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[2019] ZAFSHC 133
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Taljaard v Barnard and Another (1050/2019) [2019] ZAFSHC 133 (25 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 1050/2019
In
the matter between:
STEPHANUS
ARNODUS
TALJAARD
Applicant
and
RHODA
BARNARD
1
st
Respondent
ANY
UNKNOWN OCCUPIERS OF THE PRIVATE
PUB
SITUATED AT 23 WHATKEY STREET,
BFN
2
nd
Respondent
CORAM:
MOROBANE, AJ
JUDGMENT
BY:
MOROBANE,
AJ
HEARD
ON:
06
JUNE 2019
DELIVERED
ON:
25
JULY 2019
[1]
This is an application by which the
applicant seeks an order confirming the cancellation of the agreement
and the return of business
assets. While the first respondent opposed
the application, nothing was filed on behalf of the second
respondent.
[2]
The First Respondent raised two
preliminary points. The first point relates to the applicant's lack
of
locus standi
to
seek an eviction order against her. She submitted that the applicant
was not the owner of the property thus not entitled to such
order.
This point was conceded by the applicant and he accordingly amended
his notice of motion to exclude his request for an eviction
order.
[3]
The second point
in
limine
pertains to the applicant's
lack of
locus standi
to
request an order for the re-transfer of the liquor licence ("the
licence") to his name. The First Respondent submitted
that the
applicant was not the owner of the licence and that he was not
entitled to a re-transfer. She further submitted that Private
Pub was
never issued with a licence due to the applicant's failure to adhere
to the agreement.
[4]
Mr J Venter, who was the owner, sold the
licence to the applicant. The agreement recorded that the applicant
was in the process
of registering the licence in his name. He would
also pay all the costs for the transfer of the licence. Consequently,
the licence
was directly transferred from Mr J Venter of Laduma to
the first respondent of Private Pub. The applicant consented to the
direct
transfer of the licence to the first respondent. On this basis
alone, the applicant is entitled to request an order for the transfer
of the licence in his name. It was the agreement between the
applicant and Mr Venter that caused the direct transfer of the
licence
to the first respondent. There was no other way in which the
first respondent could have acquired ownership of the licence. The
preliminary point raised is without merit and is hereby dismissed.
[5]
The facts of this case are as follows.
On 10 April 2018 at Bloemfontein, the parties concluded a sale
agreement (the "agreement")
in terms of which the applicant
sold his business together with stock to the first respondent. The
parties agreed to a purchase
price of R280 000.00, payable as
follows: A once off payment of R100 000.00; payment of arrear rentals
as at date of signing the
agreement; and the payment of monthly
instalments of R11 000.00 until the balance was paid in full. It was
also agreed that in
the event of a breach of contract by the first
respondent, the applicant would keep payments already made and to
repossess the
stock owned by the business as at effective date. After
the first respondent had failed to pay, an addendum to the agreement
was
concluded. The first respondent did not pay and fell into
arrears. She was called upon to rectify her breach, but she remained
in arrears. On 20 February 2019 the applicant elected to cancel the
agreement and instituted the current proceedings.
[6]
Indeed
the agreement was cancelled by the applicant. In that respect, in
C/oete
Murray v FirstRand Bank Ltd
[1]
the
court said that the term 'cancellation' connotes the termination of
obligations between parties to an agreement. It is a unilateral
act
of a party to an agreement and, except for giving the other party
notice of such cancellation, it does not occur in or by means
of any
process associated with any form of forum.
[7]
The applicant alleged that he is
entitled to apply for the restoration of her possession of the
business. He stated that, due to
the first respondent's failure to
pay the amounts due, he delivered a written notice to her chosen
address calling upon her to
rectify her breach. Thereafter, the first
respondent failed to bring her payments up to date and the agreement
was formally cancelled
on 20 February 2019. The agreement was
effectively cancelled when the notice was delivered to the first
respondent.
[8]
In her opposition, the first respondent
alleged that she paid an amount of R17 336.00 to the applicant's
attorneys for arrear rentals.
A further amount of R20 500.00 was paid
to the applicant. In addition, she alleged that the applicant was in
material breach as
he never transferred the licence to her name. In
November 2018 she stopped paying the applicant as she could not sell
liquor without
a licence. She alleged that a licence from Mr J Venter
of Laduma was transferred to her name.
[9]
On the contrary, the first respondent
did not follow the stipulations of the agreement to bring the alleged
material breach to the
applicant's attention. She did not send a
written notice by a prepaid registered post nor was such notice
delivered by hand. She
chose to communicate with the applicant's
attorneys via the "whatsapp" media. On 20 February 2019
first respondent was
given a proper notice of cancellation of the
agreement. She failed to advance facts to dispute the applicant's
claim against her.
[10]
In
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
[2]
the
court observed that a bare denial of the applicant's material
averments cannot be regarded as sufficient to defeat the applicant's
right to secure relief in appropriate cases. Upon considering the
affidavit of the first respondent, her denials are bare and merely
intended to delay the inevitable. It then follows that the agreement
between the parties has been cancelled and the applicant is
entitled
to the relief sought in terms of the amended notice of motion.
[11]
The following order is made:
1.
Cancellation of the sale agreement and
the addendum thereto is hereby confirmed;
2.
The First Respondent to deliver all
documentation and accounting books pertaining to the business known
as Private Pub, situated
at 23 Watkey street, Bloemfontein to the
Applicant.
3.
The First Respondent to deliver all
assets set out m annexure "A" hereto to the Applicant.
4.
The First Respondent to take necessary
steps to facilitate the transfer of the liquor licence issued in
respect of the property
situated erf 1413, Watkey street 23,
Bloemfontein, Free State Province to the Applicant within 30 days
from date of service of
this order.
5.
In the event of the First Respondent
failing and/or refusing to abide by the orders referred to in paras 2
and 3 above, the Sheriff
of the High Court is authorised to take
possession of all documentation and accounting books pertaining to
the business, and all
assets set out in annexure "A"
hereto.
6.
Should the First Respondent fail and/or
refuse to abide by the order referred to in para 4 above, the
Registrar of this Court is
authorised to sign all such documentation
required for the transfer.
7.
The First Respondent to pay the costs on
party and party scale.
________________
V.M.
MOROBANE, AJ
On
behalf of the applicant: Adv. R van der Merwe
Instructed
by:
Van
Wyk & Preller Inc.
BLOEMFONTEIN
On
behalf of the 1
st
respondent: In person
[1]
Cloete Murray & Another NNO v FirstRand Bank Ltd
2015 (3) SA 438
(SCA) at 446B-E
[2]
Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA
1155
(T) at 1165