About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2019
>>
[2019] ZALMPPHC 12
|
|
Phahlana Hunadi Quantity Surveyors CC v Dankuru and Others (978/2015) [2019] ZALMPPHC 12 (27 March 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
Case
No: 978/2015
In the matter between:
PHAHLANA HUNADI
QUANTITY SURVEYORS CC
APPLICANT
AND
MAJELATITJENG
CONDRAD DANKURU
1
st
RESPONDENT
MATSHIDISO
VICTORIA DANKURU
2
ND
RESPONDENT
HANSTOCK
VAN DEN HEEVER ATTORNEYS
3
RD
RESPONDENT
LOURENS
S LEE ATTORNEYS
4
TH
RESPONDENT
JEFF
MATHABATHA INCORPORATED
5
TH
RESPONDENT
THE REGISTAR OF DEEDS
6
TH
RESPONDENT
JUDGMENT
MULLER J:
[1] The applicant
launched motion proceedings on 11 May 2015. It is prudent before the
background facts are set out to refer to
the relief claimed by the
applicant.
[2].
The applicant claims, first of all, for a declaratory order that it
was the first to acquire the property from the first and
second
respondents in terms of a deed of sale dated 7 July 2005. Secondly, a
declaratory order is claimed that it had paid the
amount of R70
000.00 towards the full purchase price on 7 July to the first and
second respondents inclusive of the costs of preparation
of the deed
of sale as well as the costs of transfer and the costs incidental to
the registration of transfer of the property in
the name of the
applicant. Thirdly, an order that the first and second respondents
forthwith pass transfer of the property to the
applicant is sought.
Fourthly, the applicant seeks an order that the first and second
respondents repay the amount of R41 143.20
being an overpayment made
to the respondents as well as interest on the amount at a rate of 15,
5% per annum calculated from 7
May 2005 together with the costs of
the application.
[1]
[3] On
26 July 2016 the court ordered the joinder of the fourth, fifth and
sixth respondents to the proceedings.
[2]
At the same time an order was also made that pending the finalization
of the application, the property may not be transferred to
a third
party.
[4] The application is
opposed by the first and second respondents. In their answering
affidavit every conceivable defence is raised
against the claims of
the applicant which included of a plea of prescription.
[5] The application was
set down for hearing on 21 February 2019. On that day counsel
appeared and handed up to the court a letter
from advocate PW
Makhambeni, who confirmed that he is briefed in the application and
that the date was arranged with him but that
he was unable to attend
due to his non availability as he was detained in the Mpumulanga
Local Division at Middelburg. The application
was postponed until 25
March 2019 to enable him to appear and argue the application. The
court was also informed that the parties
reached an agreement that
the defence of prescription will be dealt with on 25 March 2019. The
costs were reserved and notice was
given to advocate Makhambeni to
advance reasons on 25 March 2019 why he should not personally be held
liable for the wasted costs
of 21 February 2019.
[6]
Before argument commenced an order was made in terms of rule 33(4)
that the question of prescription be adjudicated
first as a matter of
convenience before any other issue.
[7] I
now turn to the facts. The applicant is Phalana Hunadi Quantity
Surveyors CC a Close Corporation.
It entered into a written contract
of sale on 7 July 2005 with Mr and Mrs Dankuru
[3]
the owners of Erf 70 situated in Lebowakgomo.
[4]
[8] The
relevant portions of the deed of sale read as follows:
“
2.
The Seller hereby sells the property to the Purchaser who hereby
purchases same for the sum of
R25
000.00 (TWENTY-FIVE THOUSAND RAND)
2.1. The sum of R25000.00
shall be paid to the conveyancer on date of registration of
transfer.”
“
3.1.
Possession of the property shall be given to and taken by the
Purchaser on DATE OF REGISTRATION from which date the property
shall
be held by the Purchaser at his own risk and expense and from which
date the Purchaser shall be liable for all rates and
taxes and other
charges levied in respect of the property. The purchaser shall on
demand refund to the Seller any rates and taxes
pre-paid beyond the
date of possession.”
“
5.1.
Transfer of the property shall be effected by the Sellers’s
Conveyancers as soon as possible, after the Purchaser shall
have
complied with his obligations in terms of the agreement
5.2. The costs of and
incidental to the registration of transfer of the property into the
name of the Purchaser and the costs of
preparation of this agreement
shall be borne and paid by the Purchaser.”
