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[2022] ZAKZPHC 4
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Offerman and Another v Swanepoel and Another (6477/18P) [2022] ZAKZPHC 4 (10 February 2022)
IN THE HIGH COURT OF SOUTH AFRICA KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case No:
6477/18P
In the matter between:
KATJA
OFFERMAN
FIRST APPLICANT
ALBERDINA GELDENHUYS
N.O.
SECOND APPLICANT
and
PATRICIA ANNE
SWANEPOEL
FIRST RESPONDENT
MASTER OF THE HIGH COURT,
GRAHAMSTOWN SECOND
RESPONDENT
Date of set down
: 13, 14
September 2021; 18 January 2022
Date
delivered:
10 February 2022
ORDER
The following order is granted:
1.
It is declared that the sale agreement concluded between the
applicants and the first respondent on 2
September 2015 did not fail
by virtue of the non-fulfilment of the suspensive condition within
the period prescribed by the sale
agreement;
2. The applicants are
to pay the first respondent’s costs jointly and severally, the
one paying, the other
to be absolved.
JUDGMENT
MOSSOP AJ:
[1]
The first applicant is a qualified attorney who presently serves as a
magistrate in Makhanda, Eastern Cape.
Prior to settling there, she
and her husband, Mr Pierre Offerman (Pierre), at one stage lived in
the small village of Winterton,
in the foothills of the Drakensberg
in KwaZulu-Natal. There, the first applicant and Pierre met the first
respondent and her husband.
Their children went to school together
and eventually the two couples developed a strong friendship that
included, inter alia,
enjoying holidays together. The first applicant
and Pierre owned a plot of land of approximately 21 hectares in
extent with certain
improvements thereon in the environs of the
village of Winterton (the property). The bliss of this bucolic
friendship experienced
a setback, however, when the first applicant
and Pierre left Winterton sometime during 2000. Nonetheless, the
first applicant and
first respondent maintained their friendship
despite no longer living in the same town. The first applicant and
Pierre, however,
did not maintain their relationship and they
divorced in 2008 and on 13 November 2011 Pierre, unfortunately,
passed away. The second
applicant was appointed as the executor of
his estate.
[2] The
first applicant and Pierre were married in community of property and
consequently owned the property
in equal shares. Constructed on the
property were several dwellings, comprising three cottages, two flats
and a hostel. At the
time of Pierre’s death, the first
applicant was still a half owner of the property and the friendship
between the first applicant
and the first respondent was still
intact. Acting on her own behalf and on behalf of the second
applicant, the first applicant
proposed to the first respondent that
she purchase the property from Pierre’s estate and herself.
This was not something
that the first respondent had ever
contemplated, but after some consideration, she ultimately agreed to
do so, and the purchase
price was fixed at the sum of R1 million. A
written agreement of sale was accordingly prepared and signed by the
first and second
applicants on 4 August 2015 and by the first
respondent on 2 September 2015 (the sale agreement).
[3]
The sale agreement contained a suspensive condition (the suspensive
condition) that required the first respondent
to obtain a loan from a
financial institution within 30 days of the date determined in clause
3.4 of the sale agreement (the 30-day
period). As will appear more
fully hereafter, the applicants were of the view that the 30-day
period terminated on 30 November
2015. It appears that the first
respondent, at least initially, also believed this to be the case.
[4]
After signature of the sale agreement and prior to 30 November 2015,
the first applicant enquired from the first
respondent whether she
would be prepared to advance to her R100 000 of the R1 million
purchase price before transfer occurred as
a ‘deposit’.
The sale agreement made no provision for a deposit to be paid. The
reason for this request was that the
first applicant was under
pressure to pay a firm of attorneys for legal work done on her
behalf and she lacked the means
to make that payment. On 27 October
2015, the first applicant sent an email reminder to the first
respondent in which she stated:
‘…
and I just want to know if you are still
able to pay me a deposit of R100 000.00 so I can get them off my back
they sound very threatening
[sic].’
No
immediate response was received from the first respondent to this
email.
[5]
On 4 December 2015, the first applicant sent an email to the
nominated conveyancers entrusted with the transfer
of the property
and suggested that the sale agreement had failed because the
suspensive condition had not been fulfilled as the
first respondent
had not acquired the loan that she required by 30 November 2015. She
sought confirmation from the attorneys that
her understanding of the
position was correct. A week later, on 11 December 2015, the
attorneys responded to her in an email. They
did not address the
first applicant’s query in her email of 4 December 2015.
