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[2012] ZASCA 12
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Mathewson and Another v Van Niekerk and Others (260/11) [2012] ZASCA 12 (16 March 2012)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 260/11
Reportable
In the matter between:
HORATIO
STEPHEN MATHEWSON
….............................................
First
Appellant
ANNEMI
MARGERETHA MATHEWSON
….................................
Second
Appellant
and
MARTHA
FRANCINA VAN NIEKERK
….......................................
First
Respondent
CHRISTOFFEL
PETRUS PRINSLOO VAN NIEKERK
…........
Second
Respondent
STANDARD
BANK BEPERK
…...................................................
Third
Respondent
THE
REGISTRAR OF DEEDS
…................................................
Fourth
Respondent
DITSOBOTLA
LOCAL MUNICIPALITY
….....................................
Fifth
Respondent
WILLEM
CHRISTOFFEL JANSEN VAN RENSBURG
….............
Sixth
Respondent
Neutral citation:
Mathewson & another v
Van Niekerk & others
(260/11)
[2012] ZASCA 12
(16 March 2012).
Coram:
NAVSA, CLOETE, VAN HEERDEN and LEACH JJA,
and
BORUCHOWITZ AJA
Heard:
8 March 2012
Delivered:
16 March 2012
Summary:
Sale of land: tacit term: not excluded
by ‘sole contract’ clause; motion proceedings: dispute of
fact: rejection of
respondents’ version as farfetched or
clearly untenable: test stringent and not easily satisfied.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
North Gauteng High Court
(Pretoria) (Ebersohn AJ sitting as
court of first instance):
1. The appeal succeeds, with costs.
2. The order of the court a quo is set aside and the
following order substituted:
'The application is dismissed,
with costs.'
______________________________________________________________
JUDGMENT
______________________________________________________________
CLOETE JA (NAVSA, VAN HEERDEN and LEACH JJA, and
BORUCHOWITZ AJA concurring):
[1] The first and second respondents, as applicants,
brought motion proceedings in the North Gauteng High Court, Pretoria
against
(amongst others) the appellants as the first and second
respondents, for relief that depended on the valid cancellation by
the
appellants of a deed of sale of immovable property. Ebersohn AJ
granted the application and refused leave to appeal. The appeal
is
with the leave of this court. It would be convenient to refer in this
judgment to the parties as they were in the court a quo.
[2] In terms of the deed of sale concluded on 26 March
2007 the respondents sold, and the applicants purchased, an erf in a
township
being developed by the respondents. Clause 17 of the deed of
sale read as follows:
'17. DIENSTE
Die Ontwikkelaar waarborg dat
die erwe voorsien sal wees met elektriese aansluiting,
wateraansluiting sowel as riolering (septiese
tenk of tenkstelsel
soos goedgekeur deur die Plaaslike Munisipaliteit).'
[3] On 6 May 2009 the applicants' attorney wrote to the
respondents in the following terms:
'Voormelde koopooreenkoms sowel
as klousule 17 van die ooreenkoms verwys.
Ons kliënt se instruksies
is dat geen dienste voorsien is aan die voormelde plaasgedeelte nie
en dat hulle [sic: sc "u"]
derhalwe waarborg breuk
plaasgevind [sic: sc “gepleeg”] het, alternatiewelik
repidiasie [sic] van die ooreenkoms plaasgevind
het welke repidiasie
[sic] van die ooreenkoms aanvaar word.
Gevolglik is dit ons instruksies
om u in kennis te stel dat indien voormelde gebrek nie reggestel word
binne 7 (sewe) dae vanaf
datum van hierdie skrywe nie, ons kliënte
die reg behou om hierdie ooreenkoms te kanselleer.'
The notice of motion which followed was issued on 2 June
2009.
[4] The court a quo, having quoted clause 17 of the deed
of sale, reasoned as follows:
'15. Dit blyk oorvloediglik uit
die stukke:
(a) die elektriese aansluiting
was nie in plek nie;
(b) die wateraansluiting was nie
in plek nie; en
(c) die riolering was nie in
plek nie.
