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[2019] ZAWCHC 46
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Agu v Krige and Others (20763/2017) [2019] ZAWCHC 46 (28 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: 20763/2017
In
the matter between
PHILOMENA
CHICHI
AGU
Applicant
and
GIDEON
JOHANNES
KRIGE
First
Respondent
RONEL
SWART
Second
Respondent
SA
HOME LOANS (PTY)
LTD
Third
Respondent
BLUE
SHEILD INVESTMENTS 01 (RF)
LIMITED
Fourth
Respondent
REGISTRAR
OF DEEDS, CAPE
TOWN
Fifth
Respondent
JUDGEMENT DELIVERED ON
28 MARCH 2019
FRANCIS,
AJ
INTRODUCTION
1.
This is an application by Philomena Chichi Agu (“the
Applicant”) for an order that Gideon Johannes Krige (“the
First Respondent”) transfer the property purchased from him by
the Applicant in terms of a Deed of Sale, and for certain
ancillary
relief.
2.
The purchase price was paid by the Applicant to the First
Respondent’s nominated conveyancer, Ronel Swart (“the
Second Respondent”), who misappropriated the money paid to her
by the Applicant.
3.
SA Home Loans (Pty) Ltd (“the Third Respondent”), Blue
Shield Investments 01 (RF) Limited (“the Fourth Respondent”),
and the Registrar of Deeds, Cape Town (“the Fifth Respondent”)
were cited because of their interest in this application,
but no
relief was sought against any of them. The Fourth Respondent holds a
mortgage bond in its favour over the property whilst
the Third
Respondent is cited because of the Fourth Respondent’s
affiliation to it. Both the Fourth and Fifth Respondent
did not
participate in these proceedings on the understanding that their
interests will be protected whatever the outcome of this
judgement.
BACKGROUND
4.
The following relevant facts were either common cause or were not
seriously disputed by the parties:
4.1 The Applicant and the
First Respondent entered into a Deed of Sale on 31 July 2017, the
material, relevant terms of which are
as follows:
4.1.1
The Applicant purchased the following sectional title unit situated
at 1 Ringwood Drive, Parklands, Western Cape, held under
Deed of
Transfer no. ST6980/2009 (“the property”):
(a)
Section No
13 as shown and more fully described on Sectional Plan No. SS
224/2000 in the scheme known as Maple Grove, in respect
of the land
and building or buildings situate at Parklands, in the City of Cape
Town, Division Cape, province of the Western Cape,
of which section
the floor area, according to the said sectional plan is 62 (sixty
two) square meters in extent; and
(b)
An
undivided share in the common property in the scheme apportioned to
the said section in accordance with the participation quota
as
endorsed on the said sectional plan.
4.1.2
The purchase price for the property was R720 000 which, in terms
of clause 1.1 of the Deed of Sale, was payable as follows:
“
A cash deposit
of R720, 000,00 (Seven Hundred and Twenty Thousand Rand) payable
within 3 (three) days of acceptance hereof to be
held by the
Conveyancers in trust in an interest-bearing account in terms of
Section 78(2A) of the Attorneys Act, 1979, interest
to accrue for the
benefit of the Purchaser pending registration of transfer when the
capital shall be paid to the Seller and the
interest to the
Purchaser.”
4.1.3
The property was subject to a valid lease agreement and it was agreed
that the Applicant would not take possession and vacant
occupation of
the property on the date of registration of transfer, although all
the risks and benefits of ownership would pass
to the Applicant on
the date of registration of transfer (clause 2 of the Deed of Sale).
4.1.4
Clause 4 of the Deed of Sale deals with the transfer of the property
and states as follows:
“
Transfer
shall be effected on or by 01/10/2017 by the Seller’s Attorneys
at the Purchaser’s expense namely: RONEL SWART
ATTORNEYS, 6
VILLAGE CENTRE, CORAL ROAD, BETTY’S BAY, 7141; TEL. 028 –
272 9151, EMAIL:
ronel@ronelswartattorneys.co.za
.
The Purchaser shall be responsible for all the normal transfer fees
which shall be payable immediately upon request by the Conveyancers.”
