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[2023] ZAKZPHC 148
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Zenith Estates CC v Blue Gum Estate (Pty) Ltd and Another (8294/22P) [2023] ZAKZPHC 148 (27 November 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, PIETERMARITZBURG
CASE NO: 8294/22P
In the matter between:-
ZENITH ESTATES
CC
APPLICANT
and
BLUE GUM ESTATE (PTY)
LTD
FIRST RESPONDENT
REGISTRAR OF
DEEDS
SECOND RESPONDENT
JUDGMENT
ANNANDALE,
AJ
[1]
The issue in this application is whether the applicant validly
exercised
an option to acquire a portion of land referred to as ‘the
House Sub-division’ and is consequently entitled to an order
compelling transfer.
[2]
The first respondent resists the application, contending that the
option
was incapable of being exercised as four separate subdivisions
were created instead of the House Sub-division, alternatively that
the option was not validly exercised. The second respondent, the
Registrar of Deeds has played no part in the proceedings.
[3]
The matter has a long history but, for reasons unknown, various
aspects
of that history which one would expect to be canvassed in the
affidavits are not mentioned by any of the parties.
The
facts
[4]
On 11 August 2006 the applicant and the first respondent concluded an
agreement of sale of a commercial timber farming enterprise,
comprising the land and timber farming business on the farm Zenith
Estates Umhlali (the sale agreement). I refer to the farm Zenith
Estates as defined in the sale agreement as ‘the whole
property’ to distinguish it from the subdivisions at issue in
these proceedings and because that is how it is referred to
in
various agreements to which reference will be made in this judgment.
[5]
In terms of clause 6.1 of the sale agreement, the first respondent
granted
the applicant ‘the sole and exclusive right and option
at (its) written election’ to purchase the House Sub-division
for the sum of R900 000.00 together with VAT if applicable (the
option). The House Sub-division was defined as a proposed new
subdivision of the whole property containing the existing homestead
as depicted on a layout plan which was referenced in and annexed
to
the sale agreement.
[6]
The sale agreement required the option to be exercised by the earlier
of either 31 July 2015 or 90 days after the first respondent
furnished the applicant with the approved sub-divisional diagram of
the House Sub-division together with any other documents, approvals
and items required in law to enable the applicant to take transfer
of
the House Sub-division. The date of 31 July 2015 was subsequently
extended to 31 July 2020 by an addendum which otherwise left
the sale
agreement unchanged.
[7]
At the vanguard of the first respondent’s opposition to the
application
in its answering affidavit were arguments that the
applicant’s claim had prescribed or lapsed prior to 31 July
2015. At the
start of the hearing however, counsel for the first
respondent, abandoned reliance on these arguments
[8]
Clause 6.3 of the sale agreement provided that pending the exercise
of
the option, the first respondent was obliged immediately to
proceed with and do all things reasonably necessary to procure that
the whole property was sub-divided and developed, either in the whole
as a complete residential township with numerous subdivisional
lots,
one of which would comprise the House Sub-division, or that the whole
property was subdivided and developed in part into
at least two
subdivisions, one of which would be the House Sub-division.
[9]
It is apparent from this clause that at the time the agreement of
sale
was concluded, the parties envisaged the creation of a single
subdivision which would constitute the House Sub-division as defined.
[10]
The first respondent did procure that the whole property was
sub-divided and developed
as a residential estate with numerous
sub-divisional lots over a period spanning some seven years. For
reasons which are not explained
in any of the affidavits however, the
first respondent did not create the House Sub-division as a single
subdivision. Instead,
the first respondent created four separate
sub-divisions out of the area of land constituting the House
Sub-division.
[11]
Although this happened pursuant to planning and development
applications submitted by the
first respondent, it is the first
respondent’s case that the creation of the four subdivisions
rendered the option incapable
of acceptance as the
merx
to
which it related no longer existed.
