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[2011] ZAGPPHC 146
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Khumbulayo Civil & Construction CC v Midvall Local Municipality and Others (24308/07) [2011] ZAGPPHC 146 (6 May 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
CASE
NO: 24308/07
DATE:06/05/2011
In
the matter between:
KHUMBULAYO
CIVIL & CONSTRUCTION CC
…..................................................
APPLICANT
And
MIDVALL
LOCAL
MUNICIPALITY
..........................................................
FIRST RESPONDENT
MASALA
HOLDINGS (PTY)
LTD
.......................................................
SECOND RESPONDENT
REGISTRAR
OF DEEDS,
PRETORIA
...................................................
THIRD
RESPONDENT
JUDGMENT
MAVUNDLA.
J.,
[1]
Justice delayed is justice denied. The delay of this judgment is
indeed justice denied. But for the avalanche of work load in
this
division, the sequelae thereof, compounded by various other factors
beyond my control, the judgment, in retrospect, should
have been
delivered much earlier. I can do no better than to apologise for the
inconvenience caused to the parties herein.
[2]
The applicant had bought certain immovable property known as Erf
Kliprivier township, Registration Division IQ, Province of
Gauteng
from the first respondent during 10 August 2004.
[3]
It is common cause that the first respondent purported to cancel that
agreement in April 2006 for the reason that the applicant
had not
performed timeously in terms of the agreement, and sold the property
again to the second respondent in July 2006.
[4]
The applicant now seeks an order interdicting, pending an action to
be instituted, preventing the first , second and third respondent
from effecting or taking any step to effect registration of transfer
of an immovable property described as Erf Kliprivier township,
Registration Division IQ, Province of Gauteng into the name of the
second respondent.
[5]
It is common cause that the applicant on 30 August 2004 signed a
written offer to purchase the immovable property mentioned
herein
above for R15 000, 00 plus VAT. The written agreement for the sale of
the property by the first respondent to the applicant
came into
effect on 30 August 2004.
[6]
The terms of the agreement material to this matter, as reflected in
annexure "AT are, inter alia, clause 1 thereof which
provided
that:
6.1
deposit of R8 550, 00 was payable upon signature thereof;
6..2 the balance of the
purchase price, namely R8 550, 00 to be paid in 6 (six) equal
payments, the first payment is payable on
1 October 2004 and
thereafter on the first day of each and every succeeding month until
the balance has been paid to the seller."
[7]
Clause 11 of the agreement provided that should the applicant fail to
perform any of its obligations fully on due date, and
remain in such
default for a period of 30 (thirty) days after registered written
notice specifying such default and requesting
performance of the
litigation, the first respondent would have the right to cancel the
agreement.
[8]
Clause 13 of the agreement contained the applicant's chosen address
for the purposes of the said notice. The applicant contends
that the
first respondent failed to give notice in accordance with clause 11.
It further contends that all the letters sent to
the applicant by the
first respondent were contra the agreement and amounted to a
repudiation by the first respondent, which the
applicant never
accepted. The applicant further contends that it performed in
accordance with aforesaid agreement, albeit, and
has duly tendered
payment of all such outstanding amounts in so far as it may be
necessary.
[9]
The applicant further contends that there is no indication in the
papers that the first respondent at any stage regarded the
applicant's conduct as repudiation. It further contends that, in so
far as the respondent alleges that it used the telephone number
appearing with the address of the applicant, this telephone number
could not be used for purposes of cancellation of the agreement.
[10]
Before I deal with the respective answering affidavits or their
respective opposition to the applicant's prayers, I need first
to
deal with the second respondent's application for condonation for the
late filing of its answering affidavit. There is no separate
affidavit filed in support of the application for condonation.
However, in its answering affidavit the second respondent seeks,
inter alia, condonation of the late filing of its answering
affidavit. In my view, there is nothing wrong with this approach.
[11]
It is trite that the question of condonation is a matter of the
discretion of the court. The court will have regard to the
explanation proffered for the lateness of the affidavit, the duration
of such lateness as well as the strength or weakness of the
defence
or lack thereof to the merits of the case, the importance of the case
to the parties.
[12]
It is common cause that the applicant's papers were served on, inter
alia, the second respondent. The answering affidavit was
supposed to
have been filed on or before 18 June 2007. It was only filed and
served on 6 September 2007, obviously approximately
six weeks late.
The reason advanced for such late filing, is that whereas
instructions to oppose were
accepted,
had been given to the attorneys representing the first respondent.
Labouring under the impression that the attorneys were
attending to
the matter, it was only at the beginning of August 2007 that the
second respondent was informed by the attorneys that
they could not
represent both the first respondent and the second respondent and
advised to engage other attorneys, which was done
promptly. However,
the second respondent's answering affidavit only became ready for
signing in September 2007.
[13]
From the explanation proffered, it does not seem that the second
respondent was deliberately remiss in filing its affidavit
in time.