4.1.5
Estate agent’s commission was payable and was deemed to be
earned on conclusion of the sale. In this regard, clause
5.2 of the
Deed of Sale states as follows: “
the
Seller by their signature hereto irrevocably authorizes and instructs
the Conveyancers to pay the estate agent its commission
in terms
hereof, upon registration of transfe
r”.
4.1.6
All compliance certificates were to be supplied at the First
Respondent’s expense. These certificates include an electrical
compliance certificate, an entomology certificate, a gas compliance
certificate, a plumbing compliance certificate, and an electrical
fence compliance certificate (clause 9 of the deed of sale).
4.2 On 31 July 2017, the
Second Respondent sent an e-mail to the Applicant and advised her
that the Second Respondent’s firm
had received instructions to
attend to the transfer of the property and reminded the Applicant
that the purchase price of R720 000
was payable into her trust
account, the details of which she provided to the Applicant.
4.3 The Applicant duly
paid the R720 000 into the nominated bank account as well as an
amount of R16 700 towards the “normal
transfer fees”
as contemplated by clause 4 of the Deed of Sale. After a period of
time, and after some interaction between
the Applicant, the First
Respondent, and the Second Respondent and/or their legal
representatives, it transpired that the Second
Respondent had
misappropriated the monies paid to her by the Applicant.
4.4 The Applicant
furnished a letter of demand on the First Respondent to effect
transfer of the property, tendering performance
of her remaining
obligations, specifically the payment of the remainder of the
transfer fees relating to transfer duty and the
like; these payments
were, of course, not due to the First Respondent but were payable to
other third parties.
4.5 The First Respondent
denied liability, although it did lodge a claim with the Attorneys
Fidelity Fund; the latter advised the
First Respondent that it could
not entertain the claim because, in the Fund’s view, it was in
fact the Applicant that had
suffered the loss. The First Respondent
communicated the Fund’s view to the Applicant who, on the
advice of her attorneys,
disputed the correctness of the advice
proffered by the Fund and persisted with her demand that the First
Respondent comply with
his obligation to transfer the property to
her.
ISSUE
FOR DETERMINATION
5.
The main issue for determination is whether payment made by the
Applicant to the Second Respondent constitutes payment by the
Applicant to the First Respondent. Put differently, if the Second
Respondent was not the First Respondent’s agent for the
purpose
of receiving payment from the Applicant, the Applicant’s claim
that she had discharged her obligations by paying
the Second
Respondent the full purchase price, cannot succeed.
SUBMISSIONS
OF THE PARTIES:
6.
Both Mr LA Rose-Innes SC (assisted by Mr GGM Quixley), for the
Applicant, and Mr D van der Merwe, for the First Respondent, filed
comprehensive heads of argument, referencing the leading cases on the
issue in dispute. I found their exposition of the legal principles
garnered from the case-law very helpful. I will, for the purposes of
this decision, only make reference to those cases which I
consider
relevant to my decision.
Applicant’s
Submissions
7.
According to the Applicant, her obligation under the Deed of Sale was
to pay the full purchase price to the First Respondent’s
nominated conveyancer.
8.
The Second Respondent was nominated by the First Respondent as his
attorney and agent to receive payment of the purchase price.
9.
The Applicant paid the full purchase price timeously to the Second
Respondent and, by making payment to the Second Respondent,
the
Applicant, in effect, paid the purchase price to the First
Respondent. Nothing further is required from her and she is entitled
to receive transfer of the property.
10.
In arguing the case on behalf of the Applicant, Mr Rose-Innes relied
principally on the then Appellate Division’s decision
in
Baker
v Probert
1985 (3) SA 429
(AD)
.
In casu
,
the Court held that the estate agent nominated by the seller had
received payment of the purchase price on the seller’s
behalf.
In reaching this decision, the Appellate Division had to interpret
clause 3 of the sale agreement which dealt with the
manner in which
the purchase price was to be paid. The clause provided that “
all
payments
made in terms of this paragraph shall be made to the agents to be
held by them in trust for payment to the sellers on the
effective
date provided that the sellers have complied with the provision of
paragraph 5 hereof,”
(
Baker
v Probert
supra
at 437D) – clause 5 dealt with the sellers’ obligation to
deliver the share block certificates to the agent. The Court
stated
that clause 3 of the contract explicitly required payment under the
contract to be made to the agent and it was clearly
implicit that the
agent was authorised by the seller to receive the purchase price.
