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[2019] ZAFSHC 143
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Terry and Another v Solfafa and Others (2263/2019) [2019] ZAFSHC 143; 2020 (1) SA 299 (FB) (29 August 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number
: 2263/2019
In
the matter between:
HORACE
TERRY
1
st
Applicant
LORRAINE
TERRY
2
nd
Applicant
and
MATLALI BERLINA
SOLFAFA
1
st
Respondent
HILLANDALE HOMEOWNERS’
ASSOCIATION
(NPC) t/a WOODLAND
HILLS WILDLIFE ESTATE
2
nd
Respondent
HEARD
ON
: 8 AUGUST 2019
JUDGMENT
BY
: LOUBSER, J
DELIVERED
ON
: 29 AUGUST 2019
[1]
In this application the Applicants seek an order directing the First
Respondent to take all the necessary steps and to sign
all the
necessary documentation in order to effect the transfer into their
names of a property they have purchased from the First
Respondent.
They also pray for a further order directing the Registrar of the
Court to do all the things necessary to effect
the transfer, in the
event of the First Respondent failing to comply with the Court order
within 7 days after date thereof.
The application is vigorously
opposed by the First Respondent. The Applicants, who are
married to each other in community
of property, do not seek any
relief against the Second Respondent.
[2]
The facts of the matter are briefly the following:
Around
22 February 2019
the
Second Applicant came across an advertisement of the First
Respondent’s residential property that was for sale for an
amount of
R 2 600 000.00
.
The Applicants immediately arranged to inspect the property, and
having done so, they decided to buy the property.
The First
Applicant therefore signed an Offer to Purchase for the amount of
R
2 600 000.00
on
27
February 2019.
It is stated on the
offer document that “
this constitutes an
Agreement of Sale upon acceptance by the Seller
”.
[3]
The First Respondent found herself in Boksburg at the time. Her
agent, Ms. Leandri Leach, who is an attorney of Leach
Attorneys in
Bloemfontein, took the offer to the First Respondent in Boksburg,
where she signed acceptance thereof on
1 March
2019
. The First Respondent, however,
contends that she called Ms Leach approximately 30 minutes after she
had signed the offer,
instructing her to withdraw the agreement and
terminating the mandate of Ms Leach at the same time. This is
denied by Ms
Leach. According to Ms Leach, the call from the
First Respondent came approximately one hour after she had signed.
She merely told Ms Leach that she was considering cancelling the
agreement. Ms Leach then advised her against such a
cancellation.
[4]
Be it as it may, it so happened that the Second Applicant only
co-signed the Offer to Purchase on
10 April
2019
at the insistence of the bank where the
Applicants went to obtain a loan for the purchase price of the
property. On the following
day,
11 April
2019
, the bank notified the Applicants in
writing that their application for a loan was approved.
Notwithstanding, the First Respondent
rejected the signed Offer to
Purchase and refused to cause the transfer of her property into the
names of the Applicants.
Hence the application this Court now
has to determine.
[5]
In the papers before me, and at the hearing of the application, the
First Respondent raised the following three defences to
the relief
sought by the Applicants: Firstly, the First Respondent
contends that no valid contract could have been concluded
because it
was only the First Applicant who signed the Offer to Purchase, whilst
the Second Applicant only signed the offer much
later, that it is
even after the First Respondent herself had signed. The First
Respondent contends that therefore, the Offer
to Purchase was not
made in terms of the provisions of the Alienation of Land Act.
Secondly, it is submitted that no valid
contract could have been
concluded because Ms Leach, the agent of the Respondent, acted in
direct breach of her instructions when
she communicated the First
Respondent’s acceptance and signature of the Offer to Purchase
to the Applicants. Thirdly,
it is contended that the Applicants
failed to comply with the suspensive conditions contained in the
written agreement, with the
result that it has lapsed and is of no
force and effect. I propose to consider each of these defences
under the following
separate headings:
[6]
No valid contract due to only one signature for the Applicants:
The
position of spouses married in community of property is clearly
regulated by relevant legislation. The
Matrimonial Property Act
88 of 1984
leaves no doubt that the joint estate of those spouses is
administered by both spouses concurrently, with the result that both
husband and wife have equal capacity to perform juristic acts and
equal powers to manage the joint estate, which powers can in most
cases be exercised without the consent of the other spouse.
