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[2020] ZAGPPHC 106
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Hodoul v Elzaan Investments CC and Another (54675/2018) [2020] ZAGPPHC 106 (20 February 2020)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE: NO
(2)
Of INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
CASE NO: 54675/2018
20/2/2020
In
the matter between:
HODOUL:
ROLAND CHARLES
APPLICANT
And
ELZAAN
INVESTMENTS
CC
FIRST RESPONDENT
W
D SAAYMAN
INC
SECOND RESPONDENT
JUDGEMENT
Van
der Schyff, J
Introduction
[1]
The applicant seeks an order to the effect that the first respondent
ls ordered to pay him
an amount of R800 000,00 together with
mora
Interest and costs.
[2]
No order is sought against the second respondent as he was only
joined in so far as he may
have a direct and substantial interest in
the application.
[3]
The first respondent requested the court to condone the late filing
of its answering
affidavit.
The answering affidavit was filed one day late. No objection was
raised and the late filing of the respondents' answering
affidavit
was condoned.
Common
cause facts
[4]
The first respondent bought an immovable property at an auction. The
property had a basic
building structure on it which is damaged by
fire. The first respondent
assessed
the basic structure and initiated rebuilding the structure In
accordance with approved building plans. The applicant and
the first
respondent concluded a Sales Agreement on 24 August 2017 and a
Building Contract on 25 August 2017.
[5]
During September and October 2017 the applicant made payments in the
amount of R800 000
00 to the first respondent.
[6]
The first respondent cancelled the contracts between the parties and
retain ed the R800
000 .00.
Dispute of fact
[7] The
applicant contends that the payments were made In terms of the Sales
Agreement and represented
the purchase price of the property Payment
was done
with the aim of effecting transfer of the property Into
the name of the applicant. The first respondent contends that
transfer
of the property would only have taken place after payment of
the purchase price the costs and the costs incurred in terms of the
Building Contract.
[8]
Thea applicant
Inter
alia
annexed the
Offer to Purchase, its acceptance, and two e
mails
respectively dated 4 September 2017 and 18 October 2017 wherein the
applicant
authorised the second respondent to pay certain monies to “Elzaan
Construction”.
[9]
The first respondent avers that in addition to the Sales Agreement
and the Building Contract.
a further oral agreement was co
n
cluded
between the parties pertaining to further renovations.
[10]
The first respondent contends that the applicant was in breach of the
agreement between the parties
and as a result both the Sale Agreement
and the Building Contract were cancelled
.
In reply
,
the applicant denied that
the agreements were validly cancelled
.
[11]
I have no doubt t
hat
a reading of the papers reveal that several material disputes of fact
exists on the papers.
[12]
The two e-mails attached to the applicant’s founding affidavit
that authorities the second respondent
to pay out funds to “Elzaan
Construction”, cannot on face value be taken lo indicate that
the payments were made to
settle the purchase price to bring about
the transfer of the property the name of the applicant. as opposed to
payments made towards
the construction and renovations agreed upon by
the parties.
[13]
Although the applicant tries to set ringfence the Sales Agreement and
set apart from the Building contract,
it is evident from the terms of
the Sales Agreement and correspondence
between
the applicant and the first respondent that the two agreements were
linked to a certain extent.
[14]
The Sales Agreement additionally provides for the purchase price of
R800 000
.
00 to be paid in two
instalments of R400 00.00 - the first to be deposited with the
conveyancer or estate agent
,
which amount would only be
payable to the first respondent on registration of transfer of the
property in the name of the applicant,
and the second to be paid to
the first respondent upon the date of registration of transfer to the
applicant. The payments referenced
in the two e-mails were thus not
on face value made In accordance with
the Sales Agreement.
The first respondent additionally avers that the applicant paid an
amount of R900 000, 00
.
This is not
disputed
in reply
.
[15] The first
respondent avers that it was entitled to cancel the agreements
between the parties
and to retain the R800 000,00 as a
rouwkoop
.
Applicant claims to have
complied with the Sales Agreement and denied that the
respondent had any grounds to cancel the Sale Agreement.
[16]
It is trite that the so-called
Plascon
Evans-
principle
applies when-a Court decides an application on motion proceedings
Final relief can only be granted if the facts assisted
by the
respondents together with the admitted facts in the applicant's
affidavits justify such order. It is equally in that respondents
often attempt to create disputes of fact where there are none and
Southwood, in
Essential
Judicial Reasoning,
urges
Courts to adopt a 'robust approach' where spurious disputes of facts
are concocted.
[17] I am
not of the view that the respondents in this application created a
fictitious dispute of facts.
A real dispute exists, and in the
circumstances the applicant should have foreseen the factual disputes
and should have approached
the Court by way of action proceedings.
[18] As to the
applicable cost order that should be made, no case has been made out
for the general
principle that costs follow suit, not to apply
.
In addition
,
no basis has been laid for the court to -consider a punitive costs
order.
ORDER
As a result, the following order
is made
:
1. The matter is
referred for trial.
2. The notice of
motion shall stand
as a ·simple summons and
the respondents' notice of intention to oppose, as a notice to
defend the action
.
3. The applicant
shall deliver a declaration within 20 days of the date of this order;
whereafter
the normal rules relating to the filing of further
pleadings shall apply.
4
.
Costs shall be costs in the
action
E van der Schyff
Judge
of the High Court
,
Gauteng Division, Pretoria
Counsel
for the applicants
:
Adv T Jacobs
Instructed
by
:
Stopforth Swanepoel and Brewis Inc
Counsel
for the first respondent:
Adv WJ van
Wyk
Instructed
by:
Vogel Inc.
Date
of the hearing:
29
January
2020
Delivered:
20
February
2020