[12]
The applicant claims to have exercised the option on 31 July 2015. It
relies on a letter
of that date sent by its attorneys to the first
respondent and its attorney, Ms Halstead which stated:-
‘
We advise that our
client, who is described as the “Seller” in the said
“First Agreement of Sale”, hereby
exercises its right and
option to purchase the House-Subdivision from Blue Gum Estate
Proprietary Limited.’
[13]
The letter of 31 July 2015 went on to state: ‘(i)n acceptance
of this right, please
also find the following documents’ which
comprised an agreement signed by the applicant in respect of ‘the
purchase
of House Sub-Division’ and the annexures to that
agreement. Of importance for the first respondent’s case is
annexure
E, a resolution passed at a meeting of the applicant on 30
July 2015 and signed by all its members.
[14]
The applicant asserts that the terms of the annexed agreement had
been previously agreed
between the parties, but this is disputed by
the first respondent. It is however common cause that the first
respondent did not
sign the agreement and so I shall refer to it as
‘the proposed agreement’.
[15]
The proposed agreement referred to the fact that the first respondent
had caused the whole
property to be renumbered and was in the process
of sub-dividing it into 32 erven as set out on a General Plan which
had been provisionally
approved by the Surveyor General and was
annexed as ‘A’ to that agreement. The proposed agreement
records that
erven 503 to 506 depicted on the General Plan
constitute the House Sub-division and the agreement is for the
acquisition of those
four subdivisions.
[16]
The proposed agreement records that the purchase price for the four
sale erven was the
option price of R900 000 together with what is
described as ‘a separate amount being the additional
Sub-division Development
costs for the Substituted Sale Erven’
of R372 000.00 for the additional costs of ‘3 extra Erven
@ R124 000.00’.
[17]
The applicant’s unanimous resolution, annexure ‘E’
(the resolution) was:-
‘
That the CC
acquires the Sale Erven 503, 504, 505 and 506 (inclusive), being
components of Erf 489 Sheffield Manor, to Zenith Estates
CC pursuant
to a valid exercise of its Option to Purchase all as provided in the
draft Agreement prepared by Tomlinson Mnguni James
Attorneys which
was tabled and approved at the meeting.’
[18]
Despite the unequivocal recordal in the letter of 31 July 2015 that
that the attorney’s
client, the applicant, ‘hereby
exercises its right and option to purchase the House-Subdivision’,
the first respondent
contends that the letter of 31 July 2015 was not
a valid exercise of the option for four reasons. First, the property
described
as the House Sub-division did not exist and was in any
event different property to the four separate subdivisions which were
created
and which were referenced in the proposed agreement and the
resolution. Consequently, the proposed agreement related to different
pieces of land being acquired than were specified in the option.
Second, the resolution did not authorise the applicant’s
attorneys to exercise the option on the applicant’s behalf.
Third, the proposed agreement was not to acquire at the price
of R
900 000 stipulated by the option, but in the different and
increased amount of sum R1.272 million. Fourth, payment of
the price
was not tendered.
[19]
I
will deal with the merits of these contentions in due course. It is
however notable that they were raised for the
first time in the
answering affidavit. Until then, and over a period spanning
several years, both the applicant and the first
respondent had
accepted that the option had been validly exercised and conducted
themselves accordingly. The only area of contestation
was payment for
servicing the four subdivisions. This is relevant and admissible
contextual evidence of the manner in which
the parties
implemented their agreement.
[1]
Four examples suffice for purposes of illustration.
[20]
On 11 August 2015 there was an email exchange between the parties’
attorneys. It
was initiated by the applicant’s attorney with
reference to their letter of 31 July 2015 some ten days before and a
telephone
conversation held between the attorneys the same day. The
applicant’s attorney wrote ‘as discussed, Zenith Estates
cc has exercised its option to purchase which was created in the
“First Agreement of Sale”. Kindly advise if you have
presented the agreement in respect of the purchase of the
House-Subdivision to your clients and advise if they were happy with
the agreement.’
