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[2021] ZAKZDHC 26
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Stucky v Brechoost CC and Another (D5105/2020) [2021] ZAKZDHC 26 (18 August 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: D5105/2020
In
the matter between:
JANE
STUCKY (nee
TALJAARD) APPLICANT
and
BRECHOOST
CC
(Registration
no. 2007/217839/23) FIRST
RESPONDENT
JACOBUS
FREDERICK IMPI BRECHER SECOND
RESPONDENT
ORDER
1. The
application for condonation for the late filing of the applicant’s
replying affidavit
and heads of argument, are granted;
2. Applicant
is to pay the respondents’ costs of opposition to the late
filing of the replying
affidavit;
3. The
main application is dismissed with costs.
JUDGMENT
Chetty
J
[1] This
is an opposed application in which the applicant seeks the following
relief: ‘That the second respondent
(Mr Impi Brecher) be
compelled to sign the Offer of Purchase in respect of Portion […]
of the Farm Pongola, Number […],
Registration Division HU,
KwaZulu-Natal, for and on behalf of the first respondent;
That
the respondents co-operate and do all that is necessary to pass
transfer of ownership of the abovementioned property to the
Applicant.’
[2] The
applicant is a town planner by profession who formed a business and
personal relationship with the respondents.
The first respondent is
the registered owner of the immovable property that forms the subject
matter of this application (‘the
property’). The
applicant contends that she has concluded a valid agreement for the
sale of the property. The issue to be
determined is whether an oral
agreement between the parties in May 2012, followed by a written
offer signed only by the applicant
in 2018, read conjunctively or
cumulatively with a resolution by the members of the first respondent
in 2018 directing the second
respondent to sign all documents
necessary to effect transfer the property, can in the face of
opposition by the respondents that
they agreed to sell the property
to the applicant, constitute a valid and binding deed of alienation
for the purposes of section
2(1) of the Alienation of Land Act 68 of
1981 (‘the Act’).
[3] A
preliminary issue which arose was the determination of an application
for condonation for the late filing
of the applicant’s replying
affidavit, which was filed some 53 days out of time and the
applicant’s heads of argument
which were filed two days late.
Mr
Schaup
, for the respondents, took no issue with the late
filing of the heads. However, he submitted that the explanation for
the lateness
was incomplete, sparse and did not satisfy the
requirements set out in
Uitenhage Transitional Local Council v
South African Revenue Service
2004 (1) 292 (SCA). Mr
Mullins
,
who appeared for the applicant, conceded that the application for
condonation could have gone further to deal with the complete
timeframe and a detailed account of the delay, which is what the
court in
Uitenhage
set as a standard. It is trite that an
applicant seeking condonation is required to set out the full
circumstances explaining the
causes for the delay in order that the
court may assess whether blame is to be attached to the applicant,
his or her attorney,
or some other party. It is equally well
established that condonation is not to be had for the mere asking and
our courts, in the
exercise of their discretion, must determine
whether good cause has been established for non- compliance with the
rules.
[4] In
attempting to meet this test the applicant explained that in light of
the various annexures to the respondents’
answering affidavit,
she was required to undertake investigations to obtain copies of bank
statements to counter some of the allegations
made by the
respondents. The delay was largely occasioned by the slow response
from the bank, which had been operating with minimal
staff due to the
restrictions imposed by the onset of the Covid-19 pandemic. Strictly
construed, the application for condonation
contains a number of
generalised averments without any attempt to explain the delay in
terms of a timeframe, when the bank statements
became available and
why the affidavit could not have been filed sooner. On this basis it
was submitted that the application for
condonation should be
dismissed and the replying affidavit should be struck out.
[5] It
is unfortunate that much of the annexures which the applicant sought
to reply to in her replying affidavit,
in my view, are largely
irrelevant to the issue to be determined by this court. She, however,
was compelled to locate bank statements
in order to rebut the
allegations of the respondents. It is evident that the parties who
once enjoyed a close relationship are
now at loggerheads with each
other, and that much of what is contained in the annexures put up by
the respondents were intended
as a character assassination in order
to dent the credibility of the applicant as a litigant. For that
reason alone, I am not inclined
to strike out the replying affidavit.
However, non- compliance with the rules by the applicant cannot
simply be glossed over. Litigants
are obliged to comply with the
rules, unless good cause to indicate otherwise has been shown.
[6] The
proper order to be made in the circumstances is that condonation is
granted for the late filing of the
applicant’s replying
affidavit. The applicant is however ordered to pay the cost of
opposition thereto.
[7] Turning
to the facts of the matter as set out in the founding affidavit, the
applicant contends that an oral
agreement was struck between herself,
her late husband and the first respondent, who was represented at all
times by the second
respondent, for the purchase and consolidation of
certain immovable property owned by the first respondent. In support
of this
oral agreement the applicant refers to a rather brief email
dated 10 May 2012 addressed to one Jackie Oosthuizen. It is not clear
from the papers who the recipient is. The email refers to the cost of
consolidating certain erven, supposedly including the farm
which is
the subject matter of this application, which I gather only by
reference to the consolidation of the erven as ‘664
and 665’.
