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[2012] ZAECPEHC 86
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Lai Thom and Another v Cowley and Another (117/2010) [2012] ZAECPEHC 86 (20 November 2012)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE –
PORT ELIZABETH)
Case No.: 117/2010
Date heard: 14
November 2012
Date delivered: 20
November 2012
In the matter
between:
EDWARD
LAI THOM
First Applicant
(First Defendant
a
quo
)
PAM GOLDING
PROPERTIES
and
Second Applicant
(Second Defendant
a
quo
)
NIGEL COWLEY
MARGARET COWLEY
First Respondent
(First Plaintiff
a
quo
)
Second Respondent
(Second
Plaintiff
a quo)
J U D G M E N T
DAMBUZA, J
:
The applicants, who were
the defendants in the main action, have brought this application for
leave to appeal against the whole
of the judgment delivered on
25
September 2010.
The main ground of
appeal is that I erred in failing to find that the expiry date
stipulated in the agreement was inserted for
the benefit of the
respondents who had waived their right to
“rely on the late
acceptance of the offer”
, thereby concluding a valid sale
agreement with the first applicant.
Before I consider the
submissions made on behalf of the parties in this application I
first deal with the applicants’ interpretation
of the findings
I made in the judgment. In paragraph 1 of the Applicants’
Heads of Argument, the following appears:
“
In paragraphs 23 to 26 of her
Judgment the Honourable Dambuza J held that the Respondents, despite
being aware of the fact that
First Applicant signed the offer of
acceptance (sic) after the expiry date, being 7 April 2007, intended
to proceed with the contract
entered into between the parties.”
The applicants’
understanding of my finding in this regard is incorrect. I found
that no contract of sale was ever concluded
between the parties. In
the paragraphs referred to, particularly in paragraph 24 of the
judgment, I referred to the evidence
of the first applicant and that
of the first respondent regarding the contents of their telephone
discussion subsequent to discovery,
by the first respondent, of the
late acceptance of the offer to purchase. The evidence was
contradictory. I could not make a
finding thereon and I then
considered the correspondence exchanged between the two of them. I
found, in paragraph 26 of the judgment,
that the respondents had
expressed their continued interest in buying the property on the
same terms as before, save that there
would be no provision for a
guarantee to be furnished. In the end I found that the first
respondent’s insistence on the
exclusion of the guarantee
requirement constituted a counter-offer which was never validly
accepted. I did not find that the
respondents intended to proceed
with the
contract entered into between the parties.
The submission, on
behalf of the applicants, is essentially that, although the offer to
purchase had lapsed when the first applicant
purported to accept
same, it was revived by an acceptance thereof.
During argument I was
referred to a judgment in
Matthysen
v Stoney Ruver Properties 53 CC
2011
JDR 1866 (GNP)
(Case No 36508/2011). In
Matthysen
,
Southwood J held, where an offer made at an auction had lapsed but
was later accepted by the seller after negotiations, that
the
acceptance was invalid, as the offer had already lapsed, and that,
for it to be valid, the purchaser would have had to sign
the offer
again to show that there was a new offer, and the seller would then
have had to accept the new offer in writing (i.e.
by signing the new
offer). I respectfully align myself with the views of the Learned
Judge and agree that, as submitted by
Mr
Beyleveld
on behalf of the respondents
,
the judgment in
Manna
v Lotter & Another 2007 (4) 315 CBD
is wrong. Even if, for argument’s sake, the offer could be so
revived, no other court would conclude, from the evidence
on record
in this case, that the first respondent waived the rights that the
respondents had not to be bound by the
“contract”
.
The submission on behalf
of the applicants implies, firstly that the first respondent had
authority to waive the second respondent’s
rights in respect
of the offer. Further it implies that the contents of the letter of
26 May 2007 addressed by the first respondent
to the conveyancers,
constitute a waiver. In that letter the first respondent states
that:
“
We would however ask that you
convey to the vendor that our offer and actions are in good faith and
that we are serious purchasers
as reflected by our lodgment of 10%
ie. R115 000 (by no means a small deposit). The reason for our
suggested completion/registration
date is that our funds are tied up
until the beginning of August and as such we are not able to provide
a guarantee”.
Whilst I agree that a
contract may still be concluded where there has been failure to
timeously comply with a condition of an
offer, that principle is,
however, not without qualifications. The writer
Christie
R H
;
in
The
Law of Contract in South Africa,
1
writes
as follows in this regard:
“
Non-fulfilment of a condition
precedent normally renders the contract void, and there is therefore
no question of a party waiving
his right to cancel the contract once
there has been non-fulfilment, although he may waive the entire
condition. In the same way
the parties may agree to revive or
reinstate the contract without the condition. Non-fulfilment of a
condition that is exclusively
for the benefit of one party may be
waived by that party and cannot be relied on by the other party. Two
riders must immediately
be added to that proposition. The first is
that it must be clear that the parties intended the condition to be
exclusively for
the benefit of the one party. If this is not clear,
the other party is not bound by the waiver. The second rider is that
if the
contract places a time limit on the fulfillment of the
condition, the party for whose exclusive benefit it was imposed
cannot waive
it after the time limit has expired. There is, of
course, nothing to prevent the parties agreeing that non-fulfilment
will give
either or both parties the right to resile from the
contract and to waive that right.”
Further, the fact that
the law stipulates that an agreement of sale of land must be writing
is pivotal in this case.
I am satisfied that no
other court would find that the letter relied on by the applicant,
or the utterances by the first respondent,
either considered on
their own or together with the signing of the transfer documents by
the respondents, constituted a waiver
by the first respondent of his
rights and/or the rights of both respondents in relation to invalid
acceptance of the offer.
I am of the further view that no other
court would find that the failure by the respondents to demand
refund of the deposit immediately
on cancellation of the agreement
by the first applicant constituted a waiver of the respondents’
rights under the offer
to purchase.
2
During argument
Mr
Pretorius
sought to add a further aspect of the respondents’
conduct that, according to the applicants, constituted a waiver of
their
rights to repudiate the
“contract”
. He
submitted that payment of the deposit by the respondents on 25 April
2007 constituted a waiver of any rights the respondents
had
regarding
“contract”
. As I found in the judgment,
the respondents only became aware of the irregularity in the
acceptance of the offer on or about
the 24 May 2007. My finding in
this regard is not an issue on which the applicants intend to appeal
(according to their notice
of application for leave to appeal). But
I may as well state that no court would reasonably find, on the
evidence on record,
that the respondents were aware on 25 April
2007, of the irregularity in the acceptance of their offer.
In the end I am not
persuaded that another court might find for the applicants on any of
the issues they rely on in this application.
In the result:
The application is
dismissed with costs; the applicants are ordered to pay such costs
jointly and severally; the one paying, the
other to be absolved.
_________________________
N DAMBUZA
JUDGE OF THE HIGH
COURT
Appearances
For
applicant/defendant:
Adv B Pretorius
Instructed by
Greyvensteins Inc. Attorneys of Port Elizabeth
For respondent/plaintiff:
Adv A Beyleveld SC
Instructed by Kaplan
Blumberg Attorneys of Port Elizaberh
1
5
th
ed; at 145-146.
2
See Christie; (supra) at 441 regarding the
requisites of waiver.