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[2022] ZAFSHC 211
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Green and Another v Free State Development Corporation and Others (2103/2022) [2022] ZAFSHC 211 (24 August 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA.
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2103/2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
GREGORY
GREEN
1st
Applicant
ANNIE
CHRISTINE
GREEN
2nd
Applicant
and
FREE
STATE DEVELOPMENT CORPORATION
1st
Respondent
REGISTRAR
OD DEEDS, BLOEMFONTEIN
2nd
Respondent
KRAMER
WEIHMANN ATTORNEYS
3rd
Respondent
CORAM:
AFRICA,
AJ
HEARD
ON:
04
AUGUST 2022
DELIVERED
ON:
This judgment was handed down
electronically by circulation to the parties' legal representatives
by email. The date and time for
hand-down is deemed to have been at
11h00 on 24 AUGUST 2022.
JUDGMENT
INTRODUCTION
[1]
This is an application for an order in
the following terms:
1.
That the 3
rd
respondent be appointed as conveyancing attorneys with all rights and
obligations therewith associated for the transfer of the
immovable
property known
as Erf [....],
T[....], District T[....], Free State Province.
2.
That the 1st
respondent
be ordered
and directed to sign all necessary
transfer
and registration documents required to effect transfer of the
immovable property known as
Erf [....], T[....], District T[....],
Free State Province,
into the names of the applicants at the
office of the 3rd respondent being Kramer Weihmann Attorneys, 24
Barnes Street, Westdene,
Bloemfontein, within 7 days from date of
this order.
3.
That the Registrar of the Honourable
Court be authorised to sign all necessary transfer and registration
documents required to effect
transfer of the immovable property known
as
Erf [....], T[....], District
T[....], Frees State Province,
into
the name of the applicants in the event of the 1st respondent failing
to comply with paragraph 2 above.
4.
That the 2
nd
respondent be authorised to register the immovable property known as
Erf [....], T[....], District
T[....], Frees State Province,
into
the name of the applicants after all necessary transfer and
registration documents have been duly signed and any further legal
requirements have been met.
5.
That the 1st respondent be ordered to
pay the cost of this application on attorney and client scale.
6.
That such further and/or alternative
relief be granted to the applicants as the Honourable court may deem
fit.
[2]
The 1st
respondent's opposing affidavit was
filed out of time, but as the applicants took no issue with it and in
fact raised no objection
thereto, this court condoned the late filing
of the 1st
respondent's
opposing affidavit.
[3]
Adv.
Steenkamp on behalf of the applicants contends that the crux of this
matter revolves around the applicant's right to property,
who have
complied with all the terms and conditions of the Sale Agreement. It
is submitted that the Applicants as purchasers, concluded
a written
agreement of sale
with
the 1st Respondent, as seller, in respect of the property described
as
Erf
[....], T[....], District T[....], Frees State Province
("the
property").
[1]
[4]
As
the applicants have complied with all the terms and conditions of the
agreement of sale, they are entitled to
transfer
of
the
property
into their names.
[2]
[5]
However,
the 1st
respondent
has failed to effect the transfer to the applicants. In fact, the 1st
respondent has failed to even appoint a conveyancing
attorney to
attend to the necessary transfer of property.
[3]
[6]
It
is common cause that during March 2017, the 1
st
applicant offered to purchase the property from the 1st respondent
and subsequent thereto on the 3rd of July 2017, received a letter
from the 1
st
respondent indicating its intention to sell and that the asking price
is R150 000.00. The receipt of offer was confirmed
and
the applicants had to pay an amount of R179 944.60, within 90
(ninety) days from the 14th
of
July 2017.
[4]
[7]
On
the 17th
of
August 2017, a written agreement of sale was entered into between
the
parties
and
the
applicants
purchased
the
property
for
R150 000.00. excluding VAT. ("the agreement)
[5]
[8]
It
is argued that the applicants have complied fully with the terms and
conditions of the agreement, one of the terms being that
the
applicants undertake to pay for and
obtain
the
necessary
clearance
certificate
from
the local
authority
to
enable
the
1st
respondent
to
proceed
with
obtaining
a
Deed of Grant for the incorporation and transfer to the
applicants.
