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[2008] ZASCA 85
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Odendaal v Ferraris (422/07) [2008] ZASCA 85; [2008] 4 All SA 529 (SCA); 2009 (4) SA 313 (SCA) (4 September 2008)
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No: 422/07
In the matter
between: Precedential significance
TALITA
ODENDAAL APPELLANT
v
PATRICK
KEVIN FERRARIS RESPONDENT
Neutral citation:
Odendaal v Ferraris
(422/2007)
[2008] ZASCA 85
(1 September 2008)
Coram: Mpati P,
Cameron JA, Navsa JA, Cachalia JA et Leach AJA
Heard: 9 May 2008
Delivered: 1
September 2008
Corrected: 4
September 2008
Summary: In a sale
of property, the seller’s failure to obtain statutory approval
for building alterations on the property
constitutes a latent defect
in the property – where a seller does not wilfully conceal such
a latent defect he is entitled
to rely on the provisions of a
voetstoots
clause against a buyer who seeks to invoke the
aedilitian remedies against him, except where the absence of
statutory authorisation
renders the property unfit for the purpose
for which it was bought and sold.
____________________________________________________________
ORDER
____________________________________________________________
On appeal from:
High Court, Port Elizabeth (Miller J sitting as court of
first instance).
(1) The appeal is
upheld with costs including the costs of two counsel;
(2) The order of the
court below is set aside;
(3) In its place
there is substituted the following order:
(a) The application succeeds
with costs, including the costs of two counsel.
(b) The respondent is ordered
to vacate the property on or before 30 November 2008.
___________________________________________________________
JUDGMENT
___________________________________________________________
CACHALIA JA
(MPATI P, CAMERON JA, NAVSA JA et LEACH AJA concurring)
[1] This is an
appeal against the refusal by the high court sitting in Port
Elizabeth (Miller J) to grant an application for the
respondent’s
eviction from a residential property at Sunridge Park, Port
Elizabeth. The appellant, Ms Talita Odendaal, who
owns the property,
appeals with leave of that court.
The Factual
Background
[2] Early in 2006
the appellant appointed an estate agent to advertise her property for
sale. The house on the property (which measures
over 2000 square
metres) has, among its features, five bedrooms, a double garage, a
carport and an outbuilding, comprising both
a laundry and servant’s
quarters. There is also a swimming pool and a jacuzzi.
[3] On 19 March 2006
the respondent, Mr Patrick Ferraris, inspected the property in the
presence of the appellant’s estate
agent, Ms Dossie Nortjie. He
was looking to buy a large family house near to the local primary
school his children attended. In
addition to its proximity to the
school and its spaciousness, the particular feature that appealed to
him was ample undercover
and uncovered parking; as a collector of
classic motor vehicles he found the parking facilities were ideal.
[4] The respondent
was not able to gain access to the outbuilding during the inspection
because it was locked. However, the estate
agent, he says in his
answering affidavit (which, according to the well-known test, must
form the basis for our factual findings),
assured him that the
buildings were in a faultless condition, that the jacuzzi worked and
that the pool had been inspected for
leaks. On these assurances he
decided on the same day to sign a written offer to buy the property
for R 2,2 million. The appellant
accepted his offer. It was a
condition of the agreement that resulted that he would, by 5 April
2006, secure a bank loan to cover
the full amount and provide a bank
guarantee for payment on registration of transfer, secured by a first
mortgage bond to be registered
on transfer. He secured the loan in
good time and occupied the property, as agreed, on 30 June 2006.
[5] On the evening
he moved in, the staircase railing collapsed, narrowly missing his
daughter and destroying a yellowwood side
table. He discovered that
the railing was not secured, but during his inspection it had been
covered with animal skins thus concealing
the defect.
[6] A few days later
his family gained access to the outbuilding. They discovered that the
ceiling had ‘considerable water
damage and had partially
collapsed and will have to be completely replaced’. There was
also a sewer manhole cover in the
middle of the laundry. He avers
that the appellant and her estate agent ‘deliberately
concealed’ these defects from
prospective buyers.
