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[2022] ZAFSHC 295
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G & H Punt (Pty) Ltd v Waschbank Bonsmara CC and Others (4604/2022) [2022] ZAFSHC 295 (27 October 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.:
4604/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
G
& H PUNT (PTY)
LTD
Applicant
and
WASCHBANK
BONSMARA CC
First
Respondent
THE
TRUSTEES FOR THE TIME
BEING
OF THE GREEN VALLEY TRUST
Second
Respondent
THE
REGISTRAR OF DEEDS, BLOEMFONTEIN
Third
Respondent
JUDGMENT
BY:
VAN
RHYN, J
HEARD
ON:
6
OCTOBER 2022
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
applicant and first respondent‘s legal representatives
by
email and released to SAFLII. The date and time for hand-down deemed
to be at 09 h00 on 27 OCTOBER 2022.
INTRODUCTION.
[1]
This is an urgent application issued on 21 September 2022 in terms of
which the applicant
seeks the following relief:
“
1.
That this matter being treated as one of urgency in terms of rule
6(12) of the Uniform Rules of Court;
2
That a rule
nis
i is issued requiring the respondents to are to
show cause why the following order should not be made final;
2.1
That-
2.1.1
the First and Third Respondents be interdicted from transferring
ownership of the following immovable property:
(i)
The Farm Eden 335, District Dewetsdorp, Free State Province, being
85,6532 hectares
in extent held under Title Deed [....], and;
(ii)
The Remainder of the Farm Joubertpark 256, district Dewetsdorp, Free
State Province,
being 990,754 hectares in extent held under Title
Deed [....];
(hereinafter
collectively referred to as “the Farm”)
to
the Second Respondent or anyone else, pending the outcome of this
application and/or the action referred to in paragraph 3 hereunder.
2.2
Directing that the costs of this application shall form part of the
costs of the action referred to
in paragraph 3 below, unless the
application is opposed, in which instance such opposing Respondent(s)
be ordered to pay the costs
of this application.
3.
Directing the applicant to institute an
action within 5 days of the granting of this order in which
it claims
the relief referred to in paragraph 2.1.
4.
Directing that pending the said return date,
the provisions of paragraph 2.1 above shall have interim
effect.”
[2]
The applicant is G & H Punt (PTY) Ltd, a company represented by
Mr Johan Punt,
a farmer and a manager of the applicant. The applicant
has its registered address at Hermanus in the Western Cape Province.
The first respondent is Waschbank Bonsmara CC, a close corporation
having its registered address at Bloemfontein, Free State Province.
The first respondent is the registered owner of the Farm which
forms the subject of the dispute between the applicant and
the first
respondent. The application is opposed by the first respondent.
[3]
The second respondent is cited as the Trustees for the Time Being of
the Green Valley
Trust IT 0015/2020 (E). The second respondent made
an offer to purchase the Farm from the first respondent prior to the
Farm being
offered for sale at an auction held on 14 July 2022. The
second respondent has been joined in this application by virtue of
the
interest that it may have in this matter.
[4]
The third respondent is the Registrar of Deeds, Bloemfontein (“the
Registrar
of Deeds”). No relief is claimed from the Registrar
of Deeds.
BACKGROUND FACTS.
[5]
The application was served upon the first respondent on Thursday 22
September 2022.
The first respondent was required to file its
notice of intention to oppose the application on the same day and was
allowed one
day to file its answering affidavit. These truncated time
periods were provided on the ground that a transfer of the Farm was
imminent.
At the time when the founding affidavit was deposed to on
the 20
th
of September 2022, it was suspected that the
transfer documents had already been lodged with the Registrar of
Deeds. The applicant
filed its replying affidavit on 27 September
2022.
[6]
Thereafter, on the basis that it would take months for the matter to
be heard in the
ordinary course, the application was enrolled on the
urgent roll for 29 September 2022. On 29 September 2022, the
application
was postponed for a week to Thursday, 6 October 2022 due
to an illness of applicant’s counsel.
[7]
The first respondent disputed the urgency of the matter and prayed
that the applicant’s
application be struck from the roll for
lack of urgency with an appropriate cost order. To consider the
urgency of this matter,
the factual background circumstances should
be considered.
[8]
On 14 July 2022 the deponent to the founding affidavit, Mr Punt,
attended an auction
presented by Nico Smit Auctioneers at the Farm.
Mr Punt obtained permission from the auctioneer Mr Jeandre Smit (“Mr
Smit”)
to view the Farm. On the day prior to the auction he
inspected the Farm and decided to attend the auction with a view to
purchase
the Farm.
