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[2008] ZASCA 5
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Van Bosch v Charles (257/2007) [2008] ZASCA 5 (7 March 2008)
REPUBLIC
OF SOUTH AFRICA
THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
NOT REPORTABLE
Case
number:
257/2007
In
the matter between:
ISAK
GERHARDUS VAN BOSCH
Appellant
and
MAURICE
ALEXANDER CHARLES
Respondent
CORAM
:
MPATI
DP, MAYA and COMBRINCK JJA
HEARD
:
15
FEBRUARY 2008
DELIVERED
:
7
MARCH 2008
Summary:
Magistrate’s
Court Practice – Civil Proceedings – Exception to plea on
ground that it discloses no defence dismissed.
Neutral
citation:
Van
Bosch v Charles (257/2007)
[2008] ZASCA 5
(7 March 2008)
____________________________________________________________________
JUDGMENT
_____________________________________________________________________
MPATI
DP:
[1]
This is an appeal against the judgment of Le Grange AJ (Hlophe JP
concurring), in the Cape Provincial Division, upholding an
appeal
against the order of the Magistrate, Strand, dismissing an exception
taken by defendant against appellant’s plea.
The Provincial
Division refused leave and the appeal comes before us with leave of
this court.
[2] On 18 April 2004
defendant (to whom I shall henceforth refer as ‘plaintiff’)
signed an offer to purchase certain
fixed property situated at
Gordons Bay, from the appellant (to whom I shall henceforth refer as
‘defendant’). The offer
was accepted by defendant on 19
April 2004. The agreed purchase price was R600 000. The agreement,
which is annexed to the particulars
of claim, was facilitated by
Seeff Properties (the agent), which was entitled, upon signature of
the offer to purchase, to a brokerage
fee calculated at 7.5% of the
purchase price, plus VAT, payable by plaintiff as seller. As was
required in terms of the agreement,
plaintiff paid a deposit of
R60 000 on 20 April 2004. (The deposit was to be paid upon
acceptance of the offer by defendant.)
The deposit was paid to the
agent, which held it in an interest-bearing trust account, the
interest to accrue to plaintiff pending
registration of transfer.
[3] It is not in dispute
that on 22 April 2004 defendant’s attorneys, Visagie Vos and
Partners, wrote a letter to plaintiff
recording that the deposit had
not been paid and that plaintiff had refused to sign the transfer
documents. Plaintiff was accordingly
given notice to pay the deposit
and to sign the transfer documents within seven days of the date of
the letter; to furnish defendant’s
attorneys with a cheque in
the amount of R41 629,20 to cover transfer costs and to supply them
with a Bank Guarantee for the balance
of the purchase price. On 3 May
2004 defendant’s attorneys dispatched a further letter to
plaintiff, the second paragraph
of which reads as follows:
‘
With
reference to our letter of demand dated 22 April 2004, addressed to
yourself, we hereby confirm that you failed to remedy some
of the
matters referred to in our letter of demand and that you are still in
breach, and therefore we hereby give you notice on
instructions of
our client, that the Deed of Sale signed by yourself on 18
th
April
2004 has been cancelled and that our client, the Seller, reserves his
rights, without prejudice, to claim damages from you
that our client
may have suffered as a result of your breach.
Yours faithfully.’
The letter was signed by
D E Roux on behalf of defendant’s attorneys.
[4]
Defendant responded by letter dated 20 May 2004 in which he admitted
to having informed a Mr Roux of defendant’s attorneys
telephonically on 21 April 2004,
1
that
he would not sign the transfer documents as he ‘believed there
was a conflict of interest’ and that he wanted his
own attorney
to attend to the transfer. It appears from plaintiff’s letter
that he telephoned Mr Roux upon receipt of the
latter’s letter
of 22 April 2004 and advised him that the deposit had been paid to
the agent on 21 April 2004 ‘as agreed’.
Plaintiff’s
letter further states that Mr Roux ‘acted precipitously and in
an adversarial manner in demanding that
[plaintiff] comply with the
contents set out in the letter of 22 April 2004 and in cancelling the
alleged contract in a letter
of the 3
rd
May
2004’. The last paragraph of plaintiff’s letter reads:
‘
It
is obvious that Mr Roux’s client has purported to repudiate the
sale and I require a full refund of the deposit, together
with
interest not later than June 2
nd
2004,
failing which I will take such action as may be necessary . . . .’