[7] On 7 July 2006,
a week after occupying the property, the respondent visited the
municipality to satisfy himself that the buildings
conformed to
statutory requirements. Mr Peet Vosloo, the building control officer,
told him that the appellant’s predecessor
in title had obtained
approval for the outbuilding in March 2000, but only as a storeroom,
and subject to the condition that the
sewer was re-routed to comply
with the municipal town planning regulations. The construction was,
however, completed without so
complying. He also established that on
three previous occasions the municipality had rejected building plans
submitted for the
carport, which therefore did not comply with s 4 of
the National Building Regulations and Building Standards Act 103 of
1977. It
transgressed the 1.5 metre building line applicable to
property zoned ‘Residential 1’, without being approved in
terms of Municipality Zoning Scheme Regulations.
1
The garage, he also
discovered, did not comply with the regulations as it did not have a
firewall or fire door.
[8] Having
established this, the respondent became concerned that his bond
application might be compromised and informed the bank,
which advised
him to obtain a commitment from the seller to reduce the purchase
price as it was reluctant to approve the loan for
the full amount in
these circumstances. He accordingly instructed the bank to delay the
transfer of the property to enable him
to resolve the problem.
[9] On 10 July 2006
the respondent wrote to the estate agent drawing her attention to the
fact that the municipality had not approved
building plans for the
outbuilding and carport. (He did not refer to the absence of the
firewall and fire door in the garage.)
He sought confirmation that
these defects would be attended to at the seller’s cost. He
also intimated that he would instruct
the bank:
‘
To
delay, if necessary, the transfer and registration of this property
into my name because according to Law, once the property
is in my
name, the onus rests on me to effect changes which I feel at this
time is not my responsibility.’
[10] The following
day, Vosloo inspected the property and, having confirmed the illegal
structures, issued a notice to this effect.
It called on the owner of
the property to ‘divert the drainage to comply with plan 16006’
and to ‘submit plans
for (the) carport before registration to
the new owner take(s) place’. It is not clear on what authority
Vosloo relied to
order compliance with the building regulations
before
registration, but nothing turns on this.
[11] In the days
that followed the respondent discovered a number of further physical
defects, which were not apparent at the time
of the inspection. He
listed these in a schedule of photographs annexed to his affidavit.
They included the following:
(a) the jacuzzi was
faulty and the swimming pool leaked – despite the
estate agent’s
assurances to the contrary;
(b) the roof over one of
the bedrooms leaked; and
(c) the wood panelling in
the dining room had borer beetle in it, which caused dust to
accumulate on it daily.
[12] On 18 July 2006
the conveyancers who dealt with the transfer received a message from
the bank not to register the bond. They
promptly informed the
appellant’s attorneys, who the next day, invoking the
agreement’s forfeiture clause,
2
wrote to the
respondent:
‘
.
. . Our office has today been informed that you have instructed your
bank, FNB not to continue with the registration of the bond
when this
matter is ready at the Deeds Offices within the following ten days.
Kindly note that it is not clear to our client what
your intentions
are and place on record that you either need to elect to cancel the
sale agreement alternatively withdraw your
instruction to FNB
immediately.
Our client, at this stage does
not deem it necessary to respond to any of the allegations pertaining
to the alleged building deficiencies
and reserves her right to do so
at a later stage should it become necessary.
We herewith request that you
supply us with your election i.e. whether you wish to cancel the sale
alternatively that you will withdraw
your instruction to FNB within
the following seven days. Your instruction to FNB is viewed as a
breach of the written agreement
and in terms of paragraph 16 of the
offer to purchase we herewith give you notice to rectify your breach
on/or before 25 July 2006.
Should we not receive your election as
aforementioned by the close of business on Tuesday, 25 July 2006
our client will accept
your instruction to FNB not to register the
bond as a repudiation of the agreement and will act in terms of her
rights contained
in the sale agreement which may include the
immediate cancellation of the sale agreement.’
[13] On 25 July 2006
the respondent responded by telephoning the writer to discuss the
matter. The latter was, however, not receptive.