[9]
The fourth respondent, Lourens S Lee Attorneys, was appointed as the
seller’s conveyancer in terms
of the deed of sale. And on the
same date the deponent to the founding affidavit deposited, on behalf
of the applicant, R70 000.00
into the account of the first
respondent, as payment of the purchase price and the other costs.
[10] The
deponent notified the fourth respondent on 21 July 2005 that the
applicant had already made payment of an amount
of the purchase price
and costs in the amount of R70 000.00 to the first and second
respondents and supplied him with written the
proof of payment. The
fourth respondent rendered an account to the applicant (backdated to
7 July 2005) in the amount of R3 856.80
in respect of the transfer
costs, preparation of the deed of sale and other costs incidental to
the transfer of the property.
[11] The
applicant contends that payment of the amount of R70 000.00, into the
account of the first and second respondent,
was an overpayment in the
amount of R41 143.20, as no legal basis for their entitlement to the
amount existed. In short, the applicant
claims that the first and
second respondents were enriched at the expense of the applicant.
[12] During
September 2005 the applicant was informed by the fourth respondent
that the transfer and registration of the property
was delayed until
further notice, due to a moratorium imposed by the Lepelle-Nkumpi
Local Municipality which was undergoing a land
audit.
[13] Three years
later on 21 September 2008 the deponent attended the offices of the
fourth respondent once again. He was
then informed that the fourth
respondent experienced difficulties to transfer the property because
the first and second respondent
attempted to sell the property to a
third party, the identity of which was not disclosed to the
applicant.
[14] The deponent
proceeded on the very same date to instruct attorney Jeff Mathabatha
Incorporated, (the fifth respondent) to put
the first and second
respondent on terms to take the necessary steps to transfer and
register the property in the name of the applicant.
The fifth
respondent addressed a letter dated 18 September 2008, to the fourth
respondent. (I will assume that the date of 21 September
2008, above,
is incorrect and should be 12 September 2008 as stated in the letter
of the fifth respondent, to which I shall turn
presently. Nothing
turns on that date).
[15] Although
the deponent is silent on this important event in the founding
affidavit, paragraph 4 of the letter addressed
to the fourth
respondent made reference to the first respondent attending at the
offices of the fifth respondent together with
the deponent. The
relevant paragraph states:
“
On
the 18
th
instant our client and Mr Dankuru called into our office and Mr
Dankuru promised that he will instruct you to transfer the said
property into our client’s name.”
[16] Nothing
came of the request in the letter. However, the fourth respondent, on
3 November 2008 wrote a letter in
the following terms:
“
Hereby
our office undertakes to pay the amount of R70 000.00 into your bank
account on date of registration, on condition that all
simultaneous
transactions will register successfully and that the guarantees in
our favour will pay out successfully.”
[17] The
contents of the letter is simply nonsensical if measured against the
facts and the history of the matter. There
was neither an obligation
derived from the deed of sale for insistence on a guarantee from the
applicant to secure the purchase
price, nor was it necessary. The
purchase price and costs had already being paid on the date the deed
of sale was concluded, the
written proof of which was supplied to the
fourth respondent. The deed of sale was never amended by the parties.
[18] On 25
May 2015 the applicant attended the offices of the third respondent.
The first respondent was also called
to attend. He was, however, not
prepared to discuss the matter but informed the applicant that he had
sold the property to the
applicant for R700 000.00 and that the
amount had not been paid. He refused to partake in the discussions.
This change of tack
by the first respondent is surprising. He cannot
be taken seriously without production of a written deed of sale
evidencing that
he had sold the property for R700 000.00 to the
applicant.
[19]
The first and second respondent in their answering affidavit aver
that the obligation to transfer the property
into the name of the
applicant is a debt as envisaged by the Prescription Act.
[5]
The applicant settled all the transfer costs on 7 July 2005 and
acquired the right to transfer of the property on that date. The
application to effect transfer of the property was launched on 11 May
2015 which is more than three years after that date upon
which the
debt became due. The claim therefore has been extinguished by means
of prescription.
[20] The
applicant answered the allegations in its replying affidavit by
stating that it complied with its obligations
on 7 July 2005 by
making payment of the purchase price plus an advance of R45 000.00 to
cover the estimated costs of transfer and
the costs of preparation of
the deed of sale. The applicant performed its reciprocal contractual
obligation and it is for the respondents
still to perform their
reciprocal part of the contract. It is contended by the applicant
that it is not open to the respondents
to rely on prescription.
