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[2020] ZAECPEHC 15
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Joycor Enterprises (Pty) Ltd v Draai and Others (2178/18) [2020] ZAECPEHC 15 (28 May 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NO.: 2178/18
Heard
on: 19 May 2020
Delivered
on: 28 May 2020
In
the matter between:
JOYCOR
ENTERPRISES (PTY)
LTD APPLICANT
and
BENJAMIN PAUL
DRAAI First
Respondent
KAREN ANN
DRAAI Second
Respondent
RAYNARD VICARTO
BRASS Third
Respondent
SHEREEZ GWENDOLENE
BRASS
Fourth Respondent
THE REGISTRAT OF DEEDS
KING WILLIAMS
TOWN Fifth
Respondent
RAYNARD VICARTO BRASS
N.O. Sixth
Respondent
SHEREEZ GWENDOLENE
BRASS N.O.
Seventh
Respondent
JUDGMENT
GQAMANA
J
[1]
This is an application for leave to appeal against my Order and
judgment which was
handed down on 3 March 2020. Only the third,
fourth sixth and seventh respondents are contesting my judgment.
The first
and second respondents, the previous owners of the property
in question have not participated in the present application.
[2]
The factual matrix relevant hereto are well set out in the judgment.
In brief, the
applicant and the first and second respondents entered
into an agreement of sale on 17 February 2017 in terms of which, the
applicant
purchased from them the property relevant hereto.
Such agreement contained some suspensive conditions. It is
those
suspensive conditions which Mr Beyleveld argued that they were
not fulfilled hence his submissions that there was no valid contract
between the applicant and first and second respondents. The
argument to a greater extent was a recitation of their defence
in the
main application.
[3]
It was ardently argued by Mr Beyleveld SC that the applicant has not
discharged the
onus
and
there were no objective facts to support Mr Bester’s view and
that his evidence was hearsay. The argument was advanced
that,
absent an affidavit from the bank the applicant has not discharged
the
onus.
Reliance
was placed in
Rees v Haris
2012 (1)
SA 583
(GSJ
)
at 596, for the above argument. The principle enunciated therein is
accepted. However in the instant matter, as correctly pointed
out by
Mr Buchanan SC that, it was not only Mr Bester’s say so that
there was fulfilment of the conditions but the first
and second
respondents unequivocally in their founding affidavit in the eviction
application confirmed that the applicant (“Joycor”)
had
complied fully with its obligations. In addition thereto it is
also important not to lose sight on the fact that Mr Bester
was the
agent, the attorney and the conveyancer for the first and second
respondents. It was his obligation and responsibility
to ensure
that the conditions had been fulfilled and on more than one occasion
he confirmed under oath that all the suspensive
conditions were
fulfilled. Coupled with that, his letter (at page 70 of the index)
sets out in detailed how the applicant complied
with those
conditions. There is no more evidence stronger than what is
already presented by the applicant in the form of
the confirmatory
affidavits from Mr Bester, his letter, the first and second
respondents founding affidavit in the eviction application
which all
supports the Applicant’s contention that all the suspensive
conditions were fulfilled is required.
[4]
Another fundamental point is that the validity of the first sale
agreement was confirmed
by Mageza AJ in his judgment in the eviction
application. Again as correctly pointed out by Mr Buchanan SC
that, the same
sale agreement was in dispute in the eviction
application and Mageza AJ made the finding in that regard and that
finding stands.
[5]
In relation to the contention that the Trust was a
bona
fide
purchaser of the property, Mr
Buchanan SC, correctly in my view argued that all the parties had
knowledge of the sale agreement
between the applicant and first and
second respondents. Reliance on the advice from the first and
second respondents erstwhile
attorneys that such sale fell through
does not alter the factual position that they were aware of the prior
sale agreement.
[6]
In terms of
s 17
(1) of the
Superior Courts Act 10 of 2013
, leave to
appeal may only be granted where the Judge concern is of the opinion
that the appeal would have a reasonable prospects
of success.
The bar of the test that has now to be applied to the merits of the
proposed appeal before leave should be granted
is higher and
stringent compared to the previous test under the now repealed
Supreme Court Act 59 of 1959
[1]
.
[7]
Having considered all the submissions and the grounds upon which the
present respondents
seek to rely upon in this application for leave
to appeal, I am not persuaded that there are reasonable prospects of
success in
an appeal.
[8]
In the circumstances, I made the following order:
1.
The application for leave to appeal is dismissed with costs.
_____________________________
N. GQAMANA
JUDGE
OF THE HIGH COURT
REPRESENTATIVES
For the Applicant
: ADV R. G. BUCHANAN SC
Instructed
by
: Greyvensteins Attorneys
For the 3
rd
,
4
th
, 6
th
and 7
th
Respondents :
ADV A. BEYLEVELD SC and MR BANDS
Instructed
by
: Swarts Attorneys
[1]
See
Notshokovu v S Unreported Case 157/15 dated 7 September 2016 at
para2 and also The Mont Chevaux Trust (IT 2012/2018) v Tina
Goosen,
Unreported LCC Case No.: LCC14R/2014 dated 3 November 2014).