So the respondent
wrote to him later that day stating that the process to determine
time frames and costs of getting the property
to conform to municipal
standards would take time as this involved obtaining plans and
quotations. He therefore would not, he wrote,
withdraw his
instruction to the bank. In reaction, the appellant instructed her
attorney to cancel the contract, which he did by
letter on 27 July
2006 in these terms:
‘
.
. . We confirm that you have elected not to withdraw your
instructions to First National Bank not to continue with the
registration
of this transfer. Our conveyancing department as well as
the bond attorneys acting for First National Bank in Port Elizabeth
confirmed
that this matter was on prep at the deeds office on
Wednesday 25 July 2006 but could not be finalized as a result of
your
instruction to FNB. We have confirmed with the bond attorneys
that this is still the case this morning.
As per our letter of 19 July
2006 we confirm that your refusal to allow registration to take place
constitutes a repudiation of
the written sale agreement between
yourself and Mrs Odendaal dated 19 March 2006 and our client herewith
accepts your repudiation
and herewith formally cancels the written
agreement with immediate effect.
In view of the cancellation of
the sale agreement your occupation of our client’s property is
unlawful and we herewith demand
that you vacate the property
described as Erf 99 Sunridge Park by no later than Sunday 30 July
2006. Kindly note that we hold instructions
to commence eviction
proceedings should you fail to vacate the property by the said date.
. . .’
[14] The respondent
refused to comply with the demand to vacate the property. Instead he
instructed his attorneys to address a letter
to the appellant in the
following terms:
‘
.
. .
5. Our client has not yet
finally decided whether he would proceed with the sale at a reduced
price, or rescind the sale agreement.
He is entitled to be given a
reasonable period to obtain quotations to remedy the defects, so that
he can arrive at an informed
decision what to do. A number of
quotations have been obtained by our client but, as stated in his
letter to you dated 25 July
2006, the nature and extent of the
defects are such that the process of quantifying the cost of the
remedial work will take some
time. Our client is going out of his way
to speed up the process and hopes to have a full picture within 14
days, whereafter he
will advise your client of his decision.
We have noted your
client’s intention to institute eviction proceedings. Needless
to say, this will be opposed. Our client
will remain in occupation
of the premises and shall vacate same only if and when he has taken
a decision to rescind the sale
agreement. Payment of occupational
interest for August, as stipulated in clause 5 of the sale
agreement, is hereby tendered on
the understanding that our client
will be refunded pro rata should he decide to rescind the sale and
vacate the property before
the end of the month.’
[15] On 8 August
2006 the appellant commenced eviction proceedings against the
respondent in terms of the provisions of the Prevention
of Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE).
Five weeks later, on 13 September 2006, the respondent
purportedly
exercised an election to abide by the contract, though reserving his
right to claim damages or, alternatively, a price
reduction. The
appellant rejected this election and the dispute proceeded to hearing
in the high court.
The
Proceedings in the high court
[16] In her
application, the appellant maintained that the respondent’s
refusal to withdraw his instruction to the bank not
to register the
transfer was a breach of the agreement, and his refusal to rectify
the breach in the face of her attorneys’
demand a repudiation
of it. In respect of the latent defects complained of, she maintained
that the
voetstoots
clause
3
protected her. The
respondent asserted, on the other hand, that the appellant had
concealed the defects from him and, for this reason,
could not rely
on the clause’s protection. The aedilitian remedies, he
submitted, were thus available to him – and
he enjoyed a
reasonable time to elect whether or not to invoke them.
4
The appellant
admitted most of the defects but denied wilfully concealing them from
the respondent.
[17] It is not clear
from its judgment whether the high court found that the appellant
wilfully concealed the defects. Nor does
the court’s reasoning
deal with the effect of the
voetstoots
clause,
which excludes liability for both latent and patent defects. It
nevertheless upheld the respondent’s submission that
he was
entitled to invoke the aedilitian remedies and rejected the
appellant’s contention that by instructing the bank not
to
proceed with the transfer, he had repudiated the contract. The
learned judge thus concluded that the appellant cancelled the
agreement unlawfully and was therefore not entitled to an order
evicting the respondent.