[1]
Section
15(2)
of the Act defines in which events the other spouse has
to give written consent when a juristic act is performed. One
of these events is where one of the spouses, as a purchaser, enters
into a contract as defined in the
Alienation of Land Act 68 of 1981
,
and to which the provisions of that Act apply.
[2]
A contract is defined in the
Alienation of Land Act as
a deed of
alienation, where the purchase price is payable in more than two
instalments over a period of more than one year.
[3]
It is common cause that the present contract is not one of that kind,
and that written consent by the Second Applicant was therefore
not
required. The First Applicant had full capacity to bind the
joint estate by signing the Offer to Purchase without the
written
consent of the Second Applicant.
[7]
Mr Groenewald, appearing for the Applicants, referred the Court to an
article published by Mr Roelie Rossouw in the GhostDigest
of
12
February 2009
, in which article he gave the same interpretation
to the legislation referred to above. On the basis thereof, he
expressed
the view that the decision in
Govender and Another v
Maitin and Another 2008(6) SA 64 (D)
was wrong. I respectfully
agree with his views in this regard. The learned Judge in the
Govender case seems to have assumed
that in all cases of the sale of
land, the written consent of the other spouse is required, which is
not the position, as pointed
out above. For this reason, the
defence under this heading cannot succeed.
[8]
No valid contract because Ms Leach was not mandated to
communicate acceptance of the offer:
In
raising this defence the First Respondent relies on her allegation
that she called Ms Leach, her agent, some 30 minutes after
she had
signed the offer, instructing her to withdraw the agreement and
terminating the mandate of Ms Leach. On the basis
hereof, the
First Defendant contends that no agreement between her and the
Applicants came into being because the acceptance of
the offer was
not supposed to be communicated to the Applicants. In this
respect the First Respondent obviously relies on
the common law
principle that, unless the contrary is established, a contract comes
into being when the acceptance of the offer
is brought to the notice
of the offeror.
[9]
The question here is therefore whether that common law principle is
applicable. The Supreme Court of Appeal has provided
valuable
guidelines in this regard in the case of
Withok
Small Farms (Pty) Ltd v Amber Sunrise Properties 2009(2) SA 504
(SCA)
,
where the following was stated:
(a)
In each case it will be necessary to consider the terms of the offer
to determine the mode of acceptance required. (b)
Where
the offer takes the form of
a
written contract signed by the offeror, the inference will more
readily arise in the absence of any indication to the contrary
that
the mode of acceptance required is no more that the offeree’s
signature.
[4]
[10]
In its judgment the Court went on to endorse the views expressed in
Reid
v Jeffreys Bay Property Holdings (Pty) Ltd 1976(3) SA 134 (C) at 137
D-G
to the effect that it is improbable that any of the parties to a
contract would intend that the time and place of the conclusion
of
the contract would be determined not from the document itself but by
way of evidence
aliunde
.
[5]
[11]
In the present case, the offer carries the heading “Offer to
Purchase (This constitutes an Agreement of Sale upon Acceptance
by
the Seller)”.
It
is further stated in the document that the offer is irrevocable ad
that “
the Seller agrees to sell the
immovable property, together with the improvements thereon, to the
Purchaser whom purchases from the
Seller on the terms and conditions
as set out in this Agreement.”
Underneath this sentence the First Respondent signed as the Seller of
the property. In the absence of any indication
to the contrary,
the inference is therefore unavoidable that it was the expressed
intention of the parties that the mode of acceptance
would be the
signature of the First Respondent, and nothing more. The common
law principle of acceptance by notice to the
offeror, is clearly not
applicable. In the premise, I find that the question whether Ms
Leach was instructed not to communicate
the acceptance to the
Applicants, is irrelevant to the adjudication of this application.
The defence under this heading can
therefore not succeed.