16. . . .
17. Die applikante, as kopers,
het per kennisgewing gedateer die 6de Mei 2009 die verkopers in
kennis gestel dat as die dienste
nie verskaf is binne 7 dae die koop
gekanselleer sal word. Aan hierdie aanmaning is nie voldoen deur die
verkopers nie en die aansoek
aan hierdie hof het gevolg.
18. Dit bly onteenseglik so dat
die verkopers inderdaad kontrakbreuk gepleeg het en die applikante is
geregtig op die regshulp wat
hulle vorder.'
[5] The court a quo ignored the respondents' contention,
which was plainly and unambiguously made in the answering affidavit,
that
the obligation to install the services referred to in clause 17
was subject to the tacit term that the applicants had to indicate
to
the respondents where the services were to be installed on the erf
which they purchased. The court a quo further ignored the
first
respondent's
assertion, also plainly and
unambiguously made in the answering affidavit, that despite
his repeated oral requests, the applicants had not given
such an indication.
[6]
Clause 11 of the deed of sale is
no answer to this case. That clause (which is poorly drafted) reads:
'GEHELE OOREENKOMS
Die partye kom ooreen dat
hierdie dokument die enigste ooreenkoms tussen hulle daar stel en dat
enige [sic; sc "geen"]
ander waarborge of voorstellings van
watter aard ookal gemaak is, anders as wat hierin vervat is nie. Geen
ander of verdere ooreenkoms
of ooreenkomste met betrekking tot die
onderwerp van hierdie kontrak is op enige van die partye bindend nie
tensy op skrif gestel
en deur beide partye onderteken.'
The reason why the clause is no answer is set out in
Wilkens NO v Voges
[1994] ZASCA 53
;
1994
(3) SA 130
(A). In that matter Nienaber JA was dealing with a written
agreement for the sale of land which contained a clause 12 reading as
follows:
'12 Entire Agreement
This document contains the
entire agreement between the parties in respect of the matters dealt
with herein and any variation or
mutual cancellation of this
agreement will only have legal force or effect if such variation or
mutual cancellation is reduced
to writing and signed by the parties
hereto' (at 138B).
The learned judge of appeal held (at 143J-144D):
'One final observation: it was
argued on behalf of the plaintiff apropos of certain remarks in the
judgment of the Court
a
quo
(at 783C-784D)
that the tacit term pleaded, if found to exist, would offend against
both clause 12 of the agreement and the provisions
of the Alienation
of Land Act 68 of 1981 ("the Act"). Clause 12 is quoted
earlier in this judgment. Section 2 of the
Act provides:
"2. Formalities in respect
of alienation of land.
(1) No alienation of land after
the commencement of this section shall, subject to the provisions of
s 28, be of any force
or effect unless it is contained in a deed
of alienation signed by the parties thereto or by their agents acting
on their written
authority."
A tacit term in a written
contract, be it actual or imputed, can be the corollary of the
express terms ─ reading, as it were,
between the lines ─
or it can be the product of the express terms read in conjunction
with evidence of admissible surrounding
circumstances. Either way, a
tacit term, once found to exist, is simply read or blended into the
contract: as such it is "contained"
in the written deed.
Not being an adjunct to but an integrated part of the contract, a
tacit term does not in my opinion fall foul
of either the clause in
question (cf
Marshall
v LMM Investments (Pty) Ltd
1977
(3) SA 55
(W) at 58A-B) or the Act.'
[7] Counsel for the applicants in argument before us did
not rely on clause 11 but advanced a different argument. He
acknowledged
that, as his clients had instituted motion proceedings
and because of the dispute of fact as to the existence of the tacit
term
relied upon by the respondents, the appeal would have to be
decided on the respondents' version unless he could persuade us that
the allegations made by the respondents were so far-fetched or
clearly untenable that we were justified in rejecting them merely
on
the papers:
Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
1984 (3) 623 (A) at
634E-635C. It needs to be emphasised that the test is a stringent one
not easily satisfied. Two submissions
were made.