The remainder of the email pertains to the cost of submission of
plans to the surveyor general’s office.
This constitutes the
full extent of the factual matrix pertaining to the oral agreement.
[8] The
next significant development occurred in August 2018 when the
applicant ‘made an offer to purchase’
the property for
the amount of R50 000. The offer to purchase was made ‘pursuant
to [the] oral agreement’ concluded
between the applicant, her
late husband and the first respondent in May 2012. According to the
applicant, following the conclusion
of the offer to purchase ,
various layout plans were drawn and submitted to the local authority
for subdivision and consolidation.
The applicant was tasked with
attending to these matters on behalf of the first respondent.
[9] The
purpose of this application, as submitted by Mr
Mullins
, is to
compel the second respondent to sign the 2018 agreement, which was
prepared at the instance of the applicant. The application,
counsel
submitted, is not to compel the respondents to conclude an agreement
for the sale of the property. Despite the second respondent
having
been tasked in terms of a resolution passed by the members of the
first respondent, being a trust, to sign the necessary
papers in
order for the applicant to take transfer of the property, the second
respondent refuses to do so.
[10] The
contention of the applicant is that she has already paid an amount of
R25 000 to the respondent as an
initial payment towards the purchase
price. To the extent that this gives rise to a dispute of fact as to
whether she has paid
for the property in full, the applicant concedes
that the full purchase price is payable on registration of transfer.
I agree that
this dispute does not justify a referral to oral
evidence. In any event, it is not an issue material to the
determination of the
application.
[11] Apart
from the 2018 offer to purchase signed by the applicant alone,
counsel for the applicant submitted that
the remaining parts of the
jigsaw which constitute the deed of alienation is the resolution
signed by all the members of the first
respondent which records that
the first respondent sells the property to the applicant for the
amount of R50 000 and that the second
respondent is authorised to
sign all papers necessary for the registration of transfer. The
document is undated and it is uncertain
where the meeting of the
members of the first respondent was held when the resolution was
passed.
[12] The
respondents submit that while an oral agreement initially existed in
2012 to sell the property to the
applicant and her late husband, the
discounted price offered in respect of the property has now been
overtaken by the passage of
time. Furthermore, the first respondent
is no longer desirous of selling the property, which it considers to
be valued in the region
of R250 000. Added to this is the strained
relationship that has resulted between the applicant and the second
respondent over
the period 2012 to 2018. The last piece of the
puzzle, according to counsel, is a power of attorney, dated 26
November 2018, in
which the second respondent authorizes the attorney
to proceed with the transfer of the property to the applicant. Mr
Mullins
directed the court to the wording of the power of
attorney which records that ‘the said property having been sold
by me on
19 November 2018 to the said transferee for the sum of R50
000,00’.
[13] It
was submitted on behalf of the applicant that viewed together, the
2018 offer to purchase, the resolution
and the power of attorney,
satisfy the essentials for the alienation of land in accordance with
section 2(1) of the Act. Counsel
submitted that although the
resolution is undated, it constitutes a proper authorisation in which
the second respondent is directed
to sign the papers necessary to
effect transfer of the property. Counsel stressed that the applicant
did not place any reliance
on the oral agreement in 2012. As such, it
is contended that the resolution signed by the first respondent’s
members in 2018
together with the power of attorney is sufficient to
have concluded an agreement in 2018,which passes muster in terms of
section
2(1) of the Act which provides that:
‘
No alienation of
land after the commencement of this section shall . . . 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.’
[14] What
is obviously lacking is the second respondent’s signature to
the 2018 offer to purchase. It was
submitted on behalf of the
applicant that the second respondent has no right to unilaterally
withhold his signature to the transfer
documents in circumstances
where the applicant has fulfilled her obligations. Insofar as the
resolution is concerned, it was submitted
that the members of the
second respondent have not sought to set aside the resolution and
neither has the power of attorney been
revoked by the second
respondent. All of the documents referred to earlier – the 2018
offer to purchase signed by the applicant,
the resolution and the
power of attorney – taken together, must be interpreted as the
formulation of an intention on the
part of the first respondent to
sell the property in question to the applicant. To the extent that
there may be a dispute as to
the amount to be paid should it be found
that the purchase price has not yet been paid in full, the applicant
is satisfied to pay
the remainder of the R50 000 purchase price on
registration of transfer.
[15] Mr
Schaup
however submitted that the case as sketched out by
counsel for the applicant is not one which the respondents have come
to court
to meet. It was contended that indeed it is not a case made
out in the applicant’s founding papers. In argument Mr
Mullins
steered clear of relying on the oral agreement which took place
in 2012. However, if one has regard to the founding affidavit, it
is
evident that this in fact is the bedrock on which the applicant’s
case is built. She states in her affidavit that the
agreement drawn
up in 2018 was made ‘pursuant to an oral agreement’ in
2012. She accuses the respondents of acting
mala fides
in
reneging on the oral agreement, alleging that the second respondent
has acted unjustly and unreasonably in withholding his signature
‘of
the offer to purchase made pursuant to the oral agreement’.