Instead, they informed her that the first respondent
was prepared to
advance the requested amount of R100 000 to the first applicant,
provided that the first applicant agreed to extend
the period within
which the first respondent had to acquire the loan to the end of
January 2016. Three days later, on 14 December
2015, the first
applicant responded as follows:
‘
What a relief thank you so much. My banking
details are:
(Banking details provided)
Have a very merry Christmas Season and lets trust that
it will all be smooth sailing in the new year.’
The R100
000 was paid to the first applicant the next day, 15 December 2015.
[6]
On an unspecified date in December 2015, the first respondent secured
her loan. Notwithstanding this, and the payment
of the ‘deposit’
of R100 000 to the first applicant, transfer of the property did not
occur. The applicants appear
to have taken the view, after signing
the sale agreement, that the property was worth more than the R1
million agreed to and that,
in particular, the first applicant had
been misled by the first respondent as to its true value. The first
applicant ascribed this
to her ‘naïve reliance upon the
First Respondent’s representation of the value of the
property’. The applicants
also contended that the sale
agreement had lapsed because the first respondent had not acquired
her loan by 30 November 2015, and
they therefore declined to allow
the transfer to occur.
[7]
The consequence of the impasse was the bringing of this application.
In this application, the applicants seek the following
relief:
‘
1. First Respondent is hereby ordered to vacate
the property described as Lot 5A, Winterton Settlement, Farm
no. 11774, Winterton,
KwaZulu-Natal and to restore possession thereof
to the Applicant [sic] by no later than 10 days from date of service
of this order;
2. That
the Sheriff of the High Court for the district of Winterton carry out
the eviction forthwith after the expiry
of the period set out in
paragraph 1 hereinabove, in the event of the first respondent not
vacating the property in terms of paragraph
1 hereof;
3.
That the First Respondent be ordered to pay the Applicants’
costs of the application on an attorney and client
scale in the event
that she opposes the application.’
[8]
The first respondent opposes that claim and has, in turn, brought a
counter-application in which she seeks the following
relief:
‘
1. That it is declared that the suspensive
condition, contained in clause 19 of the deed of sale concluded
between the Applicants
and the First Respondent at Ladysmith on 2
September 2015 (“the deed of sale”) has been validly
waived by the parties.
2. That
First and Second Applicants are ordered to sign all documents
necessary and to perform all actions necessary
to affect registration
of transfer of the property known as Lot A
5 A Winterton Settlement Farm No. 11774, in extent
21,1246 hectares, held by Title Deed No. T11254/1991 (“the
property”)
into First Respondent’s name.
3.
That the Sheriff of this Court is hereby authorised and directed to
sign all documents necessary and to perform all
actions necessary to
effect registration of transfer of the property into the First
Respondent’s name, in the event of the
First and /or Second
Applicants failing to comply with the provisions of paragraph 2 of
this order, within 10 days of the granting
of this order.
4.
That the second respondent is authorised and directed to sign and
provide to the conveyancers, Messrs McCauley and
Riddell of
Ladysmith, a certificate as intended in section 42(2) of the
Administration of Estates Act 66 of 1965, within ten (10)
days of
service of this order on Second Respondent.
5. That
the First and Second Applicants are ordered to pay the costs of the
counter application, jointly and severally,
the one paying the other
to be absolved.’
[9]
In the alternative, the first respondent seeks judgment against the
applicants for payments of the amounts of R893
528.30 and R100 000
respectively.
[10] The
application and counter-application were ultimately on 8 February
2019 referred by Hadebe J to the hearing of
oral evidence on 13 and
14 September 2021 on a raft of defined issues. Those issues were
subsequently reduced and refined to a
single issue. In terms of the
provisions of Uniform rule 33(4) I was ultimately requested by all
parties to determine whether the
sale agreement is of no force and
effect by virtue of the suspensive condition contained therein not
being fulfilled within the
period prescribed by the sale agreement. I
consider it convenient to decide this issue separately as its
determination may put
an end to the litigation between the parties.
