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[2010] ZAWCHC 632
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Lacelot Fuelbiz Stellenbosch (Pty) Ltd v Van Zyl NO and Others (22745/2010) [2010] ZAWCHC 632 (20 December 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE HIGH COURT, CAPE TOWN
|
CASE
NO: 22745/2010
In the matter between: !
LANCELOT
FUELBIZ STELLENBOSCH (PTY) LIMITED
…....
Applicant
and
CHRISTOPHER
PETER VAN ZYL NO
…........................
First
respondent
JURGEN
STEENKAMP NO
…....................................
Second
respondent
MARK
BRADLEY BEGINSEL NO
…..............................
Third
respondent
GALENCIA
PROPERTY (PTY) LIMITED
…..................
Fourth
respondent
AMALGAMATED
AUCTION (PTY) LTD
…......................
Fifth
respondent
THE
MASTER OF THE HIGH COURT
…........................
Sixth
respondent
THE
REGISTRAR OF DEEDS, PRETORIA
…...........
Seventh
respondent
JUDGMENT
DELIVERED ON 20 DECEMBER 2010
BLIGNAULT
J
:
[1] This is an opposed
application, brought as a matter of urgency, in which an order is
sought setting aside a sale of immovable
property and ancillary
relief.
[2] Applicant is Lancelot
Fuelbiz Stellenbosch (Pty) Limited, a company incorporated under the
laws of the Republic of South Africa.
[3] Mr Christopher Peter
van Zyl (first respondent), Jurgen Steenkamp (second respondent) and
Mark Bradley Beginsel (third respondent)
are the joint liquidators of
the company, Black River (Pty) Limited in liquidation ("Black
River"). First, second and
third respondents are referred to
herein as "the liquidators".
[4] Fourth respondent is
Galencia Property (Pty) Limited, a company incorporated under the
laws of the Republic of South Africa.
[5] Fifth respondent is
Amalgamated Auction (Pty) Limited, a company incorporated under the
laws of the Republic of South Africa.
[6] Sixth respondent is
the Master of the High Court, Cape Town. Seventh respondent is the
Registrar of Deeds, Pretoria. No relief
is sought against sixth and
seventh respondents.
[7] Black River was
liquidated by an order of this court on 28July 2009. The liquidators
were appointed as such on 16 October 2009.
[8] As at the date of its
liquidation Black River was the owner of, inter alia, the immovable
property described as Portion 479
of the Farm Randjesfontein No 405,
Registration Division JR. This immovable property will be referred to
herein as the Midrand
property.
[9] On 4 November 2009
the liquidators sold the Midrand property to applicant at a purchase
price of R11.25 million. After applicant
had paid the full purchase
price to the liquidators but before transfer could be passed, fifth
respondent brought an application
to restrain the liquidators from
transferring the property to applicant and to have the sale to
applicant set aside. Fifth respondent
contended, inter alia, that the
purchase price of R11,25 million was below market value and that the
property should have been
sold at a public auction.
[10] The application was
settled and the settlement was made an order of court in June 2010.
Clause 1 thereof recorded that the
application had been
withdrawn and clause 2 that the sale agreement between the
liquidators and applicant in respect of the Midrand
property had
been cancelled. The content of clauses 3 and 4 gave rise to the
present litigation. They read as follows;
"3. The property
shall be sold by public auction.
4.
In the event that the auction does not realise a gross selling price
of R9,000,000.00, the fourth respondent
[the
present applicant]
agrees
at its option to either purchase the property by private treaty and
otherwise on the terms and conditions of the sale agreement
for an
amount of R9,000,000.00 or to pay the shortfall between the auction
price and the amount realised to the liquidators of
the company
within 14 (fourteen) days of the auction date."
[11] The liquidators
retained an amount of R9 million of the R11.25 million which had
been paid by appellant to them pursuant
to the first sale and repaid
the balance of R2,25 to applicant.
[12] The Midrand
property was auctioned on 15 July 2010 but the highest bidder
disappeared and did not sign the conditions of
sale or pay the
deposit. The liquidators thereafter negotiated with various parties
and this resulted in an agreement between
the liquidators and fourth
respondent, concluded on 31 August 2010, for the sale of the Midrand
property to fourth respondent
at a purchase price of R10,5 million.
[13] Applicant thereupon
launched the present application. It seeks orders that the agreement
of sale of the Midrand property
between the liquidators and fourth
respondent be set aside and that the liquidators be compelled to
give effect to the provisions
of clause 4 of the settlement
agreement that was made an order of court. The application is
opposed by the liquidators.
[14] The parties'
opposing contentions may be summarised as follows. As the auction of
the Midrand property did not realise a
gross selling price of
R9,000,000.00, applicant contends that it obtained an enforceable
right in terms of clause 4 to purchase
the property from the
liquidators for an amount of R9 million. The liquidators, on the
other hand, contend that they obtained
an enforceable right to sell
the property to applicant for R9 million and that applicant did not
obtain a right to purchase it
from them for R9 million.
[15]
Although the settlement agreement was made an order of court it
falls to be interpreted according to the ordinary principles
relating to the interpretation of contracts. See
Engelbrecht
v Senwes Ltd
2007
(3) SA 29
(SCA). These principles are for the most trite and do not
require any particular discussion for purposes of this judgment.
[16] I have come to the
conclusion that the liquidators' contention is correct. I say so for
the following reasons.
[17]
The term
agree
in
the operative part does not amount to an agreement in the
conventional sense. The settlement agreement was already such an
agreement and the word
agree
refers
to a typical option, in the legal sense, granted by appellant ie an
offer coupled with an undertaking to keep it open for
acceptance by
the other party. (Cf
De
Ujfallusy v De Ujfallusy
1989
(3) SA 18
(AD) at 22F). In my view it is in this sense that
agree
is
used in clause 4 and the grantor of the option is applicant and not
the liquidators.
[18]
The expression
agree
... to ... purchase reinforces
this
meaning of clause 4. It is trite that an agreement of sale is
defined as an agreement in terms of which the one party, called
the
seller, makes available a thing to another, called the purchaser, in
return for the payment of a price. In the present case
an agreement
to keep open an offer to purchase the property is therefore an
undertaking made by applicant to purchase the property
if so
required by the liquidators.
[19]
The final indication of the parties' intention is to be found in the
composite expression following the words
agree
at its option.
The
word
option,
viewed
on its own, might have given rise to some confusion. Upon analysis
in context, however, its meaning becomes quite clear.
The
option
granted
to applicant here is to do one of two things. It can either purchase
the property for R9 million or it can pay the shortfall
between R9
million and the auction price to the liquidators. The second choice
open to applicant is only consistent with a situation
where
applicant is acting as purchaser for a sum of less than R9 million.
[20] In the result, the
application is dismissed with costs.
A
P BLIGNAUT