[21]
The first respondent’s attorney replied as follows: ‘(a)s
discussed telephonically
last week, although your client has
exercised the option there are a number of issues that need to be
discussed prior to any agreement
being concluded. It is
important that all parties fully understand the criteria set out in
the Tribunal Judgment when the
development was approved and precisely
what is required to take place to enable our client to pass transfer
of the 4 sub-divisions
to your client’. This exchange conveys
that whilst the first respondent and its attorneys accepted that the
option had been
exercised, there would need to be further engagement
on the details of any agreement giving effect to the valid exercise
of the
option in the form of a sale agreement which would be required
to pass transfer.
[22]
In 2019, the shareholding in the first respondent changed. The sale
of shares agreement
contains the following clause:
’
10.
Retained Erven
The purchaser
acknowledges that:
10.1 in terms of
the agreement of sale concluded between the Company and Zenith,
Zenith was granted an option to purchase the subdivisions
reflected
in red on the Layout Plan annexed hereto marked “A” (“the
Retained Erven”) for the sum of
R900 000 (Nine Hundred
Thousand Rand)
plus contributions and Zenith has exercised its
option in the regard thereto;
10.2 the Company is
obliged to transfer the Retained Erven to Zenith as soon as it is in
a position to do so;
10.3 Zenith is
aware of the fact that the Company will only be in a position to
transfer the Retained Erven to it once the relevant
services have
been installed and the required certificates in terms of the
applicable legislation have been issued by the Municipality
and/or
other relevant authorities.’
[23]
In 2021, the parties’ representatives were corresponding
regarding the bulk costs
for the servicing of all four sites to ready
them for registration and transfer. Those exchanges suggest that at
that time the
cost was in the region of R527 000.00 excluding costs
for sewer, water and electrical connection fees.
[24]
In April 2022, Mr Ingo Roolf, a representative of one of the new
shareholders in the first
respondent who had not been involved
in the sale agreement in 2006, stated the first respondent’s
position plainly
when corresponding – with a degree of
irritation – with the applicant’s attorneys in the
following terms:
‘
..your
clients have the time until the 31
st
March 2022 to choose
one of our options otherwise they will get what was agreed in the
contract between our company and Zenith
cc. I also wrote that the 1
st
of April we will start to consolidate the 4 erven to one if I don’t
get an answer from you…
By the way, your clients
have rights against us because of an agreement between us and them.
The RoD has nothing to do with the
rights of your clients. The RoD
describes rights and duties of Blue Gum Estates (Pty) Ltd. At
the moment the land your clients
want to purchase is still in our
ownership. Your clients didn’t pay anything to us and the
land is not transferred.
I don’t understand why you write pages
about this RoD. Even if this RoD would make it impossible to transfer
the land to
your clients, this would be our problem and not your
problem as we have to deliver what is written in the agreement of our
company
and Zenith cc’.
[25]
The ‘options’ which the applicant had to exercise by 31
March 2023 to which
Mr Roolf refers were three potential solutions to
the dispute in which the parties had found themselves which had been
proffered
by the first respondent in an email of 11 February 2022.
They ranged from excising what is described as ‘the 1 existing
erf’
from the residential estate the first respondent had
developed, to the applicant acquiring four erven ‘after
the subdivision
of the 1 existing erf’ in exchange for a
contribution to costs of a little over R 3 million.
[26]
The reference to ‘the RoD’ in Mr Roolf’s email is
to the Record of Decision
in respect of the development of the whole
property by KwaDukuza Municipality (ROD). An amended ROD issued in
February 2022 set
numerous conditions with which the first respondent
was required to comply before the municipality would issue the
certificate
required by
section 53
of the
Spatial Planning and Land
Use Management Act 6 of 2013
, which is a prerequisite for the
registration or transfer of any property resulting from a land
development application. Those
conditions included the provision of
services to the boundary of each erf in the development.
[27]
The dealings outlined above demonstrate that the applicant and first
respondent understood
and accepted that the option had been exercised
but were at times at odds about payment for the additional costs
occasioned by
the potential creation of four subdivisions instead of
one.