[11]
When I was assigned the matter on 13 September 2021, that assignment
was done on very short notice, such that I had no
opportunity to read
the papers before the matter commenced. I was not aware of the issues
and had to be guided through the papers
by the parties. The parties
both elected not to lead any oral evidence but were content merely to
argue the matter further on the
papers. Having heard that argument,
but still not having read the papers, I indicated that I would read
the papers overnight and
would seek clarity from the parties in
respect of any issues of which I was unsure
of the next day, the matter having been set down for two
days. I read the papers overnight and the next day I raised two
issues
with the parties, namely:
(a)
the immovable property described in the notice of motion did not
conform with the description of the immoveable property
identified in
the sale agreement; and
(b)
by when did the suspensive condition have to be fulfilled?
[12] As
a consequence, both parties ultimately requested leave to deliver
supplementary affidavits dealing with
these two issues, which request
was granted, and the matter was adjourned to 18 and 19 January 2022
for this to occur and for further
argument.
[13]
The issue concerning the description of the property is easily
resolved. The notice of motion describes the property
as being ‘Lot
5A Winterton Settlement Farm no 11774’ whereas the sale
agreement refers to the property as being ‘Lot
A 5 A Winterton
Settlement Farm nr 11774.’ In their supplementary affidavit,
the applicants indicate that the description
contained in the sale
agreement is the correct description of the property. They sought an
amendment of the notice of motion, which
was not opposed and is
granted. The resolution of the other issue identified by me is not as
simply resolved.
[14]
The second issue identified by me falls within the issue that I am
required to determine, namely whether the sale
agreement failed by
virtue of a suspensive condition contained therein not being
fulfilled within the period prescribed by the
sale agreement. The
applicants’ case can fairly be summarised as follows: the first
respondent was given sole beneficial
occupation of the property on 31
October 2015. The suspensive condition had to be fulfilled within the
30-day period which began
running from that date. That meant that the
loan had to be acquired by the first respondent by 30 November 2015.
The loan was not
acquired by that date and so the sale agreement
accordingly failed automatically. That is the version against which
the issue before
me must be determined. The first respondent asserts,
inter alia, that the sale agreement did not fail by virtue of the
non-fulfilment
of the suspensive condition
[15]
The effect of a suspensive condition in a sale
agreement is that it postpones ‘the operation of the [sale
agreement] until
the happening of some uncertain future event’.
[1]
1
The Supreme Court of Appeal stated in
Hanuscke
Beleggings CC v Kungwini Local Municipality
that:
[2]
‘
An agreement of purchase and sale subject to a
suspensive condition is not a sale pending fulfilment of the
condition “but
there is nevertheless created "a very real
and definite contractual relationship" which,
on
fulfilment of the condition, develops into the relationship of seller
and purchaser . . .”.’ (Footnote omitted.)
[16]
As regards the position when a suspensive
condition is not timeously fulfilled, i
n
Design and
Planning Service v Kruger
Botha
JA said:
[3]
‘
In my view, when a
suspensive condition, of a kind which has not been inserted in the
contract for the specific benefit of one of
the parties only, remains
unfulfilled after the lapse of a reasonable time for fulfilment, the
contract is discharged automatically,
by virtue of an implied term to
that effect, unless there is something in the contract negativing the
implication of such a term,
and subject to the possibility of
fictional fulfilment of the condition by reason of the conduct or
inaction of either of the parties.
Ordinarily, no action on the part
of either of the parties equivalent to a placing
in
mora
of the other in relation to the
fulfilment of the condition as such is required before the contract
comes to an end.’
[17]
In
Commissioner,
South African Revenue Service v Bosch and another,
[4]
this approach was approved by the Supreme Court of Appeal where the
following was stated by Wallis JA:
‘
. . . the effect of
non-fulfilment of a suspensive condition is that the contract comes
to an end automatically. That follows necessarily
from the fact that
no action lies to compel the performance of a suspensive condition.
If there is no right to compel performance
there can be no question
of a breach warranting cancellation of the contract.’ (Footnote
omitted.)
[18] As regards the onus, it has been held
that:
‘
In our law the fulfilment of a true suspensive
condition must be pleaded and proved by the person who is relying on
the contract,
but the breach of a term in the contract must be
pleaded and proved by the person who relies on such a breach as a
ground for repudiating
liability under the contract.’