[18] In this court,
counsel for the respondent relies on a new point of law – that
the
voetstoots
clause
does not protect the appellant from her failure to obtain statutory
approval for the construction of the carport and the
outbuilding. He
finds support for his submission in the decision of Goldblatt J in
Van
Nieuwkerk v McCrae
,
5
where the learned
judge held that in a sale of residential property a buyer is entitled
to assume that the building on a property
was erected in compliance
with all statutory requirements and that it could be used to its full
extent. The assumption, he said,
was so obvious that it was implied
as a matter of law in any agreement relating to the sale of property.
And so, he concluded,
it was an implied term (or at least a tacit
term) of such an agreement that alterations to a building that the
seller had effected
complied with statutory requirements.
6
[19] Goldblatt J
went on to hold that a seller cannot in these circumstances rely on a
voetstoots
clause since it
excludes liability only for latent defects of a physical nature but
does not apply ‘to the lack of certain
qualities or
characteristics which the parties have agreed the
merx
should have’ –
which included, he held, statutory compliance.
7
For this conclusion
he found support in
Ornelas
v Andrew’s Café and another
,
8
where a property was
sold as a going concern for the purpose of conducting a café
and restaurant business. But after the
sale the buyers became aware
that the restaurant was being conducted without a licence, and they
were unable to obtain one to operate
it. They therefore cancelled the
sale, contending that the sellers’ failure to deliver a
property from which the envisaged
business could lawfully be
conducted was a material breach of an implied term. The sellers
sought refuge in a
voetstoots
clause which
provided:
‘
.
. . The purchasers purchase the said business, together with the
assets thereof, voetstoots. It is hereby recorded that the sellers
have not in any way given to the purchasers, either expressly or
impliedly, any warranty as to the turnover of the business, nor
have
they either expressly or impliedly given to the purchasers any
warranty as to the
state
or condition of the business
,
or as to the quality, state or condition of the stock of the said
business or any part thereof. The purchasers further acknowledge
that
the sellers have not made any representations whatsoever as to the
turnover of the said business, nor have the sellers made
any
representation whatsoever as to the quality,
state
or condition of the said business
,
or of the stock of the said business or of any assets thereof.’
9
(Emphasis
added)
[20] The court
(Nestadt J) construed this clause restrictively, holding that the
‘state or condition of the business’
should be ‘confined
to the physical or visible qualities of the business’.
10
It thus held that
the clause did not exempt the sellers from their obligation to
deliver a business that could lawfully be conducted,
that is with a
licence – there being an implied warranty to this effect –
and thus that this was not a ‘case
of a defect in the
res
vendita
’
but
in truth a case of delivery to the buyers ‘of something
different from what was bought’.
11
[21] In my view,
Ornelas’s
case is quite
distinct from both
Van Nieuwkerk
and
the present case. The absence of a licence to operate the premises as
a restaurant or eating house meant that the buyers could
not use it
for the express purpose for which it had been purchased. ‘The
whole tenor of the agreement’, Nestadt J pointed
out, was that
such a business would ‘be conducted at the premises’.
12
The
voetstoots
clause therefore did
not ‘exempt the sellers from their obligation to deliver a
business which includes a restaurant able
to be lawfully operated’.
13
[22] By contrast,
the absence of the statutory approvals for building alterations, or
the other authorisations that render the property
compliant with
prescribed building standards, such as were at issue in
Van Nieuwkerk
,
and are at issue here, do not render the property unfit for the
purpose for which it was purchased. The respondent does not allege,
nor could he, that the permissions relating to the outbuilding and
carport render the property unfit for habitation. Nor does he
allege
that the municipality proposes to enjoin him from living on the
property, or that he is incapable of acquiring the permissions
necessary to render the alterations compliant with statutory
provisions. The appellant did not deliver to him ‘something
different from what was bought’ as in
Ornelas
.
On the contrary, he received exactly what he purchased, namely an
ideally-located spacious dwelling house with ample parking space.
[23] It is true that
the outbuilding and carport were unauthorised. But as will appear
from the discussion below, the absence of
statutory permissions
necessary to render them authorised are defects to which the
voetstoots
clause applies. This
case is therefore distinguishable from
Ornelas
,
which in my view does not support the reasoning or conclusion reached
in
Van Nieuwkerk.