[9]
At the auction, Mr Smit informed Mr. Punt that there had been an
unsuccessful offer
to purchase the Farm. The said offer was subject
to the purchaser procuring financing which had not been obtained,
therefore the
auction was proceeding. The conditions of sale were
announced prior to the commencement of the auction. According
to the
applicant no mention of any reserve price was made. The seller
of the Farm however had 21 days to confirm the sale. The
conditions
of sale made provision for the acceptance by the seller of
a competing offer, subject to the right of the highest bidder to
“meet
or beat” the price so offered.
[10]
The applicant was the highest bidder at the auction. Johanna
Wilhelmina Punt signed the document
headed “Voorwaardes van
verkoping van onroerende eiendom” (Conditions of Sale) on
behalf of the applicant on 14 July
2022. In terms of the Conditions
of Sale the applicant purchased and the first respondent sold the
Farm for a purchase price of
R 8 450 000.00 (eight million
four hundred and fifty thousand Rand).
[11]
Mr Punt telephonically contacted the auctioneers on 1 August 2022 and
spoke to Mr Smit who informed
him that the first respondent had,
prior to the auction, sold the Farm to the second respondent. The
sale to the second respondent
was subject to the acquisition of a
loan for the purchase price. During the telephonic discussion Mr Smit
indicated that the second
respondent had not yet managed to procure
financing and requested the applicant to consent to an extension of
the 21- day period
within which the first respondent was required to
confirm the sale to the applicant.
[12]
On or about 1 August 2022, the first respondent’s attorney
requested in writing that the
applicant consent to an extension of
the 21- day period which was afforded to the first respondent to
accept the applicant’s
offer to purchase. On 2 August
2022 the applicant replied that the request is denied. I will again
refer to this aspect.
[13]
The Conditions of Sale contain a consent to the jurisdiction of the
Magistrate’s Court.
On 8 September 2022 the applicant lodged an
urgent application in the Dewetsdorp Magistrate’s Court on the
basis that the
first respondent had lodged the deeds of transfer with
the Deeds Office at Bloemfontein and that the transfer was expected
to be
executed shortly (“within the next day or so”). The
application in the Magistrate’s Court was heard on 12 September
2022 and was dismissed with costs. The applicant furthermore caused
an action to be instituted against the first respondent out
of the
Magistrate’s Court, Dewetsdorp.
[14]
On 21 September 2022 the applicant filed its notice of appeal against
the judgment and order
granted in the Dewetsdorp Magistrate’s
Court. On the same day the urgent application was issued in this
court.
THE APPLICANT’S
ARGUMENTS.
[15]
Mr Verster, counsel on behalf of the applicant, who was instructed on
short notice after applicant’s
counsel fell ill the previous
week, argued that the arguments on the merits be heard prior to
addressing the issue of urgency merely
because he was of the view
that the applicant’s case on the merits carry more weight than
the arguments on urgency. Mr Verster
furthermore requested this court
to adjudicate this urgent application not just on the issue of
urgency but on the merits as well
on the basis that both parties have
filed their affidavits and heads of argument. In the event of this
court striking this matter
from the roll for lack of urgency it would
bring about another court to be burdened with the matter once more,
at a later stage,
when the matter is heard on the opposed roll.
[16]
Mr Verster argued that the crux of the dispute between the parties is
the correct interpretation
of clause 1 of the Conditions of Sale. The
Conditions of Sale provides as follows:
“
1.
Die eiendom sal voorwaardelik toegeslaan word op die hoogste bieder
onderworpe aan bekragtiging binne
21 (EEN EN TWINTIG) dae deur die
gemelde Verkoper en die bieder sal gebonde bly by sy aanbod vir 21
(EEN EN TWINTIG) dae na ondertekening
van hierdie Verkoopvoorwaardes
deur die Koper.
Die
verkoper sal geregtig wees om in die loop van die 21 (EEN EN TWINTIG)
dae-periode waarna in paragraaf 1 verwys word, enige hoër
aanbiedinge van ander belangstellendes te werf onderworpe daaraan
dat:
1.1.1
So ‘n ander belangstellende
geregtig sal wees om net een finale hoogste aanbod te maak; en
1.1.2
Indien die hoogste bieder op vandag se
veiling so ‘n latere aanbod ewenaar, die verkoper verplig sal
wees om die eiendom aan
hom te verkoop indien die verkoper besluit om
die kooprys te aanvaar.”
[17]
Clause 10 of the Conditions of Sale provides as follows:
“
10.1
Onmiddellik nadat die Koper hierdie Verkoopvoorwaardes onderteken het
sal die Koper 5% (VYF PERSENT) Deposito van die totale
koopprys
daarop by die Afslaers inbetaal by wyse van ‘n bankgewaarborgde
tjek aanvaarbaar vir die Afslaers.