[5]
[19]
The Supreme Court of Appeal, in
Dormell
Properties 282 CC v Renasa Insurance
Co
Ltd
and
others NNO,
[6]
stated
that:
‘
The terms of the contract are the decisive
criterion by which any potential expiry of a deadline has to be
determined’.
[20]
It is therefore to the sale agreement that I now turn. The suspensive
condition is contained in clause 19 of the sale
agreement, and reads:
‘
It is
a condition of this sale agreement, which condition is created for
the benefit of both SELLER and the PURCHASER, that the
PURCHASER is
able to obtain a loan at current bank rates and conditions normally
applicable to housing loans, for the sum of not
less than R1
000 000.00 within 30 (THIRTY) days from the date determined in clause
3.4 above. The parties acknowledge that
the PURCHASER cannot acquire
the property which is hereby sold if the aforementioned loan is not
obtained. The parties furthermore
agree that the granting of a loan
in principle, pending the availability of funds, shall be regarded as
compliance with this condition.
The aforementioned period may,
however, prior to expiry thereof, in the discretion of the SELLER, be
extended provided that such
extension shall be in writing and signed
by all parties. Should the aforementioned condition not be fulfilled,
this sale agreement
shall be of no force and effect.’
[21]
Clause 3.4, referred to in clause 19, reads as follows:
‘
The PROPERTY is presently occupied by unlawful
occupants whom the SELLER authorises the PURCHASER to have evicted at
her instance
and cost, it being recorded that sole beneficial
occupation shall only be enjoyed by the PURCHASER once the said
occupants have
vacated or been evicted from the PROPERTY, this being
the date from which occupational interest shall be calculated.’
[22]
From the wording of clauses 19 and 3.4 of the
sale agreement it is evident
that
there is no fixed date from which it can be determined that the
30-day period commenced running. The issue before me could
thus
simply be dealt with on the basis that it is not possible to
determine by when the suspensive condition commenced running
and by
what date it had to be fulfilled, and to therefore hold that the
suspensive condition never became operative and, consequently,
that
the sale agreement did not fail. However, that would lead to an
‘insensible or unbusinesslike’ interpretation
of
the sale agreement and would undermine its
apparent purpose.
[7]
[23]
As
was said in
Versveld v SA Railways and
Harbours
,
[8]
‘[i]n every computation of time there must be an instant from
which time [commences to] run’. Usually, a contract will
provide that something shall be done within a certain number of days
from the date of its conclusion. But this may not necessarily
be
calculated from a date: it may be calculated from the happening of an
event.
[9]
In this matter it appears that the parties agreed on the latter
approach, namely that an event would determine the commencement
date
of the running of the 30-day period. Clause 3.4 defines that event,
being the removal of the acknowledged unlawful occupants
from the
property.
[24]
The only sensible meaning to be given to clauses 19 and 3.4 is that
upon the removal of the last unlawful occupant, the
first respondent
would be regarded as having achieved ‘sole beneficial
occupation’ of the property. When that was achieved,
the 30-day
period would commence to run. In terms of clause 3.3 of the sale
agreement, the first respondent’s obligation
to commence paying
occupational interest would also commence on the achievement of sole
beneficial occupation by the first respondent.
It is therefore
necessary to determine what ‘sole beneficial occupation’
means and when, if it all, it was achieved.
[25]
‘Beneficial occupation’ is a term widely used both in
common law and in various contracts and statutes. In
the context of
lease agreements, it is used to mean the free
and undisturbed use (
commodus
usus
) of the leased asset by the lessee.
[10]
In
Ex parte Van Deventer,
[11]
the court defined beneficial occupation to
mean
‘
. . . occupation which would
produce a benefit’.
‘
Sole’ when used as an adjective, means
‘being the only one’ or ‘not shared with anyone
else’.
[12]
In the context of the sale agreement, which provided for the first
respondent to be afforded occupation on signature of the sale
agreement, ‘sole beneficial occupation’ must therefore
mean that the first respondent, to the exclusion of all others,
was
to enjoy the benefit of occupation of the property pending transfer.
[26]
The applicants allege that ‘. . . the first respondent was
given sole beneficial occupation of the property by
no later than 31
October 2021’.
However,
the applicants go on to state immediately thereafter that
‘
By this date [31 October 2015] no occupants
remained on the property other than David and Gillian Atkinson’.
[27] It
appears to me that these two statements are contradictory given the
meaning of ‘sole beneficial occupation’
discussed above.