[28]
It is apparent from the alternatives proffered by the first
respondent in February 2022,
that at the time of the correspondence
the four subdivisions had not yet been registered. This only occurred
on 13 May 2022 when
certificates of registered title were issued,
recording the correct descriptions of the four subdivisions as
follows:-
[a]
Erf 1450 Sheffield Beach, in extent 2498 square metres, as will more
fully appear
from General Plan S.G. Number 907/2021, held by
Certificate of Registered Title number T14766/22;
[b]
Erf 1451 Sheffield Beach, in extent 2500 square metres, as will more
fully appear
from General Plan S.G. Number 907/2021 held by
Certificate of Registered Title number T14767/22;
[c]
Erf 1452 Sheffield Beach, in extent 2498 square metres, as will more
fully appear
from General Plan S.G. Number 907/2021 held by
Certificate of Registered Title number T14768/22;
[d]
Erf 1453 Sheffield Beach, in extent 7437 square metres, as will
more fully appear
from General Plan S.G. Number 907/2021 held by
Certificate of Registered Title number T14769/22.
[29]
It is against this factual matrix that the first respondent’s
legal contentions fall
to be determined.
The
House Sub-division and the four separate subdivisions created instead
[30]
The first respondent contends that as at 31 July 2015 the House
Sub-division did not exist
as a separate subdivision. What existed
instead were four different registerable subdivisions. As stated in
heads of argument filed
on the first respondent’s behalf: ‘the
fact that these four subdivisions make up the land that comprised the
erstwhile
proposed House Sub-division is irrelevant. What is relevant
is that they are four distinct and separately registerable
subdivisions.’
In argument, counsel for the first respondent
submitted that the creation of the four subdivisions destroyed the
option. I disagree.
[31]
The submission that the four separate subdivisions were registrable
at the time the applicant
purported to exercise the option is based
on evidence contained in supplementary affidavits deposed to by the
first respondent’s
attorneys which sought, in large part, to
deal with the history of the whole property and the various planning
and subdivisional
approvals. The first respondent had sought to
introduce this affidavit less than 10 calendar days before the matter
was due to
be heard as an opposed motion, several months after the
opposed hearing date had been allocated. The applicant objected to
the
late introduction of the affidavits and at the commencement of
the hearing counsel for the first respondent abandoned reliance on
them.
[32]
As matters stand then, there is no evidence before me which
establishes whether the four
subdivisions were separately
registerable on 31 July 2015. Such evidence as there is, including
the language employed in the
proposed agreement,
suggests that the subdivisions were still in the process of being
created at that date, not portions of land
which were already
separately registerable.
[33]
Be
that as it may, even if the four subdivisions were separately
registerable in July 2015,
the
option related to an area of land which was identifiable from the
description in the sale agreement as required for a valid
option in
respect of immovable property .
[2]
The agreement of sale defined the House Sub-division and depicted it
on a layout plan which also formed part of the sale agreement.
A
valid option thus existed in relation to that physical land. Whether
that same area on the ground became differently described
due to
planning applications made by the first respondent, or ultimately
became four separate subdivisions instead of one does
not change the
identity of the
merx
,
much less mean that it ceased to exist on the creation of the four
subdivisions. In addition, and in any event, as Mr Roolf of
the first
respondent understood, the four subdivisions could always be
consolidated to create a single erf.
[34]
I therefore find that the fact that the House Sub-division was not
created did not mean
the option was incapable of being exercised. By
parity of reasoning, the fact that the proposed agreement and the
resolution referred
to the acquisition of the four subdivisions
created or to be created on that same area of land did not mean that
they related to
anything other than the
merx
that was the
subject matter of the option. There was a clear intention to exercise
the option to secure that parcel of land, even
if it was now
differently described.
The
letter of 31 July 2015 and its annexures
[35]
The first respondent advances additional reasons as to why it now
views the applicant’s
exercise of the option as invalid. These
reasons are based in part on its principal contention that the House
Sub-division and
the four separate subdivisions over the same area
are two different things, and in part on its interpretation of the
letter of
31 July 2015 read together with its annexures even if the
House Sub-division and the four separate erven are the same
merx
.