It would seem, in my view, the delay was caused by the erstwhile
attorneys of the second respondent, firstly in having
received the
instructions from both the first respondent and the second respondent
and not advising the latter well in time that
it should engage the
services of another attorney. In such circumstances, it is well known
that the courts are slow to penalise
the litigant on account of an
attorney's remissness. Consequently, in the exercise of my
discretion, I am satisfied that condonation
should be granted in casu
and I accordingly do so.
[14]
The first respondent has also sought condonation for the late filing
of its answering affidavit. The reason for the filing
of its
answering affidavit out of time is due to the fact that its attorneys
of record were initially representing both the first
and second
respondent. Once its attorneys had to withdraw as attorneys for the
second respondent, the first respondent's affidavit
had to be
re-drafted and it only became ready for filing well out of time. For
this reason advanced as well as the fact that after
considering the
facts of the dispute, I am of the view that I should exercise my
discretion in favour of the first respondent as
well and condone the
late filing of the answering affidavit, as I do.
[15]
According to the first respondent, the applicant was in breach of the
agreement in that it never paid all the costs in respect
of the
services, including electricity and other service charges as required
by clause 2 and 7 of the agreement, a fact admitted
by the
applicant.
1
Further the applicant failed to pay transfer fees, a fact admitted by
the applicant.
2
[16]
ClauseH of the agreement provides that "Should the purchaser at
any time fail to punctually perform in accordance with
any conditions
of the agreement, the seller shall notify the purchaser that within
30 days after receiving such notification, the
seller shall have the
right to cancel this agreement by notice in writing per registered
post to the purchaser and the sale shall
thereupon be cancelled
accordingly without any action of law."
[17] Clause 13 of the
agreement requires that any notice to the applicant be remitted per
registered post to his chosen domicilium
citandi et excutandi
address: P.O. Box 48, Greymont, 2035. The first respondent has
attached a copy of a letter remitted per registered
post by its
attorneys to the aforesaid address as annexure "D6"
3
.
The applicant's attention was drawn to the fact that the period he
had been given, telephonically and per letters dated 13 January
2006,
24 January 2006 and 24 March 2006, to rectify his default has expired
and that the sale is now cancelled.
[18]
In the light of the facts stated by the respondent in its affidavit,
the admitted facts by the applicant, I must therefore
accept the
correctness of the first respondent's version.
4
I therefore conclude that the first respondent complied with the
provisions of clauses 11 and 13 of the agreement of sale when
it
cancelled the agreement.
[19] It is trite that
where one party to an agreement is in breach thereof, the other party
may accept such breach as repudiation
and elect to either terminate
the agreement, or invite the offending party to remedy the breach and
continue with the agreement.
In casu, the first respondent chose to
accept the repudiation and cancel the agreement after notice was
remitted to the applicant
to the chosen domicilium address of the
cancellation. In my view, the first respondent cannot be faulted in
accepting the failure
on the part of the applicant as a repudiation,
justifying cancellation of the agreement; vide Datacolor
International (Pty) Ltd
v Intermarket (Pty) Ltd
5
. I therefore find that there was proper cancellation of the
purchase and sale agreement between the applicant and the first
respondent.
[20]
It is common cause that the first respondent subsequently sold to the
second respondent the relevant property forming subject
matter of
this matter. The applicant contends that the subsequent purchase and
sale of the property to the second respondent is
invalid because the
initial purchase and sale between himself and the first applicant was
not lawfully cancelled. I do not agree
with this submission,
especially in the light of my finding herein above.
[21]
The second respondent bona fide purchased the relevant property from
the first respondent. It is clear from the conduct of
the first
respondent that at all relevant times regarded the sale between
itself and the applicant to have been cancelled. The
second
respondent was justified in accepting that the property was up for
sale. The second respondent bona fide purchased the property
from the
first respondent. In my view he is entitled to take transfer of the
property. There is, in my view, no reason at all why
this second sale
and purchase agreement should be set aside.
[22] I am therefore of
the view that the application must fail. In the result I make the
following order:
1. The application is
dismissed with costs to be taxed on party and party scale.
N.M. MAVUNDA
JUDGE OF THE HIGH COURT
DATE
OF JUDGMENT : 06 MAY 2011
APPICANT'S
ATT : FANCOIS UYS & ASSOCIATES
APPLICANT'S
ADV : A B ROSSOUW
FIRST
RESPONDENT'S ATT : ODENDAAL & SUMMERTON
FIRST
RESPONDENT'S ADV : J.D. MARITZ
SECOND
RESPONDENT'S ATT :HIRSCHOWITZ FLIONIS ATTORNEYS
1
Vide paginated page 1
1
sub-para
8.1
2
Vide
para 7 at paginated page 11.
3
Paginated
pages 49 and 53.
4
Vide
Walele v City of Cape Town and Others 2008 (6) 129 (CC) at 142 para
"[26]
5
[2000] ZASCA 82
;
2001
(2) SA 284
(SAC) at 299 E-300E paragraphs [28]-[29].