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[2023] ZAECELLC 3
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Dyobiso v Dyobiso and Others (EL1848/2022) [2023] ZAECELLC 3 (14 February 2023)
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT COURT)
NOT
REPORTABLE
Case
no: EL1848/2022
In
the matter between:
MXOLISI
ABRAHAM DYOBISO
Applicant
and
BULELWA
PROMOTIA DYOBISO
First Respondent
MUZINKANHLANHLA
MNTAMBO
Second Respondent
SIPHAMANDLA
MNTAMBO
Third Respondent
JUDGMENT
Govindjee
J
[1]
The applicant (‘Mr Dyobiso’)
and the first respondent (‘Mrs Dyobiso’) are married out
of community of property,
with the accrual system, and are in the
process of being divorced. The title deed of Erf 2[...] East London
(‘the property’)
reflects that their respective estates
have an undivided half share in the property. Mr and Mrs Dyobiso
intended to sell the property
and entered into a deed of sale with
the second and third respondents (‘the purchasers’)
during July 2022. After the
necessary documentation pertaining to the
transfer of the property had been lodged with the Registrar of Deeds,
Mrs Dyobiso decided
to cancel the sale and retain the property. Mr
Dyobiso seeks an order compelling Mrs Dyobiso to cause transfer of
the property
to pass to the purchasers in terms of the deed of sale.
[2]
The purchasers previously attempted to
purchase the property but failed to comply with a suspensive
condition, so that the sale
fell through. It is common cause that the
present sale is also subject to a suspensive condition that the
purchasers obtain a loan,
secured by the registration of a mortgage
over the property, in the sum of R3 400 000. There is,
however, a dispute as
to the date by which the loan had to be
obtained in terms of the wording of the suspensive condition.
[3]
Annexure ‘FA 2’ to the founding
papers contains a copy of the deed of sale. Clause 21 is headed
‘Suspensive
Conditions’. The typed portion provides as
follows:
‘
This
transaction is subject to a financial institution approving in
principle on its normal terms and conditions pertaining to a
transaction of this nature, a loan of not less than R ………….
before or on ………….
to be secured by the
registration of a First Mortgage over the within property. The
Purchaser shall forthwith apply for the necessary
bond finance and
furthermore irrevocably appoints Century 21 East London to act as his
/ her agent for the purpose of securing
the necessary bond finance.’
[4]
Three
differently signed copies of clause 21, dealing with the suspensive
condition, are attached to the papers, without further
explanation.
[1]
In each instance
the amount of ‘R 3 400 000’ has been inserted
in writing. In the first copy, the second
blank space reflects ‘8
Aug 2022’ in writing, but the ‘8’ has been crossed
out and replaced with ‘12’.
No initials or signature
appear alongside any of that writing, although four signatures /
initials appear above that clause alongside
clause 19.2, which has
been struck out. In the second instance, the appearance of clause 21
is the same but, in addition, a single
signature appears alongside ‘R
3 400 000’. In the third, a particularly poor copy of
the relevant page, signatures
appear on both sides of the page
alongside the space where the date has been inserted in clause 21.
Again, ‘8’ Aug
2022 has been crossed out and replaced
with ‘12’.
[5]
Mr
Dyobiso submitted that the sale was subject to a suspensive condition
that the purchasers would obtain a loan in the sum of R
3 400 000
on or by 12 August 2022, and that the suspensive condition was
fulfilled. That submission placed reliance on
a Standard Bank
‘Quotation and pre-agreement statement’, dated 11 August
2022.
[2]
Mrs Dyobiso denied that
Annexure ‘FA 2’ is the ‘correct document that I
signed’, adding that the document
attached to the founding
papers was materially different from the document she had signed. She
highlighted the changed date in
clause 21 of the deed of sale, noting
that the visible alterations to that clause had not been initialled
by all parties. In particular,
Mrs Dyobiso argued that the purchasers
had not obtained the loan by the (original) date specified in the
deed of sale, so that
the suspensive condition remained unfulfilled
at the material time. In reply, Mr Dyobiso stated as follows:
‘
Indeed,
the Second and Third Respondent fulfilled the suspensive condition
and otherwise complied with the sale. I respectfully
refer the court
to annexure FA 4 to my founding affidavit. Even if the Second and
Third Respondent did commit a breach (which they
did not), then the
provisions of the default clause to the sale ought to have taken
effect.’