Were it not so, the purchaser would have been
obliged to pay the
purchase price directly to the seller. Mr Rose-Innes stated that the
same consideration applied in the present
case; the Deed of Sale
required the Applicant to make payment of the purchase price by way
of a deposit to the Second Respondent
and did not require the
Applicant to pay the purchase price to the First Respondent. Thus, he
submitted, payment to the Second
Respondent was equated with payment
to the First Respondent and operated as a complete discharge of the
Applicant’s obligations
under the contract. As in the
Baker
v Probert
case,
once the Applicant had paid the purchase price to the Second
Respondent, she had no further obligations under the contract.
11.
Mr Rose Innes SC also made reference to
Verbeek v Maher
1978
(1) SA 61
(N)
, a decision of a full bench of the then Natal
Provincial Division, the facts of which are similar to the present
case. In the
Verbeek
case, the sale agreement provided
for a deposit to be paid to the agent, which the purchaser did. The
agent was subsequently wound
up and did not pay a portion of the
deposit to the seller. As in the present case, the purchaser sought
to compel the seller to
effect transfer, which the seller resisted.
The court found in favour of the purchaser, concluding that the
purchaser had complied
with his obligation to pay the deposit and
ordered the seller to pass transfer. The court found that the
contract stipulated the
manner in which the deposit was to be paid,
namely by payment to the agent, and that the purchaser had done so,
thus discharging
his obligation. In reaching its decision, the court
did not determine the matter on the basis of agency but instead
regarded the
crux of the matter to be whether the relevant payment
portion of the sale agreement “
merely provides for a mode of
ensuring that payment will be made or a mode of actual payment. If
the former had been intended, then
it would have been easy for the
parties to have stipulated that the price was to be payable in cash
against the transfer, such
price to be secured in the meanwhile by
payment of a deposit
”
(
Verbeek
supra
at 68 F-G). Mr Rose- Innes submitted that on the authority of the
Verbeek
decision, the Deed of Sale in the present
matter provides for a “mode of actual payment” and that
once the Applicant
made payment, she had discharged her obligations
under the Deed of Sale, and the First Respondent, accordingly, had
the reciprocal
obligation to pass transfer.
First
Respondent’s Submissions
12.
The First Respondent does not dispute that the Applicant paid the
purchase price for the property to the Second Respondent who
was
nominated as the conveyancer to effect the transfer.
13.
The gist of the First Respondent’s case, however, is that
despite the Applicant paying the purchase price to the Second
Respondent, the Applicant has not satisfied her obligation under the
Deed of Sale to pay the purchase price since this obligation
will
only be satisfied once the First Respondent himself receives payment.
14.
The underlying contention of the First Respondent is that payment to
the Second Respondent did not amount to payment to him.
The parties
had agreed in terms of clause 4 of the Deed of Sale that the money
paid by the Applicant would be placed in an interest-bearing
account
for the benefit of the Applicant and would only be paid to the First
Respondent on registration of transfer. Accordingly,
the money was
being held by the Second Respondent on behalf of the Applicant. Since
transfer had not yet taken place, the First
Respondent had not
received payment and, therefore, the Applicant had not complied with
her obligation. Thus, there was no obligation
on the First Respondent
to ensure that the property was transferred to the Applicant until
payment was actually received by the
former.
15.
Mr van der Merwe submitted on behalf of the First Respondent that a
proper and correct interpretation of the clause relating
to the
payment of the purchase price (clause 4) indicates that payment to
the Second Respondent did not constitute payment to the
First
Respondent. This clause simply constitutes a method of payment
whereby the purchase price was secured in order to ensure
that
payment and delivery, being the registration of the transfer of
ownership of the property, took place
pari passu
(see
Breytenbach v Van Wijk
1923 AD 541
, and
Wehr v
Botha NO
1965 (3) SA 46
(A)
). The Second Respondent was, in
effect, a conduit for payment to the First Respondent but was not an
agent of the First Respondent
to receive payment on the latter’s
behalf. Indeed, if anything, according to Mr van der Merwe, the
Second Respondent acted
as agent for both parties (see,
Basson
v Remini and Another
1992 (2) SA 322
(N)
). The purchase price
was being held on behalf of the Applicant as a “deposit”
pending transfer. Payment would only
be made to the First Respondent
on transfer whilst the interest accrued would be paid to the
Applicant on transfer (cf.