[12]
The contract has lapsed because the suspensive conditions were
not fulfilled:
The
written agreement contains two suspensive conditions. The first
is that the Applicants should be able to raise a mortgage
loan for
the sum of
R 2 600 000.00
to be secured by the registration of a first mortgage over the
property in favour of a recognised financial institution or
registered
bank within thirty working days. It is further
provided in the agreement that this suspensive condition shall be
deemed to
have been fulfilled on the date upon which the financial
institution issues a written loan quotation/document to the
Applicants
for an amount equal or higher than the
R
2 600 000.00
. It is common
cause that on
11 April 2019
the Applicants were informed in writing by FNB that their application
for a mortgage loan was approved for a total amount of
R
3 900 000.00
. This date falls
within the period of 30 working days stipulated, and this suspensive
condition has therefore been fulfilled.
[13]
The second suspensive condition in the agreement requires the
successful sale of the property of the Applicants, situated at
Langenhovenpark, for an amount of
R
1 900 000.00
, or lesser amount that
may be acceptable to the Applicants, within sixty days after the date
on which the agreement was signed
by the First Respondent. It
is again common cause that the Applicants concluded a written
agreement of sale in respect of
their Langenhovenpark property on 22
April 2019 for an amount of R1.66 million. The agreement of sale was
therefore concluded within
the sixty day period. The Applicants
allege that the transfer of their Langenhovenpark property is
currently in the process
of being finalised and that the purchasers
have already taken occupation of that property on
1
July 2019
. The First Respondent, on the
other hand, contends that no “successful sale” of the
property has taken place
within the sixty days period, because
transfer has not taken place within that period. She states
that if a valid agreement
of sale had come into existence between her
and the Applicants, it had now lapsed because the sale did not become
“successful”
within sixty days.
[14]
Mr Sander, appearing for the First Respondent at the hearing of the
application, submitted that there must be registration
of transfer
before it can be said that a sale was successful. What is
significant, however, is that the Applicants allege
in their founding
papers that the purchasers of the Langenhovenpark property have duly
complied with the terms of the agreement
pertaining to that
property. In her response to this allegation, the First
Respondent states that she has not knowledge thereof,
and can
therefore neither admit nor deny same. The allegation of the
Applicants in this regard is therefore not denied.
[15]
Be that as it may, the crucial question is how the phrase “successful
sale” should be interpreted. The judgment
in
Koen
v Punyer
1984 (1) SA 344
(SECLD)
is to the
point. The facts in that case are basically the same as in the
present case, in that there appeared a suspensive condition
in a deed
of sale to the effect that the sale was subject to the successful
sale of the defendant’s property. It was held
by Solomon J, as
he then was, that the phrase in question was intended by the parties
to mean the successful signing of the deed
of sale, and not the
completion of the transaction and the payment of the purchase price.
As far as the present case is concerned,
I cannot think for a moment
that the parties had the intention that the Applicants were to find a
purchaser for the property, that
they had to sign a deed of sale
after a purchaser was found, that possible suspensive conditions in
that deed had to be fulfilled,
and that the registration of transfer
into the purchasers name, all had to take place within the limited
period of 60 days only.
[16]
I therefore find that the phrase “successful sale” in the
present agreement means nothing more than the successful
signing of a
deed of sale, as was found in the Koen case, supra. The defence
raised by the First Respondent in this regard can
therefore also not
succeed.
[17]
It follows that, in the absence of any valid defence to the
application filed by the Applicants, I make the following order:
1.
The Application
succeeds with costs to be paid by the First Respondent;
2.
Prayers 1 and 2 of
the Notice of Motion are granted.
_________________
P.J.
LOUBSER, J
For
the Applicants: Adv. W.J. Groenewald
Instructed
by: De Lange Attorneys
Bloemfontein
For
the First Respondent: Adv. A. Sander
Instructed
by: Lovius Block
Bloemfontein
[1]
Sections 14
and
15
(1) of the Act
[2]
Section 15(2)(g)
[3]
Definitions,
Section 1
[4]
At par 11 page 509 of the judgment
[5]
At par 11 page 509 of the Withok judgment