[3]
[6]
In
motion proceedings, the affidavits constitute both the pleadings and
the evidence.
[4]
The issues and
averments in support of the parties’ cases should appear
clearly therefrom.
[5]
The
original of a document is the best evidence of its contents. The
rationale for requiring original documentary evidence is precisely
to
avoid error and falsification, and has been associated with the best
evidence rule in cases where the content of a document
is directly in
issue.
[6]
Schwikkard
et
al
confirm that production of the original document remains a
requirement in South African law, so that secondary evidence is
typically
inadmissible to prove the contents of a document.
[7]
[7]
The
applicant was unable to produce the original document during the
hearing of the matter and there is nothing on the papers to
suggest
that one of the recognised exceptions is applicable so that the
copies produced should be accepted as secondary evidence.
Accepting
counsel’s suggestion from the bar that the document was likely
in the possession of a third party, the requisite
procedural steps to
retrieve the original appear not to have been pursued. This all
amounts to a contravention of one of the basic
rules governing the
admissibility of a document, in circumstances where a disputed
alteration of a material date is readily apparent.
No case has been
made that the secondary evidence presented is all that is available
to prove the contents of the document, or
that one of the other
exceptional circumstances prevails, so as to justify it being
admitted into evidence. That, on its own, is
sufficient to deprive
the applicant of the relief he seeks in my view.
[8]
For reasons that follow, accepting the copies of the document
appearing in the papers as documentary evidence does not result in
a
different outcome.
[8]
It
is trite that Mr Dyobiso was obliged to make out his case in the
founding affidavit, which must contain sufficient facts in itself
for
this Court to find in his favour.
[9]
Despite the various different versions of clause 21 attached to the
founding papers, the applicant proceeded blithely on the basis
that
the date by which the loan was to be obtained was 12 August 2022, and
that the suspensive condition had been fulfilled by
the purchasers
courtesy of the receipt of the ‘Quotation and pre-agreement
statement’. That approach resulted in the
applicant failing to
advance any proper basis for this Court to find in his favour if that
date was not accepted. As already indicated,
Mrs Dyobiso took issue,
inter alia, with the relevant date in her answering affidavit,
indicating that the purchasers had not complied
with the suspensive
condition timeously. The reply failed to address that issue
head-on.
[10]
[9]
The
difficulties faced by the applicant do not end there. The formal
legal requirements of a contract of purchase and sale have
been
considered in a number of decisions. This includes that the material
terms of the contract must be reduced to writing and
that the court
must be able to ascertain these terms with reasonable certainty.
[11]
No alienation of land is of any force or effect unless it is
contained in a deed of alienation signed by (all) the parties thereto
or by their agents acting on their written authority.
[12]
[10]
The
legal effect of the statutory predecessor of this requirement has
been explained by Corbett JA as follows:
[13]
‘…
the
whole contract of sale, or at any rate all the material terms thereof
[must] be reduced to writing…The material terms
of the
contract are not confined to those prescribing the
essentialia
of a contract of sale, viz the parties to the contract, the
merx
and the
pretium
,
but include, in addition, all other material terms. It is not easy to
define what constitutes a material term. Nor is it necessary
in the
present case to do so since clause 11, upon which the dispute turns
and which has the effect (if operative) of suspending
the whole
contract pending fulfilment of a condition as to the procurement of a
loan on the security of a first mortgage bond to
be passed over the
property sold and also of causing the contract to be “automatically
cancelled” in the event of such
a loan not being obtained,
would clearly constitute a material term of the contract.’
[11]
There
is no dispute that the clause constitutes a suspensive condition.