Minister of Agriculture & Land
Affairs and Another v De Klerk and Others
2014 (1) SA 212
(SCA)
).
EVALUATION
OF LEGAL PRINCIPLES
16.
The issue of whether a conveyancing attorney entrusted to hold a
portion or the whole of the purchase price until registration
of
transfer, receives the money as the agent of the seller, or of the
purchaser, or of both, or as trustee for both to await the
event, is
a somewhat vexed question (see the comments of the Supreme Court of
Appeal in
Royal
Anthem Investments 129 (Pty) Ltd v Lau and Another
[2014] ZASCA 19
at
para 17
,
and the conflicting judgements in the
Minister
of Agriculture and Land Affairs and Another v De Klerk and Others
supra
).
17.
What is apparent from the decided cases, however, is that each case
must be considered in the light of its own facts and the
particular
contractual terms under which the conveyancer received payment.
18.
In the matter at hand, it is apparent from the sale agreement that
the Second Respondent was appointed as conveyancer by the
First
Respondent. This much was accepted by the First Respondent.
If the conveyancer was appointed as the agent to
receive payment,
then payment to the conveyancer is equivalent to payment to the
Seller (see,
Baker
v Probert
supra
at 438 G-H). Similarly, the obligation to make payment is discharged
if made to a person recognised by law as competent to receive
payment
in discharge of the obligation (
Harrismith
Board of Executors v Odendaal
1923 AD 530)
.
Whether or not the Second Respondent was appointed as agent thus
depends on the terms of the Deed of Sale read in context and having
regard to the purpose of the relevant provisions of the Deed of Sale
and the background, preparation and production of the document
(see,
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) at 604C)
.
19.
Clause 1 read with clause 4 of the Deed of Sale records that the
conveyancing shall be effected by the First Respondent’s
attorneys namely, the Second Respondent. The Applicant never
appointed the conveyancer. Indeed, as part of her reply, the
Applicant
filed an affidavit by Nhlonipho Tankwa, who described
himself as the “active agent” dealing with the Applicant
and
the First Respondent in matters pertaining to the sale of the
property. Mr Tankwa states that when negotiating the
transaction,
the Applicant wished to use her own attorneys but the
First Respondent was vehemently insistent on using the Second
Respondent
as his transferring attorney, indicating that he had
dealings with her for the previous 5 years. Although counsel for the
First
Respondent objected to this “new” evidence being
raised in reply, I am prepared to admit this evidence. The First
Respondent
pertinently raised the issue relating to the appointment
of the conveyancer in his answering affidavit. The First
Respondent
stated that the Applicant had agreed to the nomination of
the conveyancer and had she proposed a different conveyancer to deal
with the transaction, he would have considered this. Quite clearly,
in my view, the Applicant, given her case, was obliged to respond
to
this averment. The First Respondent certainly did not indicate what
prejudice, if any, he had suffered due to the Applicant’s
response (see,
Passenger
Rail Agency of South Africa v Swifambo Rail Agency (Pty) Ltd [2017]
ZAGPJHC 177 at para 15
).
In any event, the Applicant’s response is consistent with the
undisputed, and admitted, fact that the First Respondent
appointed
the Second Respondent as his conveyancer and that the Second
Respondent was his attorney as well.
20.
It does not necessarily mean, however, that because the First
Respondent appointed the Second Respondent as conveyancer that
the
latter was the First Respondent’s agent for receiving payment
of the purchase price (see,
Minister of Agriculture and Land
Affairs and Another v De Klerk and Others supra at218 E-F
).
In considering whether the Second Respondent was the agent for the
First Respondent for receiving payment of the purchase price,
it is
important at the outset to bear in mind what the expression “agent”
means in the present context. In
Baker v Probert
supra
at 439 D-G
, Botha JA described the meaning of “agency”
within this context as follows:
“
It means no
more than the person authorised by the defendant to accept payment of
the purchase price by the plaintiff. It connotes
a mandate by which
the seller confers authority on the agent (his mandatory) to
represent him in the acceptance of the payment
of the purchase price,
with the consequence, in law, that payment to the agent is equivalent
to payment to the seller.