[5]
Plaintiff subsequently issued summons in the Magistrate’s
Court, Strand, against defendant (as 1
st
defendant)
and the agent (as 2
nd
defendant),
for payment of the sum of R60 000 (the deposit), together with
interest. In his particulars of claim plaintiff, having
referred to
defendant’s attorneys’ letters of 22 April 2004 and 3 May
2004, makes the following allegations:
‘
14.
The aforementioned letters by the First Defendant’s attorneys
constituted a repudiation by the First Defendant of the
agreement
between the parties in that:
Time was not of the
essence of the agreement;
The First Defendant’s
attorneys were not ready and able, or otherwise in the position to
lodge any transfer documents
with the Registrar of Deeds;
The demand of 22 April
2004 was therefore premature and did, in any event, not afford the
Plaintiff a reasonable time and opportunity
to comply therewith;
The demand of 22 April
2004 was therefore incompetent; and
The purported
cancellation of the agreement of 3 May 2004 was therefore invalid.
The Plaintiff elected to
accept the First Respondent’s repudiation and terminated the
agreement between the parties. The
election was conveyed to the
First Defendant by means of a letter from the Plaintiff to the First
Defendant’s attorneys,
dated 20 May 2004, a copy of which is
attached hereto marked “4”.’
[6] In his plea defendant
denies that the letters of 22 April 2004 and 3 May 2004 constituted a
repudiation by him of the agreement.
Paragraph 11 of his plea reads:
‘
11.
AD
PARAGRAPH 14 THEREOF:
11.1 The First Defendant
denies that the letters written by their attorneys constituted a
repudiation by the First Defendant of
the agreement between the
parties and puts Plaintiff to the proof thereof.
Save to admit that the
First Defendant’s attorneys at the time the letters referred
to in paragraphs 12 and 13 of the
Plaintiff’s Particulars of
Claim were written, not ready and able, or otherwise in the
position to lodge any transfer
documents with the Registrar of
Deeds, the remainder of the allegations contained herein are denied
and Plaintiff is put to
the proof thereof.’
[7]
The agent admits, in its plea, to holding the sum of R60 000 paid by
plaintiff as a deposit, but pleads that it is not in a
position to
determine to whom the deposit, or part thereof, should be paid and
abides the decision of the court. It alleges, however,
that in terms
of clause 14
2
of the
offer to purchase, it is entitled to commission, plus value added
tax, in the total sum of R51 300.
[8]
After defendant had delivered further particulars in response to
plaintiff’s request for such further particulars, plaintiff
excepted to defendant’s plea on the ground that it does not
disclose a defence. It would be convenient to quote the paragraphs
in
the exception relevant to this appeal:
3
‘
3.
Furthermore, and if a valid agreement of sale did indeed come into
existence on the terms as set out in Annexure “1”
to the
Particulars of Claim, the said
agreement
does not purport to fix a time when the guarantee has to be furnished
or when the demand for the guarantee can be made,
in the sense that
First Defendant is entitled to demand, and to be furnished with, the
guarantee at any time of his choice after
the agreement of sale had
been concluded, and independently of his willingness or ability at
the same time to lodge the transfer
documents with the Registrar of
Deeds.
First Defendant admits
that, at the time when the demand for the guarantee and the signing
of the transfer documents was made,
his attorneys were not ready and
able, or otherwise in a position to lodge any transfer documents
with the Registrar of Deeds.
In the premises, and in
view of the aforementioned admission, First Defendant’s denial
that the demand of 22 April 2004
was premature, incompetent and that
the purported cancellation of the agreement was invalid, is not good
in law.
WHEREFORE Plaintiff prays
for the exception to be sustained, with costs, and for judgment to be
entered in favour of Plaintiff against
First Defendant as prayed in
Plaintiff’s amended Particulars of Claim.’
[9]
Exceptions to a plea in the
magistrates’
court are dealt with under rule 19(14) of the Magistrates’
Courts Rules.
4
It is
only rule 19(14)(a) that is at issue in this appeal. In terms of rule
19(15), a court ‘shall not uphold any exception
unless it is
satisfied that plaintiff would be prejudiced in the conduct of his
case if the plea were to stand’. In dismissing
plaintiff’s
exception the magistrate relied mainly on the latter sub-rule. It has
been held, however, that the rule does
not apply in a case where the
exception taken is that the plea does not disclose a defence.
