisfied. Between 27 January 2006, when Plaintiff saw Mr
Botha until receipt of the letter, dated
4 July 2006, hereinafter
referred to satisfied. Between 27 January 2006, when Plaintiff saw
Mr Botha, until receipt of the letter,
dated 4 July 2006,
hereinafter referred to, nobody asked him about financing in the
form of a bond and nobody gave any indication
that the contract had
lapsed.
14. Plaintiff thereupon received a
letter, dated 4 July 2006 ("A36"), from attorneys Mara is
Muller Yekiso Inc ("Marais
Muller") in Cape Town,
informing him:
14.1. that, in terms of clause IQ.
of the sale agreement, he had to obtain a bond of 80% on or before
19 November 2003;
14.2. that he had failed to obtain
the said bond, or had not waived the provisions of the bond clause;
14.3. that their client had been
advised by Senior Counsel that the agreement had lapsed;
14.4. that a cheque was annexed for
an amount of the deposit paid by Plaintiff, plus interest thereon.
Plaintiff
did not accept the purported repayment of the deposit plus interest.
During the period of some 30 months since conclusion
of the sale
agreement, Plaintiff never received any indication of Defendant's .
stance that the agreement had lapsed.
It
was put to Plaintiff that Mr Botha will say that, after haying been
informed that a bond had not been granted, he told the
witness
"in
: that case, Rodney, the sale has lapsed, because it was made
subject to the granting of a bond"
(page
53).
15.
In cross-examination Plaintiff reiterated. that the issue as:
:
to ; whether a bond , had been granted was not raised during; the
;
meeting on 27 January 2006. Mr Botha knew from the FICA::
documentation that there would not be a bond and that Plaintiff |
would be providing the finances, from his own resources. It was put
to Plaintiff that Mr Botha would testify that he did ask whether
a .
bond had been granted, but Plaintiff replied that it was not:
necessary because he showed Mr Botha that he had finances available.
It was
initially pot to Plaintiff that the sale had lapsed because of the
failure to grant a bond (page 53). It was put to Plaintiff
that Mr
Botha told him during the meeting on 27 January 2006 that he had to
furnish proof that he had obtained a bond by 19 November
2003 as
required by the agreement and that Plaintiff thereupon went home and
returned some 15 minutes later with the bond statements
at pages
"A34" and "A35". The witness replied that he had
no recollection of the allegations put to him,
but that it would
have been out of keeping with his normal conduct. He thought that,
he did take the documents with him. The
witness denied that Botha |
J advised him that the two documents did not constitute, compliance
- with clause 10 of the agreement.
He testified that Botha told him
f that it was sufficient and that he does not need to pay the money
.
:
into his trust account.
It was then put to Plaintiff that,
during the adjournment, Botha had , instructed Counsel that the
proposition put to him that
.Botha told . him that the agreement had
lapsed due to non-fulfilment of the condition was not correct.
Botha's instructions
were now that he formed that opinion
subjectively, but that he did not convey it to Plaintiff. Plaintiff
denied that Botha told
him that he would go back to his client to
find out whether the finance offer by him was acceptable and
reiterated that Botha
seemed to be completely satisfied with the
documentation presented to him. Plaintiff did not provide Mr Hennie
Mouton of BBST
with a bank guarantee as requested in the letter of
12 December 2003 f'A31"). The witness could not remember having
received
the letter, but conceded that he must have received it when
he was confronted with his own handwritten fax ("B9"),
addressed to Mr Mouton, with the attached bank deposit slip as proof
of payment of the deposit of R99 000,00. The witness never
forwarded
the letter from the bank in accordance with his undertaking in the
said fax, because at that point in time he had heard
about the Court
cases.
That was Plaintiff's case.
16. Defendant's first witness was Mr
Hendrik Johannes Mouton, a director of BBST. Mr Mouton's primary
involvement was op behalf
of Imperial Bank and Standard Bank, who
were to provjde development finance for the transaction between
Colarossi and Defendant.