[6]
[9]
The applicants were only financially
able to pay an amount of R54 972.48 to the Mangaung Metropolitan
Municipality in respect of
the clearance figures on the 10th
of March 2021. Thereafter again on the
25th
of
April 2022 a further amount of R56 406.89 was paid, to settle the
full amount outstanding to the Mangaung Metropolitan Municipality.
[10]
It is argued that not only have the
applicants complied in all respects with their obligations in terms
of the agreement, but they
also tendered to pay the balance of the
transfer costs, if any, as well as any other amounts due to the
Municipality which may
have accumulated
since March 2021.
[11]
The applicants bemoan the 1
st
respondent's opposition to the application as meritless, with
reference to the defences raised.
[12]
The 1st respondent submit that the
applicants have not complied with the terms of the contract in that:
[12.1]
They
failed to pay the clearance figures issued by the Mangaung
Metropolitan Municipality and which were provided to them in May
2018
and valid until 30
th
of June 2018. These figures were obtained by the conveyancers
appointed by the 1
st
respondent notwithstanding the fact that the applicants had a duty in
terms of the contract to obtain the clearance certificate.
[7]
[12.2]
The
amounts paid by the applicants on the 10th
of
March 2021 and on the 22
nd
of April 2022 were not clearance figures obtained from the Mangaung
Metropolitan Municipality but only a portion of the rates and
taxes
owing on the relevant municipal account. The Mangaung Metropolitan
Municipality could not issue a clearance certificate contemplated
in
section 118(1) of the Municipal Systems Act without clearance
figures
having
been
applied
for
and
obtained
from
that
Municipality.
[8]
In fact it is
submitted that the payment so made was not brought to the attention
of the 1
st
respondent, as the 1st respondents duty to register the property
arose on that date. Consequently, the applicants institution of
these
proceedings on the 9th of May 2022 did not afford the 1st
respondent
a reasonable time within which to register
transfer
of the property in the names of the applicants in terms of the
contract.
[9]
[12.3]
On
the 18
th
of October 2017 a letter was written to the 1st applicant informing
him that he is
required
to pay occupational rent in
the
amount of R2 590.71 until date of registration.("Annexure
EL1")
[10]
Further that the
applicants will continue to be bound by the terms of the lease
agreement entered into in respect of the property
during the duration
thereof.
[13]
In response hereto, the 1st applicant
submits that prior to the conclusion of the agreement, they were in
occupation of the property
and in terms of the Agreement of Sale at
Clause "E", Occupational Interest is "N/A". The
court's attention
was drawn to the Non-variation clause, in the
agreement of sale and the fact that the 1st
respondent has never taken any legal
steps to recoup any occupational rent but in fact indicated their
decision "to withdraw
the action" against
the
applicants
purportedly
for
arrear
rental
in
the
amount
of R222 721.46, excluding interest.
[14]
Further, that notwithstanding various
correspondence exchanged between the Applicants' attorneys and the
1
st
respondent's attorneys in respect of the appointment of a conveyancer
to see to the transfer of the property into the names of
the
applicants, the 1
st
respondent has failed to appoint an attorney and/or conveyancer to
effect the transfer of the property.
[15]
Evidently,
the 1st respondent in their letter dated 27 October 2021
[11]
states that the 1st respondent has decided that "
the
property be registered in the name of
Mr
Green in terms of the purchase and sale agreement".
However it is submitted
that
as
section
118(1)
is a statutory
restraint
on the registration
of
property, the
reasonable
time
agreed upon in clause 6.3 of the contract should be calculated from
the date of payment of the clearance figures and not the date
of
payment of the purchase price, bearing in mind that the contract
stipulates that the purchase price is payable on the date of
registration of the transfer.