Mr David Atkinson and Mrs Gillian Atkinson (the Atkinsons) occupied a
portion of the property and had beneficial
occupation of that portion
that they occupied. It follows that the first respondent could not
have had sole beneficial occupation
of the entire property. In
addition, the Atkinsons must have been unlawful occupants prior to 31
October 2015. That this must be
so is evidenced by the fact that the
applicants allege that they only concluded a lease agreement with the
Atkinsons on that date
(the first lease agreement). This would not
have been necessary had the Atkinsons already occupied a portion of
the property in
terms of a valid, existing lease. As evidence of the
conclusion of the first lease agreement, the applicants put up a copy
of that
document. It is, however, inchoate. It bears only the
signature of Mr Atkinson, who signs as ‘lessor’ (which he
was
not). Having signed in that capacity, he could not also sign in
the space allowed on the document for the lessee to sign. The first
lease agreement was not signed by the applicants or their duly
authorised representative. No evidence of a properly executed lease
agreement in place on 31 October 2015 has therefore been put up.
[28]
The first respondent denies that the first lease agreement was
concluded on 31 October 2015. She does, however, agree
that a lease
agreement was concluded between the Atkinsons and the applicants but
states that this occurred only in November 2015.
She puts up a signed
lease agreement in support of her allegation (the second lease
agreement). This lease agreement is signed
by both parties to the
agreement. It has a failing though: Mr Atkinson did not date his
signature. The attorney who drew the second
lease agreement, Mr James
Howieson Marshall, confirmed under oath that he drew it and that it
was signed by the applicants’
representative, who happens to be
the first respondent’s husband, on 10 November 2015. It is thus
not possible to determine
precisely when the second lease agreement
was executed by both parties. Mr Atkinson may have signed before 10
November 2015, but
he may also have signed after that date.
[29] Mr
Atkinson deposed to a confirmatory affidavit and persisted in his
version that he concluded a written lease agreement
with the
applicants on 31 October 2015. He made no mention whatsoever of the
fact that he signed the second lease agreement, and
he accordingly
did not use the opportunity to disclose when he did so sign that
agreement. I have no hesitation in rejecting his
submission that the
first lease agreement was the operative agreement and that it
operated from 31 October 2015. If that was the
case, there would have
been no need for him to sign the second lease agreement, on which
occasion he signed in the correct place
as ‘lessee’. At
no stage does he assert that the first lease agreement was an oral
lease – on his version it
was written. Mr Atkinson goes on to
state that he concluded several other lease agreements with the first
respondent after concluding
the first lease agreement (which was
concluded with the applicants, as was the second lease agreement) and
provides copies of such
other lease agreements. He does not, however,
account for the conclusion of the second lease agreement nor does he
give an explanation
as to why he signed it if he had already signed
the first lease agreement.
[30]
The applicants submit that I need not consider whether the dates they
have pleaded are correct or not because the first
respondent has
admitted them and they are thus not in dispute. They correctly state,
via the first applicant, that
‘
There is no dispute regarding the fact that the
first respondent ought to have obtained the necessary loan in order
to satisfy the
suspensive condition contained in clause 19 of the
agreement on 30 November 2015 failing which the agreement would
lapse.’
While the first respondent initially admitted both the
date by which she was given sole beneficial occupation and the date
by which
she had to secure the loan, this is no longer the case. I
shall deal with why this is no longer the first respondent’s
position
shortly. Despite this invitation to assume the correctness
of the dates alleged by the applicant and admitted by the first
respondent,
it is an invitation that I must decline. I am of the view
that I must assess whether the applicants’ contention as to the
date upon which the first respondent was allegedly given sole
beneficial occupation and the date by which the loan was to be
obtained
is supported by the provisions of the sale agreement.
[31] The first respondent
made the admissions contended for by the applicants. As regards the
date of sole beneficial
occupation, she stated as follows:
‘
Vacant possession and occupation of the property
was eventually given to me at the end of October 2015.’
Concerning the date by when the loan had to be acquired
by her, she stated as follows: ‘I do not dispute that in terms
of
the agreement of sale, the necessary loan in order to satisfy the
suspensive condition contained in clause 19 of the agreement had
to
be approved on or before 30 November 2015.’