The banks required pre-sales before
granting: development finance. The following. requirements must be
met before a transaction
can be regarded as a final pre-sale:
16.1. The deposit, if required, must
be paid.
16.2. If the transaction is subject
to obtaining a bond, bond approval is required.
16.3. If a balance purchase price
remains payable, it must be secured.
The witness addressed the letter of
12 December 2003 ("B8") to Plaintiff to ascertain whether
the transaction with Defendant
constituted a pre-sale as required by
the banks. The witness had direct instructions from Mr Renier van
Rooyen to do the transfer
to Plaintiff and to write the letter of 12
December 2003.
The witness
received a deposit and considered that the letter by Plaintiff to
Myra Prinsloo (dated 10 December 2003 - "B7")
which he had
on file, signified that bond approval had been obtained. His firm
prepared the transfer documentation appearing
at "BIO" to
"B12" to satisfy the banks that steps were being taken to
effect the transfer to Plaintiff, Mr
Van Rooyen never gave the
witness a ;
:
mandate to proceed, with the transaction despite the fact that a^;
:: bond had not been granted, or to exercise an election to
proceed
: with the transaction despite that fact.
When the witness wrote the letter of
12 December 2003, he was under the impression that the transaction
between the parties was
valid. The same applied when the witness
wrote the letter of 8 March 2005 ("B52" and "B53")
to Plaintiff
and Hofmeyr informing them that the deposit, plus
interest, had been paid to Hofmeyr.
17.
Plaintiff's next witness was Mr Willem Frans Botha, who practices
under the name of Hofmeyr at Still Bay. In accordance with
their
normal practice his office opened a file in this matter on 10 May
2004. He knew Plaintiff because they live in a small
town and he
knew that Plaintiff was involved in property matters. He was the
country attorney who acted in the litigation between
Coiarossi and
Defendant. He used BBST, Cape Town, as his correspondent and
testified that Mr Hennie Mouton, the previous witness,
was not
involved as his correspondent in the Page matter. Mr Botha was
responsible for the letter, dated 26 April 2004, addressed
to :
purchasers of stands in the development to inform them about the
litigation involving Coiarossi. On 8 March 2005 the deposit
of R99
000,00 paid by Plaintiff, plus interest thereon, was paid by Mr
:
Mouton of BBST into the bank account of Hofmeyr. On 1 May 2005,
Plaintiff signed the documentation at "B55" to "B57"
authorising Hofmeyr to invest the said deposit, plus interest, on
behalf of . Plaintiff. The documentation at "B58"
to "B60"
was signed on 9 March 2005 for purposes of compliance with the
provisions of FICA.
On 25 January
2006 the witness addressed the letter ("B64") to
Plaintiff, requesting him to present proof within 10
days that he
had acquired the finance to fund the transaction. Plaintiff turned
up at his office where he read the letter and
thereafter informed
the / witness that, due to the long time lapse, he no longer
required bond financing. The witness informed
him that he required
proof: thereof, whereupon Plaintiff left and returned some- 15
minutes later with the bond statements at
"B65" and "B66".
The witness wrote
"available"
opposite the entries reflecting the
available balances on the statements, whereupon he told Plaintiff
that the documents did not
constitute compliance with the provisions
of clause 10 of the sale agreement, because they reflected Seven
Seasons and Mrs Page
as bondholders. The witness did not inform;
Plaintiff that there had not been compliance with the suspensive:
condition. The
witness contacted Mr Van Rooyen, explained the
:
problem and requested him to make a decision in regard thereto.; He
later learnt that Mr Van Rooyen had requested Marais (Muller
to =
obtain an opinion regarding the matter: The witness was thereupon ;
referred to a letter, dated 4 July 2006/ addressed by
Marais
Muiler’
:
to Plaintiff ("A67") informing him that Defendant had been
advised:: by Senior Counsel that the agreement had lapsed
due to
non- ; fulfilment of clause 10 and tendering repayment of the
deposit plus interest.