10.2
Die Koper is verantwoordelik vir Afslaerskommissie van 7% (SEWE
PERSENT) + BTW adissioneel tot die hoogste bod. Die Afslaers
behou
die reg by bekragtiging van hierdie verkoping deur die Verkoper, om
hierdie genoemde kommissie asook kostes aangegaan van
die deposito
ontvangs af te trek. Hierdie kommissie word beskou as verdien te wees
met bevestiging deur die Verkoper.
10.3….
10.4
Indien die verkoping nie deur die Verkoper bekragtig word nie sal die
bedrag wat deur die Koper inbetaal is vry van rente
aan hom
terugbetaal word.”
[18]
Apart from the interpretation of clause 1 of the Conditions of Sale
the further issue is whether
the applicant met the requisites for
obtaining an interlocutory interdict. Generally, when a party applies
for an interim interdict
he or she has to satisfy the following
provisions:
[1]
18.1
a prima facie right;
18.2
a well-grounded apprehension of irreparable harm if the interim
relief is not granted and the ultimate relief is eventually
granted;
18.3
a balance of convenience in favour of the granting of the interim
relief; and
18.4
the absence of any other satisfactory remedy.
[19]
Mr Verster contended that where an applicant contemplates an action
for the delivery or transfer
of property under a contract of sale, as
in this matter, the requirements for obtaining an interim interdict
to protect that property,
are less stringent. It is contended that
there are two exceptions to the rule that an applicant for an
interlocutory interdict
must comply with the requisites outlined in
paragraph 17 above. In
Erasmus
[2]
the two exceptions are explained as follows:
“
These
are applications for interdicts pending
(i)
vindicatory, and
(ii)
possessory (usually, but loosely,
described as quasi-vindicatory) actions.
A
vindicatory action is one in which the plaintiff claims delivery of
specific property as owner or lawful possessor. An action
is said to
be quasi-vindicatory when delivery of specific property is claimed
under some legal right to obtain possession. The
most familiar
example of the latter is an action for delivery or transfer of
property under a contract of sale, which in certain
circumstances
supports a claim to an interdict restraining the seller from dealing
with the property pending the action.
An
applicant for an interdict pending vindicatory action to recover what
he alleges is his own property need not show that he will
suffer
irreparable loss if the interdict is not granted. There is a
presumption, which may be rebutted by the respondent, that
the injury
is irreparable. Nor need the applicant show that he has no other
satisfactory remedy: a person who is entitled to vindicate
property
in the hands of another cannot be forced by the action of that person
to accept merely the value of the property.
The
practice of granting an interlocutory interdict without proof of
irreparable loss is not confined to vindicatory actions properly
so
called but may also be applied in any case in which the applicant has
established a prima facie right to delivery of a particular
thing,
since in all such cases the court is entitled to ensure that the
thing shall be preserved until the dispute is finally decided.
The
interdict may be granted even if the probabilities of success in the
action are against the applicant, and should ordinarily
be granted if
no harm would thereby be occasioned to the respondent.”
[20]
The applicant contends that clause 1, read in conjunction with its
sub-clauses, creates a condition
(as expressed in the use of the word
“voorwaardelik”) that if the seller receives a higher
offer than the bid of the
highest bidder within 21 days, the highest
bidder will obtain the Farm if he is willing to meet the higher
offer. However, in order
for him to meet the higher offer, the higher
offer must be presented to him within 21 days. There is an obligation
upon the seller
or his agent, the auctioneer, to present the higher
offer to the bidder. The applicant argues that if the offer is not
presented
to the highest bidder within the 21-day period, the
condition is fulfilled and the highest bidder becomes the purchaser
of the
Farm.
[21]
It is common cause that the auction was not subject to a reserve
price. Subsequent to the auction
the applicant learned that the first
respondent received an offer to purchase the Farm from the second
respondent on 15 June 2022
in the amount of R10 536 000,00.
The offer from the second respondent was subject to the condition
that the second respondent
obtain financing within 21 days, which
lapsed on 4 August 2022. Therefore, so the argument goes, according
to the
prior in tempore
rule, and due to the fact that after
the lapse of the 21- day period the second respondent had not yet
secured financing to purchase
the farm, the applicant became the
purchaser of the Farm.