[16] I
agree with Mr
Schaup
that the recurring theme throughout the
applicant’s founding papers is that a binding agreement was
concluded in May 2012.
The problem which the applicant realised, as a
professional town planner, is that an oral agreement does not meet
the requirements
for the alienation of land. It is for that reason
that she now contends that her application is not based on the oral
agreement
but the subsequent documentation drawn in 2018. What is, in
essence, being contended for by the applicant is to convert the
de
facto
oral agreement of May 2018 into a
de jure
agreement,
for which the second respondent’s signature must be secured
through this application. As a fall-back position,
the applicant
relies on the common law principle that a party should be held to
agreements which have been concluded, as to do
otherwise would offend
public policy. The question of necessity which arises is which
agreement is the applicant referring to?
On her own version, she now
jettisons in argument, reliance on the oral agreement. It is for this
reason that the respondents contend
that the applicant has not
established in her papers a cause of action.
[17] In
Northview Shopping Centre (Pty) Ltd v Revelas Properties
Johannesburg CC and Another
2010 (3) SA 630
(SCA);
[2010] 3 All
SA 422
(SCA), para 26, it was held that the object of s 2(1) of the
Act is to ‘ensure certainty in respect of contracts for the
sale of land’.
[18] In
her replying affidavit, obviously having regard to the grounds on
which the relief was being opposed by
the respondents, the applicant
now contends that the purpose of the application is to hold the first
respondent to the terms of
the resolution, compelling him to
discharge his mandate and sign the transfer papers. This stance is
adopted having regard that
to the fact that courts will not order
parties to contract with each other.
[19] In
my view, however the applicant may wish to categorise her claim, the
essence of the application is that
the applicant seeks for the court
to declare the 2018 offer, in light of surrounding factors, to
constitute a valid deed of alienation.
The relief sought in the
notice of motion is essentially consequential relief flowing from the
validation of the oral agreement.
Even if I am wrong in categorising
the applicant’s case in those terms, on the basis of the
argument presented, I am unable
to conclude that all three written
documents which the applicant now seeks to rely on as the basis of
her claim, can be interpreted
as evidence of the intention on the
part of the respondents to sell their property to the applicant.
[20] It
would have been an entirely different scenario had the respondents
entered into a written agreement of
sale with the applicant, only for
the second respondent to refuse to comply with the provisions of a
resolution which authorise
him to sign the necessary documents to
enable transfer to take place. The situation in the present matter is
entirely different
in that there is no written agreement between the
parties as required in terms of Act. As the oral agreement does not
hold weight
to constitute alienation, the applicant relied on the
2018 offer to purchase, signed by her alone, together with the power
of attorney
and the resolution.
[21] In
G B Bradfield
Christie’s Law of Contract
7 ed (2016) at
389 the following is stated with regard to the conclusion of
contracts:
‘
A document that is
invalid because it fails to comply with the statutory requirements
cannot be validated by rectification, and
even if this rule leads to
anomalous results it must be maintained so that the statutory
requirements are not subverted. Nevertheless
rectification can be
granted if the written contract as it stands complies with the
statute . . .’
See
also P M Wulfsohn Formalities of Sale of Land Act (71 of 1969) at 219
and
Magwaza
v Heenan
1979 (2) SA 1019
(A).
[22] The
applicant, in bringing this application, is attempting to secure
through the courts what she has been
unable to achieve through the
normal process of bargaining with a seller to purchase immovable
property. The Act refers to ‘a”
deed of alienation”
indicative of a single document which satisfies the requirements in
section 2(1). What is contended by
the applicant is a novel approach
of taking a collective of documents – none of which on their
own would meet the requirements
of the Act – but which must be
seen as a collective, from which the intention must be inferred that
the respondents intended
to sell the property to the applicant. A
contract of sale is a consensual agreement by which one of the
contracting parties (the
seller) binds itself to the other (the
buyer) to exchange a thing for a definite sum of money (the price)
which the buyer promises
to pay to the seller. The essentials of the
contract are agreement upon the
merx
, the price and the
obligation of the seller to deliver the
merx
to the buyer. The
approach contended for by the applicant in my view would side-step
and circumvent the provisions of the Act.
[23] In
light of the above, I am satisfied that the following order should
issue:
1. The
application for condonation for the late filing of the applicant’s
replying affidavit
and heads of argument, are granted;
2. Applicant
is to pay the respondents’ costs of opposition to the late
filing of the replying
affidavit;
3. The
main application is dismissed with costs.
M
R Chetty
Appearances
For
the applicant: Mr
KC Mullins
Instructed
by: Sasha
Lee Govender
7
Bayview Centre
310
Lenny Naidu Drive
Ref: SLA/S007
Email:
admin@attorneyssashalee.co.za
c/o Fathima
Zara Khan & Associates
49
Berea Park Road
Musgrave
For
the respondent: Mr
D Schaup
Instructed
by: Botha
& Van Dyk inc
c/o Venns
attorneys
Lakeside
Building, Derby Downs Office Park
Durban
Email:
joe@venns.co.za
Ref: Joe
Askew/bmg/86203604/B17(J)
Date
reserved: 13
August
2021
Date
of Judgment: 18
August 2021