The first time
that the witness became aware of the fact that the bond had not been
granted in accordance with clause 10, was
during the visit by
Plaintiff to his offices on 26 January 2006. The witness was never
mandated by Mr Van Rooyen to proceed with
the agreement despite the
fact that a
y
bond
had not been granted.
In
cross-examination the witness was referred to the letters at "B14"
and "B15", addressed to the purchasers
informing them
about the litigation with Coiarossi and affording them the
opportunity to resile from the agreements. These letters
were
written on 26 April and 30 May 2004, which was long after the.
expiry of the seven
;
day period provided for in the said clause 10. The witness
reluctantly accepted that Plaintiff probably received: : these
letters,
The witness testified that the file was opehejj on 10 May
2004, but he did not read the contract until some 21 months later.
The witness agreed that Plaintiff when, he completed: the; FICA
documents and specifically the: Affidavit ("B60")
r
wrote In that;• the deposit and balance purchase price would be
paid from his 'own funds and that 'monthly bond instalments
were not
applicable. The explanation by the witness was that, , at that,
stage, he did :not compare the information contained
in the
Affidavit; with the : contents of the deed of sale. The witness
could think of no reasoir; why Plaintiff would have had
any doubts
that the transaction would go through when he signed the FICA
documents on 9 March 2005.
The witness
was confronted with a Reply to the Request for Particulars, where it
was stated that
u
Mr
Botha informed Plaintiff that he was of the opinion that the
agreement of sale had lapsedkand that he would obtain instructions
from the Defendant".
The
witness attempted to explain the contradiction between the said
statement and his evidence by saying that the difference may
be due
to the notes that were taken. What was not put to the witness,
however, was a statement
contained
in the Affidavit by Mr Van Rooyen in the interim application to the
effect that
"Mr Botha
advised Applicant that there had not been compliance with the
suspensive condition contained in clause IQ 6f the
agreement of
sale"
(page "A52"),
which Affidavit was confirmed by Mr . Botha in a Confirmatory
Affidavit at page A61.
The perception of the witness was
that the agreement had-lapsed, which meant that the question whether
Plaintiff had obtained
financing, was really irrelevant.
18. Mr Van
Rooyen, who is the only director of Defendant, thereupon testified
that he was aware of the fact that the agreement
under consideration
was subject to a suspensive condition. After seeing the letter by Mr
Mouton, dated 12 December 2003 ("88")
,
the witness accepted that the transaction had been fully completed.
The witness only learnt that the bond had not been granted
to
Plaintiff when Mr Botha telephoned him on 27 January 2006. The
witness testified that the sale price of the erven under
consideration ^ will presently amount to at least R2,8m. In
cross-examination the witness testified that he did not know on 20
November 2003 (eight days after conclusion of the agreement) whether
the suspensive condition had been fulfilled or not. He left
everything in the hands of Mr Hennie Mouton of BBST. When he saw the
letter by Mr Mouton, he knew that a deposit had not been
paid. He
accepted that the contract was in order and thereafter received
proof of payment of the deposit. The witness reluctantly
conceded
that the said letter by Mr Mouton did not request proof of
financing.
19.
The interpretation of clause 10
:
19.1. The
first matter , that has. to
:
be resolved by me, is the question whether the agreement
automatically lapsed when a bond was not obtained by Plaintiff
within;
the period of seven days as envisaged in clause 10 of the
agreement.
19.2. Mr
Scholtz, who appeared with Mr Mouton on behalf of Defendant,
contended that the agreement did lapse and that the words
following
upon the phrase
"seven days of
registration of this agreement"
should
be regarded as
ex abundanti
cautela.