[22]
The applicant therefore obtained a
prima facie
right and thus
satisfies the first requirement for an interim interdict. Mr Verster
contends that the balance of convenience favours
the applicant on the
basis that in the event of transfer of the Farm being passed to the
second respondent, it will not be easy
for the applicant to claim
transfer of the Farm as a result of numerous challenges and the party
who will suffer permanently will
be the applicant. As to the third
requisite of an alternative remedy, there is no necessity to address
the issue at this stage
in accordance with the principles referred to
in
Erasmus
when a quasi-vindicatory claim is at stake.
[23]
Due to the attorney’s refusal to divulge information pertaining
to the expected date of
transfer of the Farm to the second
respondent, the applicant is unaware of the exact time when transfer
can be expected. Mr Verster
indicated that the applicant has no way
of obtaining information regarding the expected date of transfer and
therefore does not
even know whether the transfer has occurred or
not.
[24]
Regarding the urgent application lodged at the Magistrate’s
Court at Dewetsdorp, the applicant
contends that the application was
not adjudicated upon on the merits as the magistrate found that the
court did not have the necessary
jurisdiction to hear the urgent
application. On this basis the argument of
res judicata
raised
by the first respondent is not applicable.
[25]
The further point raised by the first respondent that the principle
of pre-emption applies in
that the applicant accepted the re-payment
of the deposit and the commission from the auctioneer is to
misconstrue the reason why
payment of these amounts was claimed by
the applicant. Due to the fact that the applicant did not earn any
interest on the amount
paid in respect of the deposit and commission
Mr Punt’s son, who is a chartered accountant by trade, merely
felt that it
would be to the benefit of the applicant to ask for the
re-payment of these amounts pending the finalisation of the sale. The
intention
was not to cancel the agreement.
THE ARGUMENTS OF THE
FIRST RESPONDENT.
[26]
Mr Van der Merwe, counsel on behalf of the first respondent, firstly
addressed the issue of urgency.
The applicant approached this court
48 day after the 4
th
of August 2022, being the “trigger”
date. The applicant launched the urgent application in the
Magistrate’s Court
35 days after the 4
th
of August
2022. The applicant did not act with maximum expedition with
the result that any urgency that may exist has been
self-created,
which is fatal for the applicant’s application. The application
should therefore be struck from the roll for
lack of urgency with a
punitive costs order.
[27]
The application is based upon a factual error that the transfer will
occur “within a day
or two” which will leave the
applicant without any recourse. In the event of transfer being
registered at the Deeds Office
there is no reason why the applicant
may not claim transfer from the second respondent and to obtain an
interdict for the transfer
from the second respondent to other
parties.
[28]
The applicant noted an appeal against the finding of the magistrate.
According to the notice
of appeal it is evident that the magistrate
did not merely find that the Magistrates Court did not possess the
necessary jurisdiction
to adjudicate upon the urgent application. The
magistrate dismissed the urgent application on the merits with the
result that this
application is
res judicata
.
[29]
Mr Van der Merwe argued that on a proper interpretation of clause I
of the Conditions of Sale
the applicant must keep his offer open for
a period of 21 days and the offer is made subject to the acceptance
or rejection thereof
by the first respondent. The first respondent
did not accept the offer. The applicant accepted the election made by
the first respondent
and requested re-payment of the deposit and
commission form the auctioneer on 8 August 2022.
APPLICABLE LEGAL
PRINCIPLES AND DISCUSSION.
[30]
The terms on which an auction is to be held are drawn up by the
seller or auctioneer in the form
of ‘conditions of sale’.
The vital question of whether the auctioneer or the bidder is to be
the offeror, and therefore
which of them, as offeree, is to have the
final decision whether the contract is to be concluded or not, may be
laid down by the
seller or the auctioneer, as the organiser of the
sale. The terms on which the auction is to be held must be read out
at the beginning
of the auction.
[3]
[31]
If it has been announced that the auction will be ‘without
reserve’ or that the property
will be sold ‘peremptorily,
to the highest bidder’ the auctioneer is bound to sell to the
highest
bona
fide
bidder and has no general discretion to refuse a bid or withdraw the
property from the auction.
[4]
If
no reserve price is announced, or in the case of doubt, the seller
retains the right to decide whether to sell or not, and each
bid,
including the highest, is an offer that the seller may accept or not
in his absolute discretion.
[5]
[32]
Mr Van der Merwe referred the court to the matter of
Brandt
v Spies
[6]
.
The court in the
Brandt
-matter
reiterated that an option to purchase is comprised of two distinct
parts: an option to purchase and an agreement to keep
that offer
open, usually for a fixed period. The undertaking to keep the offer
open is of course a
pactum
de contrahendo
.
It is not an alienation as envisaged in the Alienation of Land
Act
[7]
and is not required to be
in writing. The offer, however, which the
pactum
has undertaken to keep open, must be a firm offer which will result
in a binding contract when it is accepted.