[14]
The wording is similar to that considered in
Johnston
v Leal
[15]
and constitutes a material term of the agreement. The effect of this
is the following:
[16]
‘
The
sale is an alienation of land. To be valid its terms must be in
writing and signed. That means that every term that is conceived
by
the parties to form part of the sale must comply with the prescribed
statutory formalities. If any term does not so comply,
the term
itself is void and so is the sale as a whole – at any rate if
the offending term is a material one that cannot be
severed from the
enforceable portion of the contract. A term that relates to the
performance and thus to the obligations of any
of the respective
parties, such as a term incorporating a suspensive or resolutive
condition, would be a material term.’
[12]
Given
the alteration of the handwritten date indicated in the suspensive
condition, there is uncertainty about the content of a
material term
of the contract. In addition, while parties to a contract are free to
vary the contract, when the legislature prescribes
certain
formalities for the making of contracts of a certain type, courts are
expected to ensure that those formalities have been
complied with in
respect of the variation, rather than to permit informal variation.
This is to ensure that the intention of the
legislature is not
frustrated.
[17]
This would
include that any variation is in writing, and signed by all the
parties to the contract, which has patently not occurred
in this
instance.
[18]
[13]
The
result of non-compliance with
s 2(1)
of the
Alienation of Land Act,
1981
, is that the agreement concerned is void
ab
initio
and of no force or effect.
[19]
While the deed of sale was seemingly signed by all parties, the
alteration of the date from ‘8’ to ‘12’
August was not, so that, at best for the applicant, it is the former
date that must be accepted as that agreed to by all the parties
for
purposes of the suspensive condition.
[20]
The consequence of this is that the confirmation of the loan on 11
August 2022, accepting in the applicant’s favour that
this is
what the ‘Quotation and Pre-Agreement Statement’ intended
to convey,
[21]
was outside of
the timeframe reflected in the suspensive condition agreed to by all
the parties. The effect of the non-fulfilment
of the suspensive
condition was that the contract did not become perfecta.
[22]
[14]
A
party claiming on a contract subject to a suspensive condition must
plead and prove the condition and its fulfilment.
[23]
The applicant has in this instance failed to prove the fulfilment of
the suspensive condition contained in clause 21 of the written
agreement, so that the agreement is of no force and effect.
[24]
There is nothing in the agreement to suggest otherwise.
[25]
Non-fulfilment of the suspensive condition renders the contract void.
One of the consequences of this is that compliance with the
breach /
default clause, in respect of providing written notice of breach, is
inapplicable. Another is that the subsequent steps
taken by the
parties or their representatives towards transfer of the property
cannot, in this instance, resuscitate the contract.
[26]
There is also no question of a party waiving a right to cancel the
contract once there has been non-fulfilment of the suspensive
condition.
[27]
In any event,
it is trite that the defence of an election or waiver must generally
be pertinently raised and pleaded.
[28]
Neither the purchasers nor the applicant did so. Furthermore, in
cases where a contract places a time limit on the fulfilment of
a
condition, the party for whose exclusive benefit it was imposed
cannot waive it after the time limit has expired.
[29]
[15]
The application therefore must be
dismissed. Mrs Dyobiso has successfully opposed the application and
is entitled to costs. Her
papers were, however, replete with
unnecessary material, considering the real issues to be determined.
Mrs Dyobiso raised a number
of points in limine in her answering
affidavit, including detailed submissions of a legal nature regarding
urgency, non-joinder
of the firm of attorneys responsible for
transfer of the property and non-joinder of the sheriff. The response
to the merits was
also unnecessarily prolix, with a number of
paragraphs devoted to responding to background averments irrelevant
to the actual dispute
between the parties. That approach warrants
censure. I have also noted that Mrs Dyobiso’s supplementary
affidavit was filed
late, and that heads of argument were filed on
her behalf well outside the time period set by way of a directive
from the Judge
President.
[16]
In the exercise of my discretion, I
consider it appropriate that the applicant only be responsible for
50% of the first respondent’s
costs. Although Mr Dyobiso’s
approach towards the disputed clause was questionable, in all the
circumstances I am prepared
to give him the benefit of the doubt and
refuse the request for a punitive costs order. Counsel for the second
and third respondents
confirmed that they did not seek a costs order
against the applicant in the event that the application was
unsuccessful.