He referred to the
decision by Shock J in
Townsend v
Philips,
1983(3) SA 403(C), where
it was found that non-compliance with the suspensive condition in
that case resulted in failure of the
agreement. The Court found
that, even if such a clause is intended for the purchaser's benefit,
the purchaser cannot waive the
condition after expiry of the time
limit.
19.3. The
legal position, however, is that the non-fulfilment of ; a
suspensive condition renders a contract void.
ab
initio,
unless the
parties have agreed otherwise
fmv underlining).
SEE:
Paradyskloof
Golf Estate (Pty) Ltd v Municipality of Stellenbosch
[2010]
Zasca 92
, paragraph 19, and the authorities j; referred to in
footnote 10.
19.4. 19.4.1.
Mr Scholtz referred me to the decision in
Florida
Road Shopping Centre (Pty) Ltd
v
Caine,
1968(4)
SA 587(NPD), where the suspensive condition, at the end thereof,
provided as follows:
"Should
any of the aforesaid conditions not be fulfilled then we shall have
to give you notice of cancellation of the agreement
which shall
thereupon lapse."
The majority
of the Court held that the agreement lapsed on non-fulfilment of the
suspensive condition and that the provision,
quoted above was
inserted
ex abundanti cautela
and should be disregarded.
19.4.2. It is, however,: clear from
the judgment by Fannin J that the Court had difficulty in
ascertaining, what the intention
of the parties were and Mr Coetsee,
who acted on behalf of Applicant, referred me to the following
passage on page 604B of the
report:
"On
the whole, in the light of all the considerations I have mentioned,
I incline to the view that the final paragraph of
clause 14 was
inserted
ex abundanti cautela,
and that that is all the offeror really meant. Alternatively, I find
myself in the position in which the Appeal Court found itself
in
Cairns' case,
supra, in which Davis AJA, said (p.124):
"I
still do not know, and I know of no means of ascertaining at this
stage, what the parties really intended: I have to 'cut
the Gordian
knot.'' and I find it impossible to give to the paragraph the
meaning contended for by the respondent, and I interpret
it against
him."
19.5. 19.5.1.
I was further referred to the decision by Davis J in
Paradyskloof
Goff Estate (Pty) Ltd v Municipality of Stellenbosch
(imreported),
where the : following provision was = added- to
:
the suspensive condition:
"10.3
If the suspensive cond ition referred to in clause 10.2 has not been
fulfilled within 18 months from date of the rezoning
application,
then either party will be entitled to resile from the agreement
19.5.2. The
decision by Davis J, as I read it, was not that that clause 10.3 was
to be regarded as
ex abundanti
cautela.
He found that the
settlement agreement, which the parties envisaged when the original
suspensive period transpired, lapsed on
5 October 2005. At
paragraphs 77 and 78 the learned Judge found as follows:
"[77]
The evidence further points to the: fact that the period allowed for
the fulfillment of suspensive condition expired
on 5 October 2005
without the requisite rezoning being ih place. Notwithstanding the
correspondence and indications: that
a new written agreement
could be negotiated, the existing settlement agreement lapsed on 5
October 2005. No further written amendment
was concluded so
that the settlement agreement was no longer of legal force or
effect.
[78]
For these reasons, the very legal foundation upon which relief is
sought by applicant was based no longer can be said to
exist. The
justification for the relief is therefore unsustainable."
The Appellate
Division, in
Paradyskloof,
supra
,
assumed, that the agreement did not lapse, but upheld the appeal on
other grounds.
19.6. The,
present situation, in my view, is distinguishable from the
Florida
Road
and
Paradyskloof
situations, in that the parties in
this matter specifically agreed in no uncertain
:
:
terms that the seller would have the right to
cancel
the sale. I cannot ignore that provision as it is trite law that the
= wording used by the parties must be given effect to if
it is not
ambiguous. The parties agreed that the seller would acquire the
right to
cancel
the agreement on non-fulfilment : of the bond provision, from which
it follows that thfey agreed that the contract would remain
alive
until cancellation' i
:
:
thereof by the seller.