5
[10]
On
appeal to it the Cape High Court held that ‘the letter of
demand, dated 22 April 2000 by [defendant’s] attorney was
. . .
indeed premature and a request for a bank guarantee, in this
instance, could only have been for security and not for payment’.
The court accordingly concluded that defendant’s plea discloses
no defence and that the denial that the letter of demand
dated 22
April 2004 was not premature and incompetent is bad in law. It thus
upheld the exception.
[11]
A reading of its judgment reveals that the court
a
quo
,
in arriving at its conclusion that defendant’s plea discloses
no defence, only considered defendant’s attorney’s
demand
for the supply, by plaintiff, of a bank guarantee as security for
payment of the balance of the purchase price. It is true
that in the
letter of demand plaintiff was called upon to supply defendant’s
attorneys with the bank guarantee and it is
not in issue that at the
time of calling for the guarantee defendant’s attorneys were
not in a position to lodge transfer
documents.
6
Was
defendant entitled, in these circumstances, to call for a bank
guarantee when his attorneys (the conveyancers) were not ready
and
able to lodge the transfer documents?
[12]
The rule, as laid down in
Hammer
v Klein and Another,
7
is
that a seller is not entitled to demand a bank guarantee from the
buyer ‘on a date earlier than that on which he proposes
to
lodge with the Registrar of Deeds the documents required for
transfer’.
8
If
demand is made the buyer is entitled to ignore it without running the
risk of being placed
in
mora
.
And since the buyer cannot know when the seller will be ready to
lodge the transfer documents, the seller has a duty, when demanding
the bank guarantee, to inform the buyer when he proposes to lodge.
9
It
must be mentioned, however, that the rule applies only in cases where
no time has been fixed by the contract for the provision
of a bank
guarantee.
10
The
agreement in the present matter does not fix such a time.
11
[13]
In his request for further particulars to defendant’s plea
plaintiff sought the following particulars:
‘
2.
AD
PARAGRAPH 11.1 THEREOF:
First
Defendant
is
requested to clarify what is meant by the statement “you
failed to remedy
some
(our emphasis) of
the matters referred to in our letter of demand”, which
appears in the letter of the First Defendant’s
attorneys
dated 3 May 2004.
. .
. .’
Defendant
responded as follows in his reply:
‘
2.
AD
PARAGRAPH 2 THEREOF:
2.1 Save for payment of
the deposit the Plaintiff failed to sign the requested documents or
pay the outstanding costs.
2.2 . . . .’
This
response is somewhat ineptly drafted. But in the fourth paragraph of
the letter of demand (of 22 April 2004) defendant’s
attorneys
state the following:
‘
We
hereby give you 7 (seven) days’ notice after date of this
letter, to pay the deposit, to sign all the transfer documents,
to
furnish us with your cheque in the amount of R41 629,20 being
transfer costs and to supply us with a Bank Guarantee for the
balance
of the purchase price (R540 000,00), failing which the Seller will
exercise his rights in terms of Clause 16 of the said
Deed of Sale.’
Clearly,
then, the reference in defendant’s reply to plaintiff having
failed to sign the ‘requested documents’
can only mean
that plaintiff failed to sign the transfer documents. The
‘outstanding costs’ must refer to the transfer
costs. The
court
a
quo
omitted
to consider the demand for plaintiff to sign the transfer documents
and to pay the transfer costs in deciding whether or
not defendant’s
plea discloses a defence.
[14]
Plaintiff, who argued the appeal before us in person, submitted,
however, that the finding of the court
a
quo
was
not only that the demand for the supply of the guarantee was
premature, but that ‘the letter of demand’ was premature.
I cannot agree. If, by the finding that the ‘letter of demand’
was ‘indeed premature’ the court conveyed
that the demand
for plaintiff to sign the transfer documents was also premature, then
it erred. But I am not persuaded that that
is what it intended to
find and indeed found. In my view, the court
a
quo
clearly
referred only to the premature demand for the supply of the bank
guarantee, which, it has become common cause, defendant
was not
entitled to do.
[15]
Plaintiff contended further that the agreement does not prescribe
that he was required to call at defendant’s attorneys
offices
for purposes of signing the transfer documents. He was therefore not
obliged to travel to their offices. The attorneys
could easily have
dispatched the documents to his home, where he could have signed and
sent them back, so plaintiff argued. For
this reason the demand that
he should call at the attorney’s offices was incompetent and
defendant cannot rely on his refusal
to adhere to the demand as a
defence to his claim.