[24] This conclusion
raises the more general question of the nature of the defect that
would fall within the scope of a
voetstoots
clause.
Its ambit was left open in
Ornelas
,
14
though the court
rightly emphasised that the exclusionary scope of a
voetstoots
clause in any
particular case must be decided on its own facts.
15
In a broad sense,
any imperfection may be described as a defect.
16
Whether the notion
of a ‘defect’ is to be restricted only to physical
attributes of the
merx
or
to apply more broadly to extraneous factors affecting its use or
value has generated discordant judicial and academic opinion.
17
In relation to a
voetstoots
sale
of land, for example, that is a sale of land ‘as it stands’,
it has been held that the language is wide enough
to cover not only
any hidden defect in the property itself, but also any defect in the
title to, or area of, the property.
18
The defect in
Ornelas
,
that the building on the property could not be licensed for business
purposes, might indeed be argued to fall into this category,
but I
refrain from expressing a view thereon, since as pointed out, the
basis of the decision there was that something entirely
different was
delivered from what had been sold. It was against the background of
this critical finding that Nestadt J restricted
the application of
the
voetstoots
clause in that case
to the physical state or condition of the premises.
[25]
Glaston
House (Pty) Ltd v Inag (Pty) Ltd
19
also took a broad
view of what constituted a latent defect – there, this court
held that existence of a sculpture with its
pediment and cornice,
which had been declared a national monument, and which was embedded
in a dilapidated building, thus precluding
the redevelopment for
which the property had been bought, was a latent defect.
20
The reason, said the
court, was that the sculpture, even though valuable in itself and
therefore hardly a physical ‘defect’,
hindered the use to
which the property was to be put.
21
It is now settled
that any material imperfection preventing or hindering the ordinary
or common use of the
res
vendita
is
an aedilitian defect.
22
In
Holmdene
Brickworks (Pty) Ltd v Roberts Construction Co Ltd
,
23
Corbett JA put
it this way:
‘
Broadly
speaking in this context a defect may be described as an abnormal
quality or attribute which destroys or substantially impairs
the
utility or effectiveness of the
res
vendita,
for
the purpose for which it has been sold or for which it is commonly
used . . . Such a defect is latent when it
is one
which is not visible or discoverable upon an inspection of the
res
vendita
.’
[26] In my view,
therefore, the absence of statutory approval such as is at issue
here, and was at issue in
Van Nieuwkerk
, constitutes a latent
defect. The lack of permission in respect of both the manhole over
the sewer, which the respondent concedes
in his answering affidavit
is a latent defect, and the carport’s irregular structure,
which may require either its demolition
or alteration as a condition
for approval, are defects which interfere with the ordinary use of
the property – thus satisfying
the
Holmdene Brickworks
test
– and are therefore latent defects within the aedilitian
concept. The fact that they also contravene building regulations
does
not change their character. To the extent that
Van Nieuwkerk
suggests otherwise I respectfully disagree with it. So, barring
the supervention of public policy considerations, or of illegalities
impacting on constitutional prescripts – and none were alleged
here – a
voetstoots
clause ordinarily covers the absence
of statutory authorisations.
[27] Goldblatt J’s
implied term warranting statutory compliance is apparently no more
than a reiteration of the rule that
the seller of a
merx
warrants
that it is free of latent defects. It is not, as counsel for the
respondent sought to suggest, an additional term, which
exists side
by side with and supplements the latter warranty. The whole purpose
of a
voetstoots
clause, the contracting parties agree, is to
exempt the seller from liability for defects of which he or she is
not aware. And where
a seller’s statutory non-compliance
concerns latent defects in the property, as in this case, the seller
ought to be entitled
to invoke the exemption. The appellant’s
belated reliance on
Van Nieuwkerk
to escape its consequences
is therefore misplaced.
[28] On this basis,
subject to a closer examination of the further facts, the issue thus
remains whether the
voetstoots
clause,
24
which otherwise
appears to cover all the physical defects of which the respondent
complains, including the outbuilding and carport,
protects the
appellant.