[32]
The applicants have relied on these admissions and submitted that
they resolve the issue before me in their favour. The
first
respondent in her supplementary answering affidavit states the
following in connection with the date of 30 November 2015:
‘
. . . when the First Applicant notified my
husband telephonically on the evening of 30 November 2015 that the
period I was afforded
to obtain a loan would have expired that very
day, my husband and I had no reason to query her as a dear friend and
also a legal
professional. At that stage this date was the date the
First Applicant had come up with and I even accepted in good faith in
my
original Answering Affidavit, as drawn up by my erstwhile
attorneys and unchecked by them, that the date of 30
November 2015 was in fact the date to use to establish whether the
Deed of
Sale lapsed or not.
27. It was only when Justice [sic] Mossop at the last
hearing in this matter mero motu pointed it out that the date as
mentioned
in clause 3.4 was never identified, when I realised that
the date of 30 November 2015 could never have been the date to work
with.
My reference in the Answering Affidavit that this date was
correct, was therefore incorrect and was merely made as the date I
believed
was the correct date as constantly referred to by the First
Applicant and never properly checked as being correct by neither my
erstwhile attorneys nor myself. It simply did not cross my mind to
have ever questioned the first applicant.’
[33]
Given the friendship between the first applicant and the first
respondent, and the fact that the first respondent was
a qualified
attorney, I am inclined to accept that the first respondent may have
simply accepted the correctness of what the first
applicant stated
and that her admissions were made without careful consideration and
without reference to what the sale agreement
actually provided.
[34]
The allegations as to when sole beneficial
occupation was achieved is of cardinal importance as the running of
the 30-day period
is inextricably linked to it. The sale agreement
distinguished between possession, occupation and sole beneficial
occupation. Possession
and occupation occurred immediately upon
signature of the sale agreement (the last signing party signed on 2
September 2015). It
is not disputed that when the first respondent
was given possession and occupation there were more unlawful
occupiers than merely
the Atkinsons on the property. Thus possession
and
occupation could not mean
sole beneficial occupation. It is entirely possible for a party to be
given occupation but not beneficial
occupation.
[13]
Sole beneficial occupation could only have been achieved later, after
possession and occupation had been given to the first respondent.
[35]
Where a party alleges in a pleading that a contract has a particular
legal meaning or consequence, whereas that
may not be the case, an
admission by the other party that the party making the allegation is
correct does not make it so. What
the law is has always been a matter
for the court to determine, and it is well established
that mistakes about the law which the parties make are
not binding on a court. In
Paddock Motors (Pty) Ltd v Igesund
[14]
the court observed that it would be:
‘
. . . an intolerable position if a Court were to
be precluded from giving the right decision on accepted facts, merely
because a
party failed to raise a legal point, as a result of an
error of law on his part.’
[36] If the
allegations made by the applicants are not supported by the sale
agreement or the facts, then any admissions made by
the first
respondent to those allegations are meaningless. The court cannot
rubberstamp an allegation and an admission thereof
simply because it
was made and admitted, if that is not in accordance with the
provisions of the sale agreement that the court
is called upon to
consider and interpret. An allegation made in error and admitted in
error cannot be upheld by a court as being
correct.
[37]
I must thus find that on 31 October 2015, the Atkinsons were in
occupation of one of the dwellings on the property
and that they had
not concluded a written agreement of lease with either the applicants
or the first respondent. They remained
unlawful occupants. That
having been established, it is equally apparent that the first
respondent had not attained sole beneficial
occupation of the
property by 31 October 2015. The applicant’s contention
therefore that the 30-day period commenced to run
from 1 November
2015, and that it was completed on 30 November 2015, is incorrect and
it follows that the sale agreement did not
automatically fail on 30
November 2015. The conduct of the first applicant in accepting the
R100 000 deposit from the first respondent
on 15 December 2015
moreover is not consistent on her part with a sincere belief that the
sale agreement had, indeed, failed on
30 November 2105.
[38]
A final issue needs to be dealt with. This deals with the legal
representation of the first respondent. On 13 September
2021 when the
matter was called, I was advised that the first respondent at that
stage was unrepresented. She had previously been
represented but was
no longer represented. She, however, informed me that she now wished
to be represented by a certain Mr de Beer,
who was present at court.