[33]
In
Brandt v Spies
the principle applicable was explained as
follows:
“
It
is implicit in these decisions that an option is comprised of two
distinct parts- one is an offer to sell the property, and the
other
is a contract to keep that offer open for a certain period. Through
the option the grantee acquires the right to accept the
offer to sell
at any time during the stipulated period; and if this right is
exercised a contract of purchase and sale is immediately
brought into
being. It follows that the offer must be one which is capable of
resulting in a valid contract of sale from the fact
of acceptance by
the person to whom the offer is made …”
[8]
And
further:
Applying
this reasoning, it is clear that when a party relies upon a contract
flowing from acceptance of an offer, and the law prescribes
that
writing is essential to the validity of the particular contract, it
must be shown that both the offer and the acceptance are
in writing.
If the offer is not in writing there is nothing which the offeree can
accept so as to create a
vinculum
juris
between himself and the offeror. An undertaking to keep open an offer
which is incapable of forming the basis of a valid contract
can
itself confer no right upon the grantee- for in law there is nothing
to keep open.”
[9]
[34]
The facts in
Withok
Small Farms (PTYP LTD and Others v Amber Sunrise Properties 5 (PTY)
LTD
[10]
are
as follows: the printed conditions of sale of a property at an
auction provided that the bidder bound itself to keep its bid
open
for a period of seven days. The true nature of the contract was an
option granted by the bidder to the seller to sell the
property on
the terms and conditions set out in the document. The court held that
it was a trite principle of the common law that,
unless the contrary
was established, a contract came into being when the acceptance of
the offer was brought to the notice of the
offeror. It was also trite
that an offeror could indicate, whether expressly or impliedly, the
mode of acceptance by which a
vinculum
juris
would be created. If there were doubt, it would be presumed that the
contract would be completed only when the acceptance of the
offer was
communicated to the offeror.
[35]
The Supreme Court of Appeal held as follows at paragraphs 7 and 9:
[7]
The document is poorly drafted. It is couched in language suggestive
of a sale subject to a suspensive condition. Thus, clause
1 speaks of
properties being ‘provisionally’ sold ‘subject to
confirmation by the seller’. There are numerous
other
references to the sellers being required to ‘confirm’ the
sale. But as pointed out by this court in Benlou Properties
(Pty) Ltd
v Vector Graphics (Pty) Ltd
1993 (1) SA 178
(A) at 186F-J a
distinction is drawn in our law between a pure and a mixed
potestative condition. The former is invalid because
its fulfilment
depends entirely upon the unfettered will of the promissor. A typical
example, and the one given in the
Benlou
case, is:’ I
will pay you R500 if I wish to do so.’ In the present case the
conditions of sale reserved to the sellers
an unlimited choice
whether to sell or not. It gave rise to no obligation on their part
whatsoever and accordingly no agreement
of sale came into existence
at the time of the auction.”
And;
[9]
In terms of clause 1 of the conditions of sale the respondent bound
itself to keep its bid open for a period of seven days.
To that
limited extent a binding contract came into existence. The true
nature of that contract was an option granted by the respondent
to
the sellers to sell the properties on the terms and conditions set
out in the document. I accordingly agree with the court a
quo that on
a proper construction the reference in the conditions of sale to the
confirmation of the sale had to be construed as
a reference to the
acceptance of an offer.”
[11]
[36]
Mr Van der Merwe argued that clause 1 of the Conditions of Sale
clearly stipulates and provides
that the first respondent did not
confirm (“bekragtig”) and therefore no agreement was
entered into between the applicant
and the first respondent.
Furthermore, clause 16 of the conditions of sale stipulates that the
seller “sal by bekragtiging
van die verkoping hierdie
voorwaardes teken”. It is not disputed that the first
respondent did not sign the Conditions of
Sale. Both clause 1 read
with clause 16 is unambiguous and clearly provides that the bid
(offer) had to be accepted by the first
respondent. This
however did not transpire. The offer was not accepted by or on behalf
of the first respondent. This
court is satisfied that no
contract was concluded.
[37]
A suspensive condition suspends the operation of all or some of the
obligations flowing from
the contract until the occurrence of a
future uncertain event.
[12]
Mr
Van der Merwe referred to the matter of
Mia
v Verimark holdings (Pty) Ltd
[13]
to
explain the legal effect of a suspensive condition:
“
Suspensive
conditions are commonly encountered in contracts for the sale of
immovable property. Their legal effect is well settled.