”
The
court in
Baker
v Probert
then analysed the relevant provisions of the contract entered into
between the parties, which is similar to the facts of the matter
at
hand, and concluded as follows:
“
In clause 3
it is expressly stipulated that all payments made in terms of it
(including, on the facts here, the payment of the full
purchase
price) shall be made to the “agents”, being York Estate.
It is clearly implicit that York Estate is authorised
by the
defendant to receive the purchase price, for, were it not so, the
purchaser would have been obliged to pay it to the defendant.
York
Estate, when it received the payment with knowledge of the provisions
of clause 3, prima facie accepted the mandate from the
defendant to
do so as the agent of the defendant, to whom it was obliged to pay
over the money when he had complied with his own
obligation to
deliver the share certificates in terms of clause 5. Moreover, the
parties clearly intended that payment by the plaintiff
to York Estate
would operate as a complete discharge of her obligation under the
contract, thus equating payment to York Estate
with payment to the
Defendant. If, instead of cancelling the contract, the Plaintiff had
claimed delivery of the share certificates
from the defendant, the
latter would have had no answer to the claim
”
(
Baker
v Probert
supra
439
F-I).
21.
By parity of reasoning, clause 1 read with clause 4 of the Deed of
Sale expressly stipulates that all payments made in terms
of the Deed
of Sale would be paid to the First Respondent’s attorneys
as the conveyancer for the transaction; this
can only mean that the
Second Respondent was the First Respondent’s agent for the
purpose of receiving payment and, moreover,
that payment to the First
Respondent would operate as a complete discharge of the Applicant’s
obligations under the contract.
Payment to the Second Respondent
equates to payment to the First Respondent. It must be remembered
that the appointment of a conveyancer
is no trifling matter. The
conveyancer plays a pivotal role in any property transaction
involving the conveyance of immovable property
from one person to
another (see,
Margalit
v Standard Bank of South Africa Ltd and Another
[2012] ZASCA 208
at
para 25
).
The appointment of a conveyancer is as much a term of the agreement
of sale, requiring negotiation and agreement between the
parties, as
are other material terms such as, for example, the payment of estate
agents’ commission and the payments of transfer
costs (cf.
Meyer
v Kirner
1974 (4) SA 90
(N) at 100G-H and 101E-F
).
The conveyancer not only attends to the formal transfer of real
rights in terms of the
Deeds Registries Act 47 of 1937
but is also
responsible for all the financial aspects of the transfer. In the
present matter, the conveyancer was more than a mere
holder of the
purchase price pending transfer. The Second Respondent was the First
respondent’s attorney of longstanding
and was entrusted with
the responsibility to disburse payments from the purchase price on
behalf of the First Respondent as at
the date of transfer, including
the payment of estate agent’s commission.
22.
Counsel for the First Respondent submitted that because clause 1.1 of
the Deed of Sale stipulated that the purchase price would
be held in
trust in an interest-bearing account and that the interest earned
would be paid to the Applicant on registration of
transfer, the
Second Respondent was holding the amount paid by the Applicant on
behalf of the latter. However, as Mr Rose-Innes
submitted, clause 1.1
of the Deed of Sale does not stipulate on whose behalf the funds
would be held and the fact that interest
will accrue for the benefit
of the Applicant did not necessarily mean that the funds were being
held in trust for the Applicant.
The interest provision simply
catered for the commercial reality that the Applicant was required to
pay the purchase price within
3 (three) days of acceptance of the
offer but the Applicant would only obtain title to the property at
some later date. In
Stopforth
Swanepoel & Brewis Incorporated v Royal Anthem Investments 129
(Pty) Ltd and Others
[2014] ZACC 39
,
the
Constitutional Court was called upon to consider whether payment to
the conveyancing attorney, appointed by the seller, during
the course
of an abortive conveyancing transaction should be regarded as payment
to the seller. The clause in question in
the sale agreement,
which is of similar import to clause 1 read with clause 4 of the Deed
of Sale, reads as follows:
“
Cash: …
[payable…after acceptance hereof which amount is to be
deposited at the Conveyancing Attorneys. The amount
will be invested
in accordance with [s]ection 78 (2A) of the Attorneys Act No 53 of
1979, … pending the registration of
transfer of the property
in the name of the [purchasers]. The deposit and any other amounts
will be paid over to the [attorneys]
on date of registration of the
property in the name of the [purchasers]. Interest earned will be for
the benefit of the [purchasers
].”