Mr de Beer describes himself in an affidavit that he submitted during
the proceedings as ‘a legal
advisor and a well-known social
justice activist’. It transpired that Mr de Beer was not an
attorney or an advocate of this
court, which was confirmed by the
first respondent. Mr Schaup, who appeared for the applicants, at that
stage helpfully drew my
attention to the fact that a substantive
application, seeking precisely the same relief, namely the
representation of the first
respondent by Mr De Beer, had been
brought by the first respondent prior to the matter being assigned to
me. That application had
served before Diedricks AJ who, after
hearing argument, refused the application. A week before the matter
was assigned to me, Diedricks
AJ had refused an application for leave
to appeal his decision. When I was advised of these facts, which were
admitted by the first
respondent, I indicated to the first respondent
that as the issue of representation had already been determined, I
was bound by
Diedricks AJ’s decision. I indicated that she
could not be represented by Mr de Beer, but I assured her, however,
that whenever
she wished to seek advice from him, she would be at
liberty to do so. This held true for the entire hearing and the first
respondent
frequently requested an opportunity to seek advice from Mr
de Beer. She was allowed to do so on each and every occasion that she
requested such an opportunity. The matter ultimately became
part-heard for the reasons previously explained and when it
recommenced
on 18 January 2022, I was informed that the first
respondent had sought reasons for my refusal to allow Mr de Beer to
represent
her. I had no knowledge of this request having been
delivered. I am an acting judge and after my appointment had ended, I
returned
to my practice as an advocate. Prior to returning to my
practice I was not advised of the request for reasons nor was I so
advised
once back at my practice. The court file remained at the
court, and I next saw it again on 18 January 2022, the day that the
resumed
hearing commenced. I indicated that day that the matter
should proceed and that I would provide my reasons in my final
judgment.
Upon reflection, I made no order but simply indicated that
as the issue had already been determined by Diedricks AJ, Mr de Beer
was not entitled to represent the first applicant.
[39] I
accordingly determine the only issue that I was asked to determine as
follows:
(a)
It is declared that the sale agreement concluded between the
applicants
and the first respondent on 2 September 2015 did not fail
by virtue of the non-fulfilment of the suspensive condition within
the
period prescribed by the sale agreement;
(b)
The applicants are to pay the first respondent’s costs jointly
and
severally, the one paying, the other to be absolved.
MOSSOP AJ
APPEARANCES
Counsel for the
applicants :
Mr D. Schaup Instructed by:
Hay
and Scott Attorneys
First Floor, Alexander Forbes Wing 3 Highgate Drive
Redlands Estate Pietermaritzburg
Counsel for the first
respondent
:
In
person
Dates of
Hearing :
13,14 September 2021; 18 January 2022
Date of
Judgment
: 10
February 2022
[1]
Tamarillo (Pty) Ltd v BN Aitken (Pty) Ltd
1982 (1) SA 398
(A) at
432C.
[2]
Hanuscke Beleggings CC v Kungwini Local Municipality
[2012] ZASCA
112
para 11.
[3]
Design and Planning Service v Kruger
1974 (1) SA 689
(T) at 697G-H.
[4]
Commissioner, South African Revenue Service v Bosch and another
[2014] ZASCA 171
;
2015 (2) SA
174
(SCA) para 31.
[5]
Resisto Dairy (Pty) Ltd v Auto Protection Insurance Co Ltd
1963 (1)
SA 632
(A) at 644G-H.
[6]
Dormell Properties 282 CC v Renasa Insurance Co Ltd and others NNO
[2010] ZASCA 137
;
2011 (1)
SA 70
(SCA) para 26.
[7]
Natal Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
2012 (4) SA 593
(SCA) para 18.
[8]
Versveld v South African Railways and Harbours
1937 CPD 55
at 58.
[9]
Lee and Honoré The South African Law of Obligations 2 ed
(1978) at 49.
[10]
Sishen Hotel (Edms) Bpk v Suid-Afrikaanse Yster En Staal Industriële
Korporasie Bpk 1987 (2) SA 932 (A).
[11]
Ex parte Van Deventer
1950 (2) SA 90
(N) at 92.
[12]
The Cambridge Online Dictionary:
https://dictionary.cambridge.org/dictionary/english/sole.
[13]
Arnold v Viljoen 1954 (3) SA 322 (C).
[14]
Paddock Motors (Pty) Ltd v Igesund
1976 (3) SA 16
(A) at 23F-G.