The
conclusion of a contract subject to a suspensive condition creates ‘a
very real and definite contractual relationship’
between the
parties. Pending fulfilment of the suspensive condition the exigible
content of the contract is suspended. On fulfilment
of the condition
the contract becomes of full force and effect and enforceable by the
parties in accordance with its terms. No
action lies to compel a
party to fulfil a suspensive condition. If it is not fulfilled the
contract falls away and no claim for
damages flows from its failure”.
[14]
[38]
The applicant argued that the offer to purchase the Farm by the
second respondent was made prior
to the auction which took place on
14 July 2022. It was not an offer made in terms of the Conditions of
Sale of the auction. The
applicant was not afforded an opportunity to
meet the offer made by the second respondent and the failure of the
first respondent
to provide the applicant with an opportunity to meet
the second respondent’s offer caused the condition to be
fictionally
fulfilled.
[39]
The agreement between the second respondent and the first respondent
was subject to a suspensive
condition in that the second respondent
was awarded a period of 21 days to obtain a loan, therefore it was
still subject to a suspensive
condition as at 4 August 2022. On this
basis the applicant contends that the offer to purchase the Farm by
the applicant came into
existence at the fulfilment of the condition
in clause 1 by 4 August 2022 when the sale between the second and the
first respondent
had not yet been concluded. It is thus submitted
that the applicant has established a
prima facie
right to
receive transfer of the Farm and that it is entitled to the interim
relief which it seeks in the notice of motion.
[40]
In the answering affidavit it is stated that the first respondent’s
existing indebtedness
in terms of the bonds registered over the Farm
exceeds the offer made by the applicant. The applicant became aware
of the higher
offer made by the second respondent during a telephonic
conversation on or about 1 August 2022. The applicant, being willing
and
desirous to purchase the Farm, did not enquire as to the amount
offered by the second respondent so as to “meet or beat”
the offer. There is no evidence that the applicant, even when
knowledge of the offer to purchase the Farm came to the knowledge
of
Mr Punt shortly prior commencement of the auction, tried to ascertain
what the amount of the offer was.
[41]
The deponent to the applicant’s founding
affidavit states the following regarding the offer to purchase
made
by the second respondent: “The fact that there was an existing
sale which was subject to the suspensive condition that
financing be
provided was not disclosed at or prior to the auction”. On 1
August 2022 the applicant received a letter from
the attorney acting
on behalf of the first respondent to request an extension of the time
within which the second respondent had
to secure a loan to purchase
the Farm. The content of the letter addressed to Mr Punt is as
follows:
“
Ons
wens te bevestig dat ons die prokureurs namens Waschbank Bonsmara
(Pty) Ltd is en bevestig ons dat u aanbod die hoogste bod
op die
veiling was, te wete R8 450 000.00 uitgesluit BTW (lopende
saak).
Ons
bevestig dat u meegedeel is en te alle tye daarvan bewus was dat daar
reeds ‘n bestaande aanbod op die eiendom is van
‘n derde
party, onderhewig aan finansiering. Ons bevestig dat u reeds u
deposito en alle nodige kostes aan die afslaer betaal
het wie dit op
trust hou.
Ons
bevestig dat die tydperk vir die verkryging van finansiering van die
derde party nog nie uitgeloop het nie en versoek ons dus
on die
3-weke tydperk vir die aanvaarding van die aanbod te verleng met ‘n
verdere 3 weke. Ons is deur die bankbestuurder
van die koper in
kennis gestel dat hy binne die eersvolgende 10 werksdae uitsluitsel
rondom die finansiering sal hê. Ons
wil graag met u in
verbinding bly en indien hierdie koop nie realiser nie, met u koop
voortgaan.
Ons
vertrou u vind dit so in orde.”
[42]
On 2 August Mr Gilbert Punt the son of the deponent, Mr Punt, replied
to the correspondence from
the first respondent’s attorney:
“
Soos
jy bewus is verstryk die tyd vir die verkoper om ons aanbod the
aanvaar Donderdag 4 Augustus 2022 teen die sluiting van besigheid.
Alhoewel ons verbaal voor die veiling in kennis gestel was van ‘n
aanbod deur ‘n derdeparty was dit nie in konteks
geplaas dat
die veiling juis gehou word weens die feit dat die dede party se
finansiering nie suksesvol was nie.
Ons
was dus nie bewus daarvan dat die aanbod van die derde party steeds
oorweeg word nie. Hierdie inligting is ook nie vervat in
die
getekende terme van die veiling nie.
Ons
is nie bereid om ons aanbod vir langer as die durasie soos per die
terme van die veiling te verleng nie. Indien ons aanbod nie
aanvaar
word nie versoek ons graag dat ons deposito tesame met die kommissie
aan ons terugbetaal word op Vrydag 5 Augustus 2022.