19.7. I accordingly conclude that
the agreement did not lapse as a result of the fact that the bond
was not obtained within seven
days.
20.
The election not to cancel the aareeitient
:
20.1. It was common cause that
Plaintiff did not apply for a bond and that Defendant's attorney,
Mouton, on the instructions of
Mr Van Rooyen, wrote a letter in the
following terms to Plaintiff on 12 December 2003, that is some 24
days after the expiration
of the suspensive period:
"We
refer to the above matter and hereby request that you furnish us
with the following:
1.
The deposit of R99 000,00 as per clause 1 f the Deed of Sale, to be
paid into our ABSA Bank Trust Account Number 4035042536.
Kindly fax
proof of payment to 021-9141080.
2.
A bank guarantee for the balance purchase price of R891 000,00,
payable in favour of Buchanan Boyes, Bellville."
20.2. It is also common cause that
Plaintiff/on 15 December 2003, paid the deposit which was only
tendered back on 14 July 2006
in the letter. by Marais Muller
("B67") in which it was contended that the agreement had
lapsed,
20.3. Mr
Scholtz contended that this conduct did not constitute an election
not to cancel the agreement, as neither Mr Mouton,
nor Mr Van
Rooyen, knew whether a bond had been granted timeously. Mr Scholtz
relied on the decision in
Bekazaku
Properties (Pty) Ltd v Pam Golding Properties (Pty) Ltd,
1996(2)
SA 537(CPD), as authority for his contention: The decision in that
case, however, was to the effect that an innocent party
to a
contract who elected to abide by the agreement following a breach by
the other party/ had to have knowledge of the material
facts
constituting the breach, as well as the rights thereby created when
he elected to affirm the contract.
20.4. The said judgment, in my view,
has no application in this. matter, in that there was no breach by
Plaintiff and ..that Defendant
was not an innocent party.
20.5. Mr Van Rooyen was well aware
of the terms of the suspensive condition and it would have been the
easiest matter for him
to determine whether a bond had been obtained
by Plaintiff.. In these circumstances, Defendant cannot rely on the
alleged lack
of knowledge on the part of Van Rooyen and Mouton and I
accordingly find that Defendant duly exercised the option to affirm
the
contract and is bound thereby.
21. The cancellation of the
agreement
:
21.1. Defendant, in its Plea, in the
alternative to the defence that the agreement had lapsed due to
non-fulfilment of the agreement,
alleged that it manifested a clear
intention to cancel the agreement and to no longer be bound thereto.
In the further alternative
Defendant purported to cancel the
agreement by way of the Plea.
21.2. Mr Scholtz, as I understood
his argument, contended that Defendant, if it were to be found that
it elected to affirm the
agreement, retained the right to summarily
cancel the agreement if it so desired. I do not agree with this
submission. I am of
the view that Defendant, once it elected to
abide by the agreement, was subject to the normal rules applicable
to cancellation
of contracts and that it could only cancel the
agreement in the event of a material breach on the part of
Plaintiff,.
21.3. No such breach was committed
by Defendant and I accordingly conclude that the right to lawfully
cancel the agreement never
accrued to Defendant.
22. I accordingly conclude that
Defendant is bound by the terms of the agreement and that Plaintiff
is entitled to the relief
claimed by him.
23. An order is granted in the.
following terms:
23.1. Defendant is directed to take
all necessary steps to effect transfer of the immovable stands
identified in Annexure "A"
to the contract of sale to
Plaintiff, against payment of the balance of the purchase price in
the amount of R891 000,00.
23.2. In the event of Defendant :
failing to comply with the order set out in 23.1 above, the Sheriff
responsible for the area
in which Still Bay is situated is
authorised and . ordered to take all such necessary steps on behalf
of Defendant.
23.3. Costs of suit.
SMIT AJ