(quoted in fn. 3 in
Stopforth
Swanepoel & Brewis Incorporated v Royal Anthem Investments 129
(Pty) Ltd and Others supra).
`
The Constitutional Court interpreted the aforegoing clause to mean
that payment into the attorney’s account ought to be
regarded
as payment to the seller (
Stopforth
Swanepoel & Brewis Incorporated v Royal Anthem Investments 129
(Pty) Ltd and Others supra at para 30).
23.
Counsel for the First Respondent also sought to rely on
Basson
v Remini
where, on the facts of that case, the Court held
that the conveyancer acted as agent for both parties. In my view,
Basson v Remini
is not authority for the proposition
that a conveyancer
must
act for both parties but merely that a
conveyancer, depending on the circumstances,
may
act for both
parties. The mere fact that a conveyancer is nominated by one of the
parties does not mean that the conveyancer acts
exclusively as agent
for that party. As in the matter at hand, the Second Respondent acted
as agent for the First Respondent in
terms of the receipt of payment
of the purchase price and, simultaneously, acted as agent for the
Applicant when it came to the
investment of the purchase price
pending the registration of transfer. The Applicant would certainly
have a claim against the Second
Respondent if the latter did not
account for any interest that may have been earned on the said monies
at the registration of transfer.
24.
On a conspectus of the evidence before me, the Applicant complied
with her obligation in terms of the deed of sale by making
payment of
the purchase price to the Second Respondent who was nominated by the
First Respondent to receive payment of the purchase
price on the
latter’s behalf. In addition, the Deed of Sale provided for the
mode of actual payment of the purchase price
and once this was done,
the Applicant had discharged her obligations. She did what was
required contractually in respect
of the purchase price and had no
control of the process thereafter. The Applicant, of course, has
tendered payment of the outstanding
transfer costs, which are not
payable to the First Respondent, in order to effect the transfer. The
First Respondent is, accordingly,
obliged to comply with his
obligation to effect transfer.
ORDER
25.
In the circumstances, I make the following order:
25.1 The First Respondent
is directed to take all such steps as may be necessary to ensure that
the property described in paragraph
18.2 below is transferred to the
Applicant, including
25.1.1
attending
to procuring the compliance certificates contemplated by the
agreement of sale pertaining to the property concluded between
the
Applicant and the First Respondent on 31 July 2017; and
25.1.2
paying
to the Applicant’s attorneys nominated trust account, within 21
days of this Court’s order, the amount necessary
to discharge
the mortgage bond over the property, such amount to be:
25.1.2.1
held
by the Applicant’s attorneys on trust pending transfer to the
Applicant; and
25.1.2.2
paid
to the Fourth Respondent upon registration of transfer;
25.2
The
property referred to in paragraph 18.1 is the following sectional
title unit situated at 1 Ringwood Drive, Parklands, Western
Cape,
held under Deed of Transfer no.ST6980/2009:
25.2.1
section
no.13 as shown and more fully described on Sectional Plan No.SS
224/2000 in the scheme known as Maple Grove in respect of
the land
and buildings situate at Parklands in the City of Cape Town, Division
Cape, Province of the Western Cape, of which section
the floor area,
according to the said sectional plan, is 62 square meters in extent;
and
25.2.2
an
undivided share in the common property in the scheme appointed to the
said section in accordance with the participation quota
as endorsed
on the said sectional plan.
25.3 Subject to paragraph
18.4 below, in the event that the First Respondent fails, within 5
days of written request, to take any
of the steps required to ensure
that the property is transferred to the Applicant, the Sheriff of the
above Honourable Court be
authorised and directed to take such steps
on the First Respondent’s behalf.
25.4 Transfer of the
property will not be effected without the First Respondent’s
obligations under the indemnity bond, registered
over the property
described in paragraph 18.2 above in favour of the SA Home Loans
Guarantee Trust being discharged.
25.5 The First Respondent
is to pay the Applicant’s costs, excluding the costs attendant
upon the employment of senior counsel.
__________________________
FRANCIS,
AJ