[21] The
version of the applicant is not seriously disputed by the first and
second respondents, and, is therefore,
accepted as the correction
exposition of the events for the purposes of the decision whether the
claims of the applicant have prescribed.
[22] It is
clear from a simple reading of clause 2 of the deed of sale that the
agreed purchase price was R25 000.00,
which was payable to the fourth
respondent, as the appointed conveyancer, on the date of registration
of the transfer of the property
into the name of the applicant.
[23] Clause
5.2 stipulates that the costs of the registration and incidental
costs are payable on demand. The demand
was made by way of the
account in the amount of R3 856.80 rendered to the applicant by the
fourth respondent. The amount of R70
000.00 was paid to the first and
second respondents which included both the amount in respect of the
account rendered and the purchase
price.
[24]
Performance, admittedly, was not strictly in terms of the contract,
but the first and second respondents
accepted payment of the
purchase price and costs in the amount of R70 000.00, instead of
insisting on the purchase price be paid
to the conveyancer on date of
transfer as stipulated. The first and second respondents, therefore,
waived that term in the deed
of sale. The result is that the
applicant duly performed all its obligations in terms of the deed of
sale.
[25] There is no doubt
that an overpayment in respect of the purchase price and the attended
costs had been made by the applicant
in terms whereof the first and
second respondents were unjustly enriched.
[26]
In
Van
Staden v Fourie
[6]
the Appellate Division
referred with approval to the following statements in respect of
prescription of the right to reclaim an
overpayment.
“’
By
terugvorderingsregte loop verjaring van die dag waarop die
terugvorderaar presteer het – sy terugvorderingsreg onstaan
immers op daardie dag.’
Ter
stawing van hierdie stelling verwys die geleerde skrywers na ‘n
aantal beslissings van ons Howe. In
The
Liquidators of the Paarl Bank v Roux and Others
(1891) 8 SC 205
het dit gegaan oor die verjaring van ‘n
condictio
indebiti
.
Op
208 sể De Villiers HR:
‘…
(H)having
paid out the money under this mistake of fact, she is entitled to the
condictio
indebiti.
But
the further question arises, when would her cause of action
accrue?...Her cause of action would arise immediately after she
had
paid the money – so soon she was entitled to get it back.’”
[27] The next aspect
which must be addressed is whether the claim for repayment and the
claim for transfer of the property into
the name of the applicant is
a “debt” as envisaged by section 10(1) of the
Prescription Act which provides that:
“
Subject
to the provisions of this Chapter and of Chapter IV, a debt shall be
extinguished by prescription after the lapse of the
period which in
terms of the relevant law applies in respect of the prescription of
such debt.”
[7]
[28]
The term “debt” is not defined in the Prescription Act
but it was given the meaning ascribed by the
Shorter Oxford
Dictionary
[8]
to wit:
“
1.
Something owed or due; something (as money, goods or service) which
one person is under the obligation to pay or render to another.
2. A liability or
obligation to pay or render something; the condition of being so
obligated.”
[29]
The Constitutional Court preferred a narrow interpretation of the
term “debt” and held that it does not include
every
obligation to do or to refrain from doing something apart from
payment or delivery, as was held in
Desai
NO v Desai and Others.
[9]
[30]
A personal right accrued to the applicant by virtue of fact that the
applicant has made a payment which was not
owing to the first and
second respondents to claim repayment of the said amount. The
obligation to repay the amount of R41 143.00
which was overpaid is a
“debt” as envisaged by the Prescription Act which became
immediately due and payable by the
first and second respondent on 7
July 2005. Prescription began to run as soon as the debt is due.
[10]
The claim for repayment which is in essence an enrichment claim, on
the facts, has prescribed on 7 July 2008.
[31]
If the contents of the letter written by the fifth respondent is
taken on face value the first respondent, on 18 September
2008,
acknowledged that the first and second respondents are obliged to
effect transfer of the property into the name of the applicant.
[32] Section 14 of the
Prescription Act reads:
“
(1)
The running of prescription shall be interrupted by an express or
tacit acknowledgement of liability by the debtor
(2) If the running of
prescription is interrupted as contemplated in subsection (1),
prescription shall commence to run a fresh
from the day on which the
interruption takes place or, if at the time of the interruption or
any time thereafter the parties postpone
the due date of the debt,
from the date upon which the debt again becomes due.”