Ons
behou ons regte voor in hierdie verband.
Geliewe
verder instruksies van jul klient te kry en ons van sy besluit in
kennis te stel voor sluit van besigheid op 4 Augustus
2022.”
[43]
Due to the email by Mr Gilbert Punt that the applicant was not
prepared to provide any extension
and the fact that the first
respondent did not accept the applicant’s offer on or before 4
August 2022, the deposit was re-payed
to the applicant on 8 August
2022. On 8 August 2022 Mr Gilbert Punt, per email requested
re-payment of the deposit from the auctioneer
as follows:
“
Hi
Wilma,
Sien
gerus aangeheg. Dit blyk asof die verkoper nie die terme aanvaar nie.
Sal
jy asb ons fondse vandag terug betaal- FNB bevestiging aangeheg. Sal
jy my asb skakel om die besonderhede te bevestig alvorens
julle die
betaling maak.”
[44]
In reply the applicant indicates that the request
to return the deposit was made because the auctioneer
indicated that
it would be in the applicant’s best interest for it to be done
in view of the fact that the amount which had
been paid was not
earning any interest and that there was every prospect that the
matter would drag on for a considerable period
of time. The doctrine
of peremption states that a party must make-up his mind: the party
cannot equivocate by acquiescing in a
decision and thereafter change
his mind.
[15]
The conduct by
the applicant to request the repayment of the deposit and commission
on the basis that the offer made at the auction
was not accepted by
the first respondent within the period of 21 days is, to my mind, an
unequivocal intention to acquiesce and
is inconsistent with any
intention to proceed with the offer to purchase the Farm.
[45]
The offer to purchase the Farm could not be withdrawn by the
applicant prior to expiry of the
21-day period.
[16]
The offer, in the form of the highest bid made at the auction, by
the applicant was open for acceptance by the first respondent
during
the fixed period of 21 days. The first respondent did not accept the
offer within the period of 21days and therefore the
offer has
lapsed.
[17]
The
applicant did not waive the limitation of time agreed upon by
granting an extension as requested by the first respondent.
[18]
[46]
On the basis that the bid made by the applicant was not accepted by
the first respondent, no
contract came into existence. The language
in the conditions of sale is sufficiently clear to indicate that the
first respondent
was entitled to, within the period of 21 days from
the date on which the offer to purchase is signed by the highest
bidder, source
any higher offers subject thereto that the subsequent
offer had to be more than the offer by the first respondent where
after the
highest bidder (the applicant) would be entitled to
be notified of any such subsequent higher offer and would be afforded
an opportunity to ‘meet or beat’ such offer. The first
respondent would then be obliged to sell the Farm to the highest
bidder if it accepted the purchase price.
[47]
There is no evidence that the first respondent obtained a higher
offer to purchase the Farm subsequent
to the auction held on 14 July
2022. In fact, the parties are
ad idem
that the offer made by
the second respondent was received by the first respondent prior to
the auction. The offer by the second
respondent was made on 15 June
2022. The conditions of sale reserved to the first respondent an
unlimited choice whether to sell
the Farm to the applicant or not in
the event of no higher offer being received after the auction took
place.
[48]
I am in agreement with the arguments raised on behalf of the first
respondent that the first
respondent reserved the right (without
qualification) to accept or reject the offer submitted by the
applicant without any obligation
to accept the applicant’s
offer. In the result the applicant has not established a clear right,
though open to some doubt
for the granting of an interim interdict.
[49]
It is common cause that the applicant applied for identical relief in
the Magistrate’s
Court at Dewetsdorp on 8 September 2022 on the
basis that a rule
nisi
be issued interdicting the first and
third respondents from transferring the Farm to the second respondent
pending an action which,
at present, have already been issued in the
Magistrate’s court.
[50]
The first respondent raised the issue of
res
judicata
on the ground that the magistrate had correctly
dismissed the urgent application brought by the applicant in the
Dewetsdorp Magistrate’s
Court. The applicant has filed a notice
of appeal in respect of the judgment handed down by the magistrate.
[51]
The pleas of
res
judicata
and
lis
pendens
are
undoubtedly cognate pleas and it follows that the elements required
to establish the one are the same as the elements required
to
establish the other.
[19]
The
fact that an urgent application was brought by the same applicant, on
the same grounds against the same first respondent and
which judgment
is now the subject of an appeal which is pending, affords
prima
facie,
a
good ground for a finding of
res
judicata
,
alternatively
lis
pendens
on
the basis that it is undesirable for there to be litigation in the
Magistrate’s Court, Dewetsdorp, this court, and a court
of
appeal on the same issue.