As I have already found against the first respondent on its principal
contention it remains necessary only to consider the extent
it which
its interpretation is sustainable when one accepts that references to
the four separate subdivisions as opposed to the
House Sub-division
matter not.
[36]
The first respondent stresses that the letter cannot be read in
isolation and so argues
that the applicant’s attorney’s
unequivocal statement that her ‘client, who is described
as the “Seller”
in the said “First Agreement of
Sale”, hereby exercises its right and option to purchase the
House-Sub division from
Blue Gum Estate Proprietary Limited’
cannot be viewed as a valid exercise of the option because it must be
construed together
the proposed agreement and the resolution.
[37]
Whilst it
is so that the letter must be construed as a whole, it must also be
construed in context and purposively with due regard
to its language
in a business-like manner which does not render an absurd result
[3]
but a commercially sensible meaning.
[4]
[38]
I
engage in that exercise below as I am required to do,
[5]
but it is worth pausing for a moment to consider the implications and
results of the first respondent’s interpretation which
are as
follows. The applicant plainly wanted to exercise the option and
thought it had done so by the letter. That view was shared
by the
first respondent and its attorneys for seven years. By happenstance
however, because the applicant’s attorney had
authored the
letter and not the applicant, and the applicant had offered to pay an
amount in addition to the option price, the
applicant had not
actually exercised the option and its right to do so has lapsed.
[39]
The first respondent’s construction pays insufficient heed to
the purposes of the
letter and purpose of the proposed agreement and
fails to differentiate between them.
[40]
The option contained no formalities for its exercise save that it be
in writing before
a specified date. If no proposed agreement had been
annexed to the letter of 31 July 2015 that would not have invalidated
the exercise
of the option. The option contained only a description
of the
merx
and the acquisition price. This, together with the
requirements of the
Alienation of Land Act 68 of 1981
, meant that a
further written agreement would be required for transfer to be
registered once the option had been exercised.
[41]
Within this context, the letter was intended to serve two purposes.
The first was to convey
the applicant’s exercise of its option
in writing. The second was to set out the terms upon which the
applicant proposed
the necessary further agreement should be
concluded.
[42]
As to the first purpose the letter was intended to serve, this is
revealed by the recordal
of the applicant’s exercise of the
option using the language of the sale agreement and referencing it
specifically. The submission
by counsel for the first respondent that
the attorney who authored the letter was not authorised by the
resolution to exercise
the option, loses sight of the fact that the
attorney was simply conveying her client’s exercise of its
rights, not purporting
to exercise them herself. Even if one could
style the letter as a purported exercise of the option by the
applicant’s attorney,
it would be an exercise as agent on
behalf of her client as disclosed principal, not
qua
principal.
[43]
The resolution must also be construed in this context and together
with the proposed agreement.
It is a resolution to acquire the four
subdivisions pursuant to a valid exercise of what is referred to in
the resolution as ‘its
Option to Purchase’. The same
term, with identical capitalisation, is defined in the proposed
agreement to which the resolution
refers. It is clear that the term
utilised in the resolution was intended to bear the same meaning as
in the draft agreement
where it is defined as the ‘Option
to Purchase the House Sub-Division as set out in the First Sale
Agreement’. The
latter is in turn defined as the
agreement of sale concluded in August 2006. The resolution endorses
acquisition of the land
constituting the House Sub-division on the
terms in the proposed agreement, which it seeks to conclude pursuant
to the valid exercise
of that option.
[44]
As to the second purpose of the letter, the terms upon which the
applicant proposed that
the option it had exercised should be
implemented were contained in the proposed agreement. The applicant
understood those terms
to have been agreed, but as this is disputed
by the first respondent, the proposed agreement was no more than an
offer as to the
additional terms not already determined by the
option.
[45]
The first respondent styles that offer as destructive of an
acceptance of the option because
it was not at the price of R 900 000
stipulated in the option but R 1,272 million. That contention
cannot be sustained.