Order
[17]
The following order will issue:
1.
The application is dismissed.
2.
The applicant is directed to pay 50% of the
costs of the first respondent, including all costs previously
reserved.
A GOVINDJEE
JUDGE
OF THE HIGH COURT
Heard
:01
February 2023
Delivered
:14
February 2023
Appearances:
For the
Applicant:
Adv CB Wood
Chambers
on Beresford
East
London
Instructed
by:
Gravett Schoeman Inc.
Applicant’s
Attorney
The
Hub | Bonza Bay Road
Beacon
Bay
East
London
Email:
alexander@gslegal.co.za
Tel:
043 748 2857
For the 1st
respondent:
Adv ZB Ncalo
Chambers
Mthatha
Instructed
by:
Odwa Bhentswana Inc.
First
Respondent’s Attorney
Suite
150 | First floor
ECDC
Building
Mthatha
Email:
ncalodakada@gmail.com
For the 2
nd
and 3
rd
respondents:
Adv BC Tarr
Chambers
East
London
Instructed
by:
Nieuwoudt Du-Plessis Inc.
2
nd
& 3
rd
Respondent’s Attorney
2
Douglas Road
Vincent
East
London
Email:
secretary@ndp-law.co.za
Tel:
043 721 0465
[1]
The
signatures referred to, in this instance, are the signatures of all
the parties at the bottom of the relevant page of the
deed of sale.
[2]
One
of the ‘special conditions’ noted on this document is
that ‘This loan has been granted in terms of the intended
use
and occupation of the property as declared by you’.
[3]
Annexure FA 4 is a letter from Standard Bank to the Dyobisos dated
25 August 2022, confirming that funds to a maximum of R3,4
million
were being held on behalf of the purchasers, payable to the sellers
upon receipt of written confirmation of, inter alia,
registration of
transfer.
Clause
11.1 of the deed of sale deals with breach of contract on the part
of the purchasers, and provides for various remedies
for the benefit
of the sellers. Clause 11.5 deals with sellers’ breach and the
recourse available to the purchasers.
[4]
Transnet
Ltd v Rubenstein
2006
(1) SA 591
(SCA) para 28.
[5]
Minister
of Land Affairs and Agriculture and Others v D&F Wevell Trust
and Others
2008
(2) SA 184
(SCA) para 43.
[6]
Welz
and Another v Hall and Others
1996
(4) SA 1073
(C) at 1079C-E.
[7]
Schwikkard
et
al
Principles
of Evidence
(4
th
Ed) (2016) ch20-p432. See
Singh
v Govender Brothers Construction
1986 (3) SA 613
(N) at 617.
[8]
On
the nature of the discretion of the Court to grant specific
performance, see
Benson
v SA Mutual Life Assurance Society
1986 (1) SA 776
(A) at 781H-781I.
[9]
Director
of Hospital Services v Mistry
1979
(1) SA 626
(A) at 635H-636B. On the importance of holding parties to
their pleadings, see
South
African Transport and Allied Workers Union and Another v Garvas and
Others
2013 (1) SA 83
(CC) para 114.
[10]
An
eleventh-hour postponement request, for the applicant to file
further papers, was advanced during argument and after the various
problems with the applicant’s papers had been raised. This was
refused on the basis that the parties had ample time to
settle their
papers, the matter had been fully ventilated, also during argument,
and because it would not be in the interests
of justice for the
matter to be delayed.
[11]
Chretien
v Bell
2011
(1) SA 54
(SCA) para 9.
[12]
S
2(1) of the Alienation of Land Act, 1981 (Act 68 of 1981).
[13]
Johnston
v Leal
1980
(3) SA 927
(A) at 937G-938C (references omitted).
[14]
See
Chester
v Snowy Owl Properties & Another
[2021] ZASCA 30
paras 19-20.