[52]
With regards to urgency, this matter is proclaimed to be urgent since
the launching of the urgent
application in the Magistrate’s
Court, Dewetsdorp on 8 September 2022. The applicant did not provide
any explanation for
the delay of at least 30 days between 8 August
2022 when the applicant, in writing, received word that the offer had
not been accepted
until the 8
th
of September 2022 when the
urgent application in the Magistrate’s Court was lodged. On 21
September 2021, 43 days after receiving
word that the offer to
purchase the Farm had not been accepted, this application was
launched in this court. I agree with the submission
made by Mr van
der Merwe on behalf of the first respondent that any urgency is
self-created.
[53
] The purpose of an award of costs to a successful
litigant is to indemnify him for the expense to which he
has been put
through having been unjustly compelled to initiate or defend
litigation, as the case may be
[20]
.
The ordinary practice is, of course, that costs follow the event but
this principle is subject to the general rule that costs,
unless
expressly otherwise enacted, are in the discretion of the court
[21]
.
The court should take into account all the circumstances before
exercising its discretion as to costs. It must also strive
to achieve
fairness to both parties. The postponement of this application on
Thursday, 29 September 2022 was due to the ill health
of the
applicant’s counsel. The first respondent is entitled to the
costs occasioned by the postponement.
[54]
In the affidavits filed by the applicant several allegations were
made regarding the honesty
and integrity of the legal representatives
acting on behalf of the first respondent. I agree with the contention
raised by Mr Van
der Merwe that these remarks and allegations are
uncalled for and unsubstantiated. Mr Verster, who appeared on behalf
of the applicant
at the hearing of this matter, was unaware of the
fact that summons had already been issued out of the Magistrate’s
Court,
Dewetsdorp. He obtained instructions at a late stage and
indicated that the applicant should not be penalized for not
receiving
the correct legal advice which lead to the urgent
application brought at Dewetsdorp.
[55]
On behalf of the first respondent a cost order is prayed for on an
attorney and client scale,
such costs to be payable by the applicant
and the applicant’s attorney de
bonis propriis
, jointly
and severally, the one to pay the other to be absolved. Taking
cognisance of the facts of this matter, the numerous legal
principles
applicable, the content of the correspondence appended to the
affidavits and referred to in paragraph 54 above, the
history of the
litigation and costs incurred by the applicant, I am of the view that
the first respondent is entitled to an order
as prayed for except for
the
de bonis propriis
order. In the result the following
order is made:
ORDER:
[56]
1. The application is
dismissed with costs on the
scale as between attorney and client.
2.
The applicant shall pay the wasted costs
occasioned by the postponement of the matter on 29 September
2022.
VAN
RHYN J
On
behalf of the Applicant: ADV.
M VERSTER
Instructed
by: HORN
& VAN RENSBURG ATTORNEYS
BLOEMFONTEIN
On
behalf of the First Respondent: ADV.
R VAN DER MERWE
Instructed
by: VAN
WYK & PRELLER ATTORNEYS
BLOEMFONTEIN
[1]
Setlogelo v Setlogelo
1914 AD 221
at 227.
[2]
Superior Court Practice Vol 2, D6-21.
[3]
Noormohamed v Visser
2006 (1) SA 290
(SCA) at [7].
[4]
Christie’s Law of Contract in South Africa, Seventh Edition, p
56.
[5]
SWA Almalgameerde Afslaers (Edms) Bpk v Louw 1956 (1) SA 346 (A).
[6]
1960 (4) SA 14 (E).
[7]
Act 68 of 1981.
[8]
At 16 E-G
[9]
At 17 B-C
[10]
2009 (2) SA 504
(SCA).
[11]
Withok at 509.
[12]
Command Protection Services (Gauteng) (Pty) Ltd t/a Maxi Security v
South African Post Office Ltd 2013
(2) SA 133 (SCA) at
[10].
[13]
[2010] 1 all SA 280 (SCA).
[14]
At [1].
[15]
Hlatshwayo v Mare & Deas 1912 AD 242.
[16]
Hersch v Nell 1948 (3) SA 686 (A).
[17]
Pick n Pay Retailers (Pty) Ltd v Eayrs and Others NNO
[2012] 1 All
SA 522
(SCA) at [21].
[18]
Laws v Rutherford
1924 AD 261
at 264.
[19]
Smith v Porrit and Others
2008 (6) SA 303
(SCA) at [10].
[20]
Erasmus v Grunow
1980 (2) SA 793
(O) at 798 B-C.
[21]
Union
Government v Heiberg
1919 AD 477
at 484.