[12]
[16]
Clause 6.3 of the agreement reads as
follows:
'Transfer
of the property shall be effected by the seller within a reasonable
period after the purchaser has paid the full purchase
price referred
to in paragraph 1.2 hereof, or secured the purchase price or balance
of the purchase price by a bond"
[17]
The 1st
respondent contends that only after 25
April 2022, would the municipality have been in a position to issue
the clearance certificate
and only thereafter can the transfer be
done, but the1
st
respondent was not afforded enough time to ensure registration in the
name of the applicants, therefore this application is premature.
[18]
Further that the applicants are not
entitled to the order for specific performance, namely the prayer to
appoint a specific attorney
because the contract says that it's the
right of the 1st respondent to choose whomsoever it wishes, to effect
the transfer.
[19]
In rebuttal hereof, the applicants
contend that the 1
st
respondent's submission that it appointed conveyancing attorneys in
this matter, is misplaced. No less that 3 (three) conveyancers
have
dealt with this matter over a period of 3 (three) years and yet the
applicants have not been informed hereof. The applicants
asked this
court to take a dim view of 1st
respondent's
submissions in this regard because it
appears that the 1
st
respondent does not carry the view of bringing this matter to
finality and justice and equity dictates that this court come to
the
assistance of the applicants who have complied fully and are still
not the owners of the property. It is further argued that
nowhere in
the agreement is the right reserved for the 1st respondent to "choose
whomsoever it wishes, to effect the transfer.
[20]
As
it is the submission of the 1
st
respondent that it has always tried to transfer the property into the
names of the applicants but could not do so without the Municipality
clearance figures being paid by the applicants.
[13]
This
court makes an order in the following terms:
1.
That the 1st respondent is ordered to
appoint a Conveyancer from its panel within
14
(fourteen) days
from the date of
this order, to effect the transfer of the immovable property known as
Erf [....], T[....], District
T[....], Free State Province.
2.
That the 1st respondent is ordered and
directed to sign all necessary transfer and registration documents
required to effect transfer
of the immovable property known as
Erf
[....], T[....], District T[....], Free State Province,
into
the names of the applicants, within
14
(fourteen) days
from date of this
order.
3.
That the Registrar of the Honourable
court is authorised to sign all necessary transfer and registration
documents required to effect
transfer of the immovable property known
as
Erf [....], T[....], District
T[....], Frees State Province,
into
the name of the Applicants in the event of the 1
st
Respondent failing to comply with paragraph 2 above.
4.
That
the
2nd
respondent
is
authorised
to
register
the
immovable
property
known as
Erf [....], T[....], District T[....], Frees State
Province,
into the name of the applicants after all necessary
transfer and registration documents have been duly signed and any
further legal
requirements have been met.
5.
That the 1st respondent is ordered to
pay the cost of this application on party and party scale.
AFRICA,
AJ
APPEARANCES:
COUNSEL
FOR THE APPLICANTS:
Adv.
Steenkamp
Instructed
by:
Kramer
Weihmann Inc
COUNSEL
FOR 1st RESPONDENT:
Adv. Litheko
Instructed
by: Litheko
Motsoeneng Inc.
[1]
Paragraph 1 of applicants heads of arguments.
[2]
Paragraph 2 of applicants heads of arguments
[3]
Paragraph 3 of applicants heads of arguments
[4]
Record page 11 par 8.4.
[5]
Record page 11 par 8.5.
[6]
Paragraph 10.9 of Applicants heads of argument
[7]
Paragraph 13.1of 1'1 respondent's heads of argument.
[8]
Paragraph 13.2 of 1st respondent's heads of argument
[9]
Paragraph 14 of 1'1 respondent's heads of argument
[10]
Paragraph 7 of 1st respondents opposing affidavit
[11]
Annexure "FA13" record page 40
[12]
Paragraph 15 of pt respondent's heads of argument
[13]
Paragraph 11 of 1st respondents opposing affidavit