[8] First, it was submitted that the defence should be
rejected as an afterthought because it had never been raised in the
emails
which passed between the parties. But counsel was unable to
refer us to an email from his clients to which one would have
expected
the respondents to have replied by asserting the tacit term.
The only email which could possibly be relevant in this context was
dated 16 September 2008, wherein the first appellant said:
'Ons het daardie erf gekoop met
die wete dat daar 'n infrastruktuur gaan wees, wat daar nie is nie.'
But that statement did not specifically refer to the
services in clause 17 (it could also, or exclusively, have referred
to roads
and a surrounding wall, as counsel readily conceded) and the
statement was made in the context of a more general complaint ─
the email continues:
'Daar is gesê ander het
gekoop, insluitende Willem van Rensburg, wat nie waar was nie.
Daar is gesê ons mag nie
uitklim nie, terwyl ander dit gedoen het sonder gevolge.
So kan jy ons kwalik neem as ons
ongeduldig klink.
So asb Horatio, ons weet jy het
ook dinge om uit te sorteer, en dit respekteer ons.'
It is also important to bear in mind the wider context
in which the email was sent. At that stage the parties were
negotiating on
the basis that the respondents would repurchase the
erf from the applicants ─ not that the applicants wanted the
services
referred to in clause 17 to be installed because they
intended building on the erf.
[9] Second, it was submitted that further proof that the
defence was an afterthought is to be found in the contradiction
between,
on the one hand, the first respondent's assertion that the
services referred to in clause 17 were available 'op die landgoed' at
the time the deed of sale was concluded (which, as I have said, was
on 26 March 2007), and on the other, his statement (supported
by
documentary evidence) that the electricity supply agreement with
Escom was only concluded on 5 June 2007. It may well be that
the
first respondent's first assertion was false. But the contradiction
(assuming that there is one) is on an irrelevant aspect
because it
was not a term of the deed of sale that the services referred to in
clause 17 had to have been installed at the time
the deed of sale was
concluded ─ clause 17 reads 'Die Ontwikkelaar waarborg dat die
erwe voorsien sal wees . . .', not 'Die
Ontwikkelaar waarborg dat die
erwe voorsien is . . . .' The apparent contradiction would provide
ammunition for cross-examination
of the first respondent had the
applicants requested a reference to oral evidence or trial (which
they did not), but it is not
a sufficient reason for rejecting the
respondents' defence based on the tacit term, particularly for the
reason given in the next
paragraph.
[10] The probabilities support the existence of the
tacit term for which the respondents contend. The erf was 10 500
square
metres in extent. In those circumstances, the following
statement by the first respondent in his answering affidavit has the
ring
of truth:
'[A]s gevolg van die groottes
van die standplase (erf groottes wissel van 1.030 en 1.43 hektaar) is
dit vir my as Ontwikkelaar 'n
onbegonne taak om te bepaal waar iedere
eienaar sy of haar woning gaan oprig en waar hy of sy byvoorbeeld sy
elektrisiteits, water
en rioleringspunt . . . geïnstalleer wil
hê.'
[11] In the circumstances it cannot be said that the
respondents' version that the deed of sale contained the tacit term
on which
they found their defence, is so far-fetched or clearly
untenable that the court would be justified in rejecting this version
merely
on the papers. As counsel on both sides agreed that this
conclusion would dispose of the matter, the following order is made:
1. The appeal succeeds, with costs.
2. The order of the court a quo is set aside and the
following order substituted:
'The application is dismissed,
with costs.'
________________
T D CLOETE
JUDGE OF APPEAL
APPEARANCES:
APPELLANTS: A Vorster
Instructed by Van Rooyen Thlapi Wessels, Pretoria
Symington & De Kok, Bloemfontein
FIRST and SECOND
RESPONDENTS: M Ackermann
Instructed by Couzyn Hertzog & Horak, Pretoria
Hill, McHardy & Herbst Inc, Bloemfontein