[15]
Johnston
v Leal
op
cit fn 13.
[16]
See
Van
Leeuwen Pipe and Tube (Pty) Ltd v Mulroy and Another
1985 (3) SA 396
(D) at 400F–I, cited with approval in
Rockbreakers
and Parts (Pty) Ltd v Rolag Property Trading (Pty) Ltd
2010
(2) SA 400
(SCA) para 7.
[17]
See
GB Bradfield
Christie’s
Law of Contract in South Africa
(7
th
Ed) (LexisNexis) (2016) at 518. It may be added that the deed of
sale contained the following ‘warranties and representation’
clause: ‘The Deed of Sale constitutes the entire contract
between Seller and Purchaser and is in substitution of any prior
agreement or arrangement between the parties and no Warranties,
representations or conditions not recorded herein shall be binding
on the Seller unless endorsed hereon and signed by the parties
hereto.’
[18]
The
papers are silent as to the identity of the one or two persons who
either initialled or signed alongside the disputed alteration.
[19]
Johnston
v Leal
op
cit fn 13 at 939A-B.
[20]
As
to the requirement that contracts for the sale of land have to be
signed by all the relevant parties, see G Glover
Kerr’s
Law of Sale and Lease
(4
th
Ed) (LexisNexis) (2014) p119.
[21]
Confirmation
of finance was in fact only provided on 25 August 2022, by way of a
letter from Standard Bank attached to the founding
papers.
[22]
Southern
Era Resources Ltd v Farndell NO
2010
(4) SA 200
(SCA) para 9.
[23]
Union
Share Agency and Investments Ltd v Spain
1928
AD 74
at 79.
[24]
See
Corondimas
v Badat
1946 AD 548
at 551: when a contract of sale is subject to a true
suspensive condition, there exists no contract of sale unless and
until
the condition is fulfilled. Also see
Geue
v Van der Lith
[2003] ZASCA 118
;
2004 (3) SA 333
(SCA) para 8: an agreement of sale subject to a
suspensive condition cannot, pending fulfilment of the condition, be
regarded
as a ‘sale’.
[25]
See
Paradyskloof
Golf Estate v Stellenbosch Municipality; Paradyskloof Golf Estate
(Pty) Ltd v Stellenbosch Municipality
2011
(2) SA 525
(SCA) para 17.
[26]
See,
for example,
Chretien
v Bell
op cit fn 11 para 7.
[27]
Bradfield
op cit fn 17 at 171. See
Fairoaks
Investment Holdings (Pty) Ltd v Oliver
[2008] ZASCA 41
;
2008 (4) SA 302
(SCA) para 22: non-fufilment of a condition inserted
for the benefit of the purchaser resulted in the agreement lapsing.
Also
see
Van
Jaarsveld v Coetzee
1973 (3) SA 241
(A) at 244C-G. The effect of that could not possibly
have given rise to a right on the part of the seller which could
unilaterally
be waived by the seller, thereby resurrecting the
agreement, without the condition which had been inserted for the
benefit of
the purchaser. See
Kovacs
Investments 724 (Pty) Ltd v Marais
[2009] ZASCA 84
para 10 and following and para 23.
[28]
Collen
v Rietfontein Engineering Works
1948
(1) SA 413
(A);
Montesse
Township and Investment Corporation (Pty) Ltd and Another
v
Gouws NO and Another
1965 (4) SA 373
(A) at 381B-D; Also see
McGrane
v Cape Royale The Residence (Pty) Ltd
[2021]
ZASCA 139
paras 21-24. Similarly, the applicant is unable to rely on
estoppel for this reason, and because estoppel is a ‘weapon of
defence’ and cannot found a cause of action: see LTC Harms
‘Estoppel’ in
JA
Faris (Ed) LAWSA
at 98.
[29]
See
the authorities cited by Bradfield op cit fn 17 at 171, fn 158. As
far as it may be suggested that the lapsed agreement may
have been
revived, see
Fairoaks
Investment Holdings (Pty) Ltd v Oliver
op cit fn 27 para 21.