[33] The
evidence contained in the letter is inconclusive to hold that the
first respondent acknowledged that they are
indebted to the applicant
in the amount of R41 143. 20. But even if it is accepted that the
acknowledgement interrupted the running
of prescription, the running
of prescription, would have commenced afresh from 18 September 2008
for a period of 3 years. The debt
would have prescribed on 19
September 2011 under such circumstance.
[34] A valid
contract of sale is concluded:
“
When
parties who have the requisite intention agree together that the one
will make something available to the other in return for
the payment
of a price the contract is a sale”
[11]
[35]
The right on the one hand to claim transfer of the property and the
obligation to transfer the
property, on the other, has arisen
ex
contractu
on the date that the applicant complied with its obligation to pay
the purchase price and costs. On that date a right of action
accrued
to the applicant to claim specific performance.
[12]
[36]
The first and second respondent is obliged to render the property in
terms of the contract of
sale to the applicant. There is no doubt
that a claim for the purchase price constitutes a debt for the same
reason that a claim
for specific performance of the purchase price
constitutes a “debt.” A claim for transfer of the
property, is in my
judgment a “debt” as envisaged by the
Prescription Act.
[13]
[37] The
right to claim transfer of the property, has prescribed on 7 July
2008. The acknowledgement by first respondent
on 18 September 2008
that the property be transferred to the applicant was made after the
claim has prescribed, but in any event,
if I am wrong, the
acknowledgement had the effect of interrupting prescription. The
running of prescription, therefore, started
afresh on 19 September
2008 and ran until 19 September 2011 when the claim prescribed, yet
again.
[38]
The declaratory orders claimed are premised on the sustainability of
the claims for repayment of the amount
of R41 143.20 and transfer of
the property into the name of the applicant, both of which have
prescribed. It is unfortunate, but
the applicant has itself to blame
for the state of affairs. Its dilatoriness to institute proceedings
promptly is the cause of
its misfortune.
[39] The
point
in limine
that the claims of the applicant have
prescribed, is upheld
ORDER
.
The
application is dismissed with costs, such costs to include the
reserved costs
.
G.C MULLER
JUDGE OF THE HIGH
COURT, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
DATE OF HEARING
: 25 March 2019
DATE OF JUDGEMENT
: 27
March 2019
APPLICANT
: Adv PW
Makhambeni
RESPONDENT
:
Mr SN Mokone
[1]
Interim relief is
also claimed but it is unnecessary to refer to that relief for the
purposes of this judgment.
[2]
The fourth
respondent is Lourens S Lee Attorneys. The fifth respondent is Jeff
Mathabata Incorporated Attorneys and the sixth
respondent is the
Registrar of Deeds.
[3]
Mr MC Dankuru is
the first respondent and Mrs MV Dankuru is the second respondent.
The third respondent is Henstock Van den Heever
Attorneys.
[4]
Hereinafter “the
property”.
[5]
Act 68 of 1969.
[6]
1989 (3) SA 200
(A) 215B-D.
[7]
s 11 (d) provides
that: “The period of suspension of debts shall be the
following: (d) save where an Act of Parliament provides
otherwise,
three years in respect of any other debt.”
[8]
Electricity
Supply Commission v Stewarts and Lloyds of SA (Pty)
Ltd 1981 (3) 340 (A) 334E-G;
Makate
v Vodacom Ltd
2016 (4) SA 121
CC para 85.
[9]
[1995] ZASCA 113
;
1996 (1) SA 141
(A) 146I
.
[10]
s 12 of the
Prescription Act.
Benson
v Walters
1984 (1) SA 73
(A
);
Santam
Ltd v Ethwar
1999
(2) SA 244 (SCA).
[11]
Kerr AJ
The
Law of Sale and Lease
3
rd
ed LexisNexis Durban (2004) 3.
[12]
Drennan Maud & Partners v Town
Board of the Township Pennington
[1998] ZASCA 29
;
1998
(3) SA 200
SCA 212F-J.
[13]
Barnett and
Others v Minister of Land Affairs and Others
2007
(6) SA 313
(SCA) par 19;
Frieslaar
NO v Ackerman
(1242/2016)
[2017] ZASCA 3
(2 February 2018) par 21.