[46]
The option stipulated a price and the letter did not purport to
change that price, nor
did the proposed agreement, which refers to R
900 000 as the sum to be paid for the option to purchase, and to
the amount
of R 372 000 as ‘a separate amount’ in
respect of the additional sub-divisional development costs arising
from
the creation of four erven. The fact that the proposed agreement
contained an offer to pay amounts in addition to the option price,
specifically described as being separate, does not mean that the
applicant had failed to exercise the option at the stipulated
price.
[47]
The first respondent also contends that the option was not validly
exercised as the purchase
price was not tendered. There is in my view
no merit to this contention. Clause 6.3 of the sale agreement only
required payment
against transfer. In an email dated 16 March 2022 Mr
Roolf recorded that the first respondent had not yet serviced
the four
subdivisions and could not therefore secure the
section 53
certificates required to pass transfer. Payment of the purchase price
was however tendered and secured in the applicant’s
attorneys’
trust account April 2022 which is shortly after the certificates of
registered title were issued and the first
respondent was in a
position to pass transfer.
[48]
I consequently find that the exercise of the option was conveyed in
writing as required
by the letter of 31 July 2015.
[49]
Ordinarily that would mean that the first respondent should be
directed to do all such
things as might be necessary to transfer the
land comprising the House Sub-division as defined in the sale
agreement without more.
However, first respondent contends that the
agreement of sale only obliged it to provide the House Sub-division
with access to
supply routes for the provision of services, not the
services themselves. That being so, the argument ran, it could only
be compelled
to give transfer of those erven to the applicant against
payment of the costs of providing the services to them, alternatively
payment of the sum representing the difference between the cost of
providing services to the four subdivisions and to a single
subdivision if one had been created. It is therefore necessary
to consider whether a rider to this effect should be included
in the
order compelling transfer.
The
cost of servicing the four subdivisions
[50]
The first respondent has not stated that it has in fact supplied
services to the four subdivisions.
This had apparently not yet
occurred by the time the replying affidavits were filed. It is
however apparent from the amended ROD
that the first respondent will
need to provide services to the boundaries of all four
subdivisions in order to pass transfer
to the applicant. I therefore
deal with this argument on the basis that the first respondent either
already has or will have to
incur the costs of servicing the four
subdivisions.
[51]
The first respondent submitted that as clause 6.5 only requires it to
provide supply routes
for amenities, the applicant ought to pay for
the costs of the services installed to each of the four sub-divisions
as this is
a benefit to which the applicant is not contractually
entitled. The clause reads as follows:
6.5
Simultaneously with the transfer of the House Sub-division into the
name of the Seller the Purchaser shall
cause to be registered over
the whole of the remainder of the property sold by the Seller to the
Purchaser, a six (6) metre general
right of way servitude in favour
of the Seller as owner of the House Sub-division granting it full
access to the House Sub-division
from the Public Road together with
electricity, water and amenities supply routes therein
.
The exact final location and route of such servitude shall be decided
by agreement by the Parties after a sub-divisional
development plan
has been formulated by the Purchaser and shall be recorded in a
servitude diagram to be approved by the Surveyor
General at the cost
of the Purchaser under this Sale Agreement.’ (emphasis added)
[52]
Clause 6.5 of the sale agreement cannot be read in isolation. It must
be read with clause
6.4 which provides:
‘
6.4
The Purchaser under the current Sale Agreement as the new registered
owner of the whole property shall pay for and
be
liable for all of
the costs of creation of the new House Sub-division including survey
and compliance with all conditions of approval
and other regulatory
approvals required in law so as to give effect to the registrability
of the House Sub-division
. The transfer documents and
registration into the Purchaser’s name shall be prepared and
registered by the Conveyancers at
the cost of Zenith Estates CC.’
(emphasis added)
[53]
Clause 6.4 obliges the first respondent to pay all the costs of
creating the new House
Sub-division as well as the
costs
of complying with conditions of approval.