[16]
It is true that the agreement does not fix the place where the
transfer documents had to be signed. It merely stipulates that
transfer shall be effected by the seller’s conveyancers.
12
Much
as the agreement does not fix the place for signature, it is not
uncommon in this country for conveyancers to require a purchaser
of
fixed property to call at their offices for purposes of signing
transfer documents. There was thus nothing unreasonable in this
demand, in my view. In any event, the reason for plaintiff’s
refusal to attend at the attorney’s offices was not because
he
was not obliged to sign the transfer documents there. In his letter
of 20 May 2004 he records that he was telephoned by Mr D
Roux, who
‘was acting as solicitor’ for defendant. The letter
proceeds:
‘
.
. . Mr Roux asked me when I could come to sign the transfer
documents. I replied that I would not attend to sign any documents
as
I believed there was a conflict of interest and I wanted my own
attorney to do the transfer as I had indicated [to] the agent.
Mr
Roux then wrote me a letter dated 22
nd
April
2004 in which he alleged that I had committed a breach of the terms
of agreement in that I had not paid the deposit and refused
to sign
the transfer documents.’
In
my view, plaintiff’s argument in this court, that he was not
obliged to sign the transfer documents at the offices of defendant’s
attorneys, is clearly an afterthought. I find that defendant, through
his attorneys, was entitled to put plaintiff on terms, ie
to place
him
in
mora
,
regarding signature of the transfer documents.
[17]
Plaintiff’s further contention was that defendant has admitted,
in paragraph 11.2 of his plea,
13
that
at the time the letters of 22 April 2004 (letter of demand) and 3 May
2004 (cancellation letter) were dispatched, his attorneys
‘had
done nothing’, ie they had not commenced with preparing the
transfer documents. Defendant was thus not entitled
to demand payment
of the transfer fees, nor demand that plaintiff attend at his
attorneys’ offices for signature of the transfer
documents.
[18]
The construction of paragraph 11.2 of the plea, as suggested by
plaintiff, might well be correct. But the allegations made
by
defendant are susceptible to another interpretation, viz that
although preparation of the transfer documents had already commenced,
a stage had not as yet been reached where it could be said that the
documents were ready to be lodged. It would indeed be anomalous
if
defendant’s attorneys could demand plaintiff’s attendance
for signature of the transfer documents when those documents
that
required his signature were not ready for such signature. This matter
is in any event at exception stage and whatever ambiguity
there might
be in the pleadings may be cleared by evidence at the trial.
[19]
Plaintiff also submitted that since the agreement does not fix the
date on which the transfer fees should be paid,
14
taken
together with the fact that defendant was not ready and able, or
otherwise in a position to lodge any transfer documents,
the demand
for payment of the transfer fees was premature. Having found that
defendant was entitled to put plaintiff to terms concerning
the
signature of the transfer documents, it is not necessary to consider
the question whether or not this demand was premature.
There seems to
be nothing improper, though, in defendant demanding that transfer
fees be paid, having regard to the fact that defendant’s
attorneys had required plaintiff to call at their offices to sign the
transfer documents.
[20]
In support of his submission that the conclusion of the court
a
quo
that
defendant’s plea discloses no defence was wrong, counsel for
defendant contended that by refusing to sign the transfer
documents
and to pay the transfer costs plaintiff committed an anticipatory
breach and repudiated the contract of sale. Defendant
accepted the
repudiation. Consequently, the plea of denial that it is defendant
who repudiated the contract does disclose a defence,
so it was
argued.
[21]
Plaintiff, on the other hand, submitted that at no stage did
defendant communicate to him that he had repudiated the contract
and
that defendant had accepted such repudiation. In fact, by his letter
of demand defendant sought to enforce the contract. The
argument thus
proceeded that defendant did not accept the alleged repudiation by
plaintiff. For this proposition plaintiff relied
on the judgment of
this court in
Wilson
v Spitze.
15
I
set out the facts of that case as summarized in the headnote.
Respondent had sold to appellant a single erf, which was to be
subdivided into five erven, for R11 000,00 in terms of the deed of
sale concluded on 10 May 1982. The special conditions of the
deed of
sale provided,
inter
alia
,
that the appellant would take transfer of the first subdivided erf
upon payment of R2200,00 (appellant had to pay a deposit of
R1100,00
within seven days of the date of the sale), that the balance would be
guaranteed, against registration of transfer and
that appellant would
take transfer of the remaining equally priced erven by 1 April of
each of the following four years against
payment of R2200,00 in each
instance. After much delay, occasioned by appellant, which
necessitated action by respondent in the
magistrate’s court,
the first of the erven was transferred to him on 7 April 1983.
