About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2010
>>
[2010] ZAECPEHC 7
|
|
Janse van Rensburg v Shire Properties CC (2413/09) [2010] ZAECPEHC 7 (4 March 2010)
FORM A
FILING SHEET FOR EASTERN CAPE,
PORT ELIZABETH
NOT REPORTABLE
PARTIES
:
GEORGE JANSE VAN RENSBURG V SHIRE PROPERTIES CC
Case
Number:
2413/09
High
Court:
PORT
ELIZABETH
DATE
HEARD:
25
FEBRUARY 2010
DATE
DELIVERED:
4
MARCH 2010
JUDGE(S):
EKSTEEN
J
LEGAL
REPRESENTATIVES â
Appearances:
for
the Plaintiff(s):
ADV
VAN DER LINDE SC
for
the Defendant(s):
ADV
P SCOTT
Instructing
attorneys:
Plaintiff(s):
PIET
DELPORT ATTORNEYS
Defendant(s):
ROELOFSE
MEYER INC
CASE
INFORMATION -
Nature
of proceedings
:
Key
Words
:
Summary:
IN
THE HIGH COURT OF SOUTH AFRICA
NOT
REPORTABLE
EASTERN
CAPE, PORT ELIZABETH
Case
No.: 2413/09
Date
delivered: 4 March 2010
In
the matter between:
GEORGE
JANSE VAN RENSBURG
Applicant
a
nd
SHIRE
PROPERTIES CC
Respondent
JUDGMENT
EKSTEEN
J:
[1] On 1 June 2006 the applicant
entered into an agreement of sale with the respondent in terms
whereof he sold to the respondent
the immovable property described as
the remainder of Erf 191, Lorraine, in the Nelson Mandela
Metropolitan Municipality. It is not
in dispute that the respondent
purchased the property for purposes of property development,
subdividing the property into various
smaller erven.
[2] The agreement
of sale concluded between the parties provided for a purchase price
of R3 600 000,00 payable as set out in paragraph
3 of the written
agreement. Paragraph 3(a) provides for the payment of
R2 000 000,00 of the purchase price in
cash against registration
of transfer of the property into the name of the respondent. The
balance of the purchase price was payable
by the transfer by the
respondent to the applicant, after subdivision and development, of
three of the subdivided erven in the development
which are identified
in clause 3(b) of the agreement. The agreement provided that the
respondent had to erect two dwellings to the
value of not less than
R500 000,00, one on each of two of these erven, and a dwelling to the
value of R600 000,00 on the third erf.
[3] The R2 000
000,00 provided for in clause 3(a) of the agreement was duly paid and
the property transferred into the name of the
respondent.
Subdivision has been effected and the three dwellings erected. Upon
completion of the construction of the dwelling
houses on the said
erven the applicant required transfer of the three properties to
himself. It is not in dispute that performance
is now due, however,
the South African Revenue Services has indicated that value added tax
is payable in respect of the transfer
of the erven to the applicant.
A dispute has now arisen between the parties in respect of the
incidence of the liability for value
added tax, each party alleging
that the other is liable for the payment thereof.
[4] Ordinarily the
price fixed in respect of a contract of sale is payable in money.
Where the consideration is partly in money and
partly in goods on
which a fixed value is placed by the parties the contract may,
depending upon the intention of the parties, be
treated as one of
sale, the price being the aggregate sum. (See
Mountbatten
Investments (Pty) Ltd v Mohamed
1989 (1) SA 171
at 177J-178C. See also
Willeâs
Principles
of South African Law
9
th
edition 891 and the authorities referred to therein.) In the present
instance the parties are in agreement that the contract was
one of
sale and this, in my view, is borne out by the facts.
[5] In a contract
for sale the parties need only agree on the essentials of the sale,
namely, that they respectively buy and sell,
a thing, at a price.
The sale is then complete. By virtue of the provisions of the
Alienation of Land Act, 68 of 1981
, it may be necessary, in a sale of
land, to reduce other material terms, such as the manner for payment,
to writing. The parties
need not, however, agree on any ancillary
arrangements. Where they do not agree on any ancillary arrangements,
matters on which
the contract is silent are regulated by law.