One of the
conditions imposed by the amended ROD was the provision of services -
not just supply routes - to the boundary of each
of the subdivisions
that the first respondent had chosen to create. The provision of such
services is therefore required in order
for the first respondent to
comply with the conditions of approval, and consequently it is the
first respondent which is liable
for the costs thereof. The first
respondent would therefore also have been obliged to bear the costs
of providing services to the
boundary of the House Sub-division if it
had chosen to create only a single subdivision.
[54]
It is so that the sale agreement envisaged the creation of a single
subdivision and not
four. That, coupled with the circumstances under
which the first respondent chose to create four subdivisions,
and the conduct
of the parties described above which suggests that
the applicant had agreed to pay whatever additional costs were
occasioned by
servicing four erven rather than one, may mean that the
first respondent has a claim for the additional servicing costs
either
in contract or enrichment.
[55]
It is however not only unnecessary for me to make any finding in this
regard, it would
be improper for me to do so as the first respondent
did not institute a conditional counter claim for payment of these
amounts
against transfer. As the sale agreement obliges the first
respondent to bear the costs of approval before the transfer can be
effected
there is no room for the application of the
exceptio non
adempleti contractus
. Confined as I am to the evidence the
parties have chosen to present, there is no basis upon which such
payment could be ordered
in these provceedings. This does not leave
the first respondent without recourse. If it has a claim, it is still
free to pursue
it.
Order
[56]
I consequently grant the following order:
1. It
is declared that the applicant has validly exercised the option
contained in clause 6 of the Agreement of
Sale of Commercial Timber
Farming Enterprise concluded between the applicant and the first
respondent on 11 August 2006.
2. The
first respondent is directed to do all such things as are necessary
to transfer to the applicant the following
immovable properties
against payment of the purchase price of R 900 000:
[a] Erf 1450
Sheffield Beach, in extent 2498 square metres, as will more fully
appear from General Plan S.G. Number 907/2021,
held by Certificate of
Registered Title number T14766/22;
[b] Erf 1451 Sheffield
Beach, in extent 2500 square metres, as will more fully appear from
General Plan S.G. Number 907/2021 held
by Certificate of Registered
Title number T14767/22;
[c] Erf 1452 Sheffield
Beach, in extent 2498 square metres, as will more fully appear from
General Plan S.G. Number 907/2021 held
by Certificate of Registered
Title number T14768/22;
[d] Erf 1453 Sheffield
Beach, in extent 7437 square metres, as will more fully appear
from General Plan S.G. Number 907/2021
held by Certificate of
Registered Title number T14769/22.
3. The
first respondent is directed to sign all such documents and to do all
such things as are required in order
to give effect to the order in
paragraph 2 above, within five calendar days of being called
upon in writing to do so by the
conveyancers attending to the
transfer.
4. The
first respondent is directed to pay the costs of the application,
including all costs previously reserved.
ANNANDALE,
AJ
JUDGMENT
RESERVED:
28 JULY 2023
JUDGMENT
HANDED DOWN: 27 November 2023
Appearances
For applicant:
MS L MILLS
Instructed by:
DeRauville Inc
c/o Tatham Wilkes
Inc
200 Hoosen Haffajee
Street
Pietermaritzburg
Email:
Ureesha@tathamwilkes.co.za
For first
respondent:
MR A J RALL SC
Instructed by:
Cox Yeats Attorneys
c/o Stowell &
Co
295 Pietermaritz
Street
Pietermaritzburg
Tel: 033 845
0500
Email:
stephanieb@stowell.co.za
Ref: G J
Campbell/Cox/0682
For
second respondent:
No
appearance
[1]
Comwezi
Security Services v Cape Empowerment Trust Ltd
2012 ZASCA 127
(21
September 2012) para 15.
[2]
Du
Plessis NO and another v Goldco Motor & Cycle Supplies (Pty) Ltd
2009 (6) SA 617
(SCA) para 19.
[3]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) paras 18 -23.
[4]
Novartis
SA (Pty) Ltd v Maphil Trading Ltd
2016 (1) SA 518
(SCA) paras 24–
25.
[5]
Auction
Alliance v Wade Park
2018
(4) SA 358
(SCA) para 19.