Respondent, through his attorney, had
already called upon appellant
on 14 March 1983 to arrange to take transfer of the second erf and
had asked for an assurance that
the purchase price would be duly
guaranteed and paid without any hassles. After yet further delay,
respondent, in a letter dated
8 April 1983, called upon appellant to
nominate the next erf to be transferred and, simultaneously, to
suitably guarantee payment
of the purchase price (of the second erf)
by 16 May 1983, failing which he would cancel the sale. Appellant did
not provide the
guarantee timeously, whereupon respondent cancelled
the contract and sold and transferred the remaining erven to a third
party.
Appellant then sued respondent in a Provincial Division for
damages, on the grounds that respondent could not validly have
cancelled
the contract because appellant had complied with all the
conditions of the sale, which contention the respondent denied.
[22] In a letter dated 23
March 1983 appellant’s attorney responded to the letter of 14
March 1983 that appellant was obliged
to take transfer of no more
than one plot per year. In a previous letter of 17 March 1983
appellant’s attorney had advised
the respondent’s
attorney that appellant did not have to take transfer of the second
property before 1 April 1984. The evidence
revealed that neither at
the time demand was made for a guarantee for payment of the purchase
price per the letter of 18 April
1983, nor on 16 May 1983 was
respondent in any position to take immediate steps to give transfer
of the second plot.
[23]
Respondent’s counsel’s argument in that case was that
appellant’s attitude, as evinced in the letters of
17 and 23
March 1983 amounted to a repudiation. This court
16
reasoned
as follows:
‘
I
do
not
think that the attitude displayed in these two letters amounted to a
repudiation of the contract, but, assuming that it did,
the
repudiation was not accepted by the defendant who elected to abide by
the contract and claimed performance in [his attorney’s]
letters of 8 April 1983 and 2 May 1983, thereby keeping the contract
alive.’
17
[24]
I do not think it is necessary for me to get into a lengthy debate on
this issue. Suffice it to say that ‘[t]he
enquiry
is not whether [defendant] has “accepted” the repudiation
but whether he has elected to keep the contract in
being or to cancel
it’.
18
Unlike
respondent in
Wilson
v Spitze,
19
who,
after the letter of 8 April 1983 in which cancellation was threatened
if the breach was not remedied, clearly sought to enforce
the
contract after appellant had indicated a wish to proceed with the
transaction, defendant in the present matter cancelled the
agreement.
He notified plaintiff of his election by way of the letter of 3 May
2004, where it is clearly stated that ‘the
Deed of Sale signed
by yourself on 18 April 2004 has been cancelled . . .’.
[25]
The letter of demand, dated 22 April 2004, was in compliance with
clause 16.1 of the agreement, which provides:
‘
16.
BREACH
16.1 Should either party
commit a breach of any of the terms of this Agreement and fail to
remedy same within seven (7) days of
being called upon, in writing,
to do so the aggrieved party shall be entitled without prejudice to
his/her rights, to claim any
damages that he/she may have suffered as
a result of such breach:-
16.1.1. to cancel the
Agreement by written notice to the defaulting party; or
16.1.2.
to claim specific performance by the defaulting party of his/her
obligations in terms of this Agreement.’
Clause
16.1 thus created a contractual ground for cancellation, to which
defendant was in any event not bound if plaintiff’s
refusal to
sign the transfer documents amounted to a repudiation of the
contract. He had the option to insist on performance of
the contract
or to accept the repudiation and cancel it.
20
The
fact that he allowed plaintiff an opportunity to perform in terms of
the contract (to sign the transfer documents) did not mean
that he
was not entitled to change his mind, upon plaintiff’s
persistence in refusing to sign the transfer documents, and
to notify
plaintiff that the contract was now regarded as having been
cancelled.
21
I
mention this merely in answer to plaintiff’s submission that
defendant did not accept the alleged repudiation but sought
to
enforce the contract.
[26]
In my view, defendant’s plea, read together with the letter of
demand of 22 April 2004 and the cancellation letter of
3 May 2004,
both of which are annexed to the particulars of claim, does disclose
a defence. It follows that the appeal must succeed.
The following order is
made:
(1)
The appeal is allowed with costs.
(2)
The order of the court
a
quo
is
set aside and for it is substituted the following:
‘
The
appeal is dismissed with costs.’