(Compare
Wessels
Contract
paragraph
4425;
Fry
v Reynolds
(1848) 2 Menz 161
at 168.) The parties are, however, always at
liberty to modify the rights and obligations implied by law by means
of express terms
or conditions in any way they please, provided such
are not illegal. So, for example, the law implies that a seller of
immovable
property must pay the costs of transfer; this obligation
is almost invariably imposed upon the purchaser by express agreement
between
the parties.
[6] In the contract in issue in this
matter clause 4 provides as follows:
â
Die koste vir
die opstel van hierdie Koopkontrak, die seëls daarop, indien enige,
hereregte, of BTW wat ookal van toepassing mag
wees en alle ander
transportkoste, word deur die KOPER betaal op aanvraag.
â
It is argued on
behalf of the applicant that the contract expressly provides that the
respondent i
s
liable to pay value added tax, including the value added tax now
levied by the South African Revenue Services. Reliance is placed
on
clause 4. The respondent, on the other hand, contends that on a
proper interpretation of the contract clause 4 relates only to
the
costs occasioned by the transfer of erf 191, Lorraine to the
respondent. It contends that no provision is made in the contract
relating to the payment of value added tax in respect of the
re-transfer of the three subdivided erven provided for in clause 3(b)
of the contract.
[7] For purposes hereof, without
deciding the matter, I shall accept that the respondent is correct
and that the contract is in fact
silent on the value added tax which
forms the basis of the present dispute.
[8] In the absence
of express provision the obligation should be determined with
reference to the common law. Ordinarily in a contract
of sale in
which the price is paid exclusively in cash the seller has the
obligation to deliver the thing sold at a proper time and
place and
in substantial accordance with the contract description. Delivery
would ordinarily mean placing the buyer in undisturbed
possession of
the thing sold. In the case of immovable property it would carry the
added obligation to pass transfer into the name
of the buyer. In
terms of the common law rule the seller, being the party obliged to
effect delivery, must also, at his own expense,
do what is necessary
to effect delivery of the
merx
to the buyer. (See
Pothier
Sale
44-48
;
Macuatonâs
Sale
of Goods
75 and
Willeâs
Principles
of South African Law
(9
th
ed), 896.
[9]
In
the present matter the purchase price is not payable exclusively in
cash and the respondent (purchaser) has undertaken the obligation
to
pay the remainder of the purchase price by means of effecting
registration of transfer of three immovable properties into the
name
of the applicant. In such a case I can conceive of no reason in
logic or in law why the same principles which apply to expenses
incurred in effecting delivery of the merx by a seller should not
find application to the delivery undertaken by the respondent
(purchaser).
He is, after all, required to pay the purchase price.
The purchase price is payable by transfer of three immovable
properties into
the name of the seller. He has undertaken the
responsibility to do so, irrespective of what it costs. If it means
that value added
tax is payable in order to effect such transfer then
the respondent is required to pay such value added tax in order to
meet his
contractual obligations.
[10] In the
circumstances
I
am of the view that the applicant is entitled to the relief which it
seeks. I make the following order:
(a) The respondent
is ordered to appoint a conveyancer to register transfer
of
erven 4057, 4028 and 4071, Lorraine in the Nelson Mandela
Metropolitan Municipality, Division of Port Elizabeth, Eastern Cape
Province, in the name of the applicant within ten (10) days of this
order;
(b) The respondent
is ordered to provide the said conveyancer with all
information
he/she requires for such registration and to sign such documents as
he/she requires both within ten (10) days of being
called upon to do
so;
(c) The respondent
is ordered to pay to the South African Revenue
Services
such value added tax as the South African Revenue Services may levy
in respect of the registration of the said transfers
within ten (10)
days of being called upon to do so by the South African Revenue
Services and/or the said conveyancer;
(d) The Sheriff
is
authorised to sign all documents required by the said conveyancer to
give effect to the said registration of transfers in the respondentâs
stead should the respondent fail and/or refuse to do so within the
time period set out above; and
(e) The respondent is ordered to pay
the costs of this application.
________________________
J W EKSTEEN
JUDGE OF THE HIGH COURT