L MPATI DP
CONCUR:
MAYA JA
COMBRINCK JA
1
The
letter of 22 April 2004 followed upon this telephone conversation
between plaintiff and defendant’s
attorney, Mr Roux.
2
Clause
14.1 and 14.2 stipulate as follows:
‘
14.
BROKERAGE
14.1 Brokerage calculated at 7.5% of the purchase price plus VAT
shall be due by the Seller to Seeff upon signature hereof or
if
there are any suspensive conditions once the suspensive conditions
have been fulfilled.
14.2 Seeff’s entitlement to such commission is unconditional
once due and shall be payable upon Transfer of the Property
or where
this Agreement is breached by the Purchaser or the Seller,
immediately upon such breach. The Seller undertakes to pay
the
brokerage and hereby irrevocably authorises Seeff, on Transfer to
deduct the brokerage plus VAT thereon from any amount it
may be
holding in trust in terms of Clause 3.1 hereof, or if there is no
such amount held or if the proceeds thereof are insufficient
to meet
the full brokerage plus VAT then the seller hereby irrevocably
instructs the Conveyancers to pay the amount, or the balance
of the
amount due as the case may be, to Seeff as a first draw against the
proceeds of the sale.’
3
Paragraphs
1 and 2 of the exception were not in issue before this court and are
thus not recorded here.
4
The
sub-rule provides:
‘
(14) A plaintiff may except to the plea on
the ground either –
that it does not disclose a defence to the plaintiff’s claim;
or
that it is vague and embarrassing; or
that it does not comply with the requirements of this rule.’
5
See
Warren v Pirie (Pty) Ltd
1959 (1) SA 419
(E) at 424E-G, where
the court dealt with rule 22(14)(a), the predecessor to the present
rule 19(15). See too Jones & Buckle
The Civil Practice of
Magistrates’ Courts in South Africa
9 ed, Vol 11 by
Erasmus and Van Loggerenberg, Rule 19-48, where the authors state
that ‘where an exception goes to the
very root of the plea,
and demonstrates a complete absence of a legal defence, the plea
cannot be allowed to stand’.
6
See
para 11.2 of the plea in para 6 of this judgment.
7
1951
(2) SA 101
(A).
8
At
106 A. See also
Linton v Corser
1952 (3) SA 685
(A) at 694A-E
and
Wilson v Spitze
1989 (3) SA 136
(A) at 143I-144C.
9
Hammer
v Klein and Another,
supra, at 106B-C.
10
Ibid,
at 107F.
11
Clause
4 of the agreement provides that the purchaser ‘shall, within
seven (7) days of being requested in writing
by the Conveyancers to do so, furnish them with a bank guaranteed
cheque, or a guarantee/s from a financial institution/s or
other
guarantee acceptable to the Seller for payment upon Transfer of the
said purchase price or balance and any brokerage for
which the
Purchaser has assumed liability.’
12
Clause
5 of the agreement reads:
TRANSFER
‘
Transfer shall be effected by the
Conveyancers:
. . .
5.3 as close to 31.7.2004 as possible.’
It is indicated in Clause 3.1 that ‘the Sellers Conveyancers’
will be referred to onwards as ‘the Conveyancers’.
13
Quoted
in para 6 of this judgment.
14
Clause
6 of the agreement reads:
‘
TRANSFER COSTS:
All costs of Transfer, including, but not limited to, transfer duty
if applicable, and the costs of registering any mortgage
bond which
may be required, as well as survey and diagram fees if applicable
and any VAT payable on such costs, shall be paid
by the Purchaser.
The Purchaser shall on demand by the Conveyancers, pay to the
Conveyancers such costs as are called for by
the Conveyancers from
time to time.’
15
Above,
footnote 8.
16
Per
Vivier JA, Hoexter, Botha, Grosskopf and Eksteen JJA concurring.
17
At
147A.
18
Kerr
The Principles of the Law of Contract
6 ed, at 589, quoted
with approval in
Metalil (Pty) Ltd v AECI Explosives and
Chemicals Ltd
[1994] ZASCA 96
;
1994 (3) SA 673
(A) at 687 B-C.
19
Above,
footnote 8.
20
Metalil
,
above, note 17 at 683 G-H.
21
See
the minority judgment of Nicholas AJA in
Culverwell and Another v
Brown
1990 (1) SA 7
(A) at 17 E- F. The majority did not take
issue with the statement.