[29] It is trite
that if a buyer hopes to avoid the consequences of a
voetstoots
sale,
he must show not only that the seller knew of the latent defect and
did not disclose it, but also that he or she deliberately
concealed
it with the intention to defraud (
dolo
malo
).
25
Where a seller
recklessly tells a half-truth or knows the facts but does not reveal
them because he or she has not bothered to consider
their
significance, this may also amount to fraud.
26
But as this court
has said, fraud will not lightly be inferred, especially when sought
to be established in motion proceedings.
27
And where a party
seeks to do so the allegation must be clear and the facts upon which
the inference is sought to be drawn succinctly
stated.
28
[30] The appellant
contends that the respondent has not established a case of fraud
against her and that the court below therefore
erred in finding that
the respondent could avail himself of the aedilitian remedies despite
the
voetstoots
clause. Counsel for
the respondent, on the other hand, contends that the papers establish
wilful non-disclosure against the appellant
personally and fraudulent
misrepresentation against her estate agent. In this regard an estate
agent’s misrepresentation
in the course of executing her
mandate binds a seller, whether or not the seller is aware that it
was made.
29
The appellant’s
denial that she was aware of the representations can therefore not
assist her.
[31] I deal with the
allegations against the estate agent first. In his answering
affidavit the respondent avers that she:
‘
.
. . made representations to me that the swimming pool and jacuzzi
were free from defects and the improvements to the property
were in a
faultless condition. I relied on these assurances to buy, but the
statements turned out to be false.’
Although this
allegation is effectively unchallenged, as the estate agent did not
file an affidavit, it does not establish fraud.
Indeed the respondent
does not even allege that the agent knowingly made false
representations, nor does he provide any facts from
which that
inference can be drawn. At best, his allegation is one of innocent
misrepresentation, which must founder in the face
of the
voetstoots
clause.
[32] Against the
appellant personally, the respondent makes several allegations. It is
necessary to analyse each to decide whether
a case of fraud has been
made against her.
The
Outbuilding
[33] This part of
the building, the respondent alleges:
‘
.
. . had been locked during our initial inspection of the house and
the keys were then not available. We (subsequently) discovered
that
the ceiling had considerable water damage and had partially collapsed
and will have to be completely replaced. We also discovered
a sewer
manhole in the middle of the laundry; the sewer rodding eye
projecting into the shower of the outbuilding bathroom; and
another
rodding eye in the outbuilding bedroom. The sewer manhole was covered
during our inspection of the house and it had become
apparent that
the above defects had been deliberately concealed from prospective
buyers.’
[34] In accordance
with the well-established test, the factual premises on which the
matter is to be adjudged must derive from the
respondent’s
averments, plus those of the appellant which the respondent cannot
deny. However, the respondent’s claim
that the ‘defects
had been deliberately concealed’ is not itself a fact, but an
inference he makes from the facts he
states; and to assess its
validity the court is entitled to consider the appellant’s
response. In her replying affidavit
she explains that this part of
the building was locked during the respondent’s inspection
because valuable hunting equipment
was inside. Importantly, she
states that the respondent was not denied access to the building and
would have been able to gain
access to it if he had asked. She states
further that the water damage and the sewer manhole, which she says
was not covered, were
patent defects discoverable upon a cursory
investigation.
[35] As a general
rule, where a buyer has an opportunity to inspect the property before
buying it, and nevertheless buys it with
its patent defects, he or
she will have no recourse against the seller.
30
It is apparent that
the respondent discovered the water damage immediately after taking
occupation – and thus that he would
have done so had he asked
for access at the time of his inspection. He has himself to blame for
failing to do so and cannot hold
his failure against the appellant.
[36] The
respondent’s averment that the sewer manhole was covered at the
time of the inspection must, despite the appellant’s
denial, be
accepted as correct in these application proceedings. However, as
explained, his allegation is too vague to lay the
basis for a
conclusion of fraud. There is no description of how the manhole was
covered, nor does the respondent provide any other
evidence to
support an inference of ‘deliberate concealment’ against
the appellant. The allegation is also confusing
because, on the
respondent’s version, he did not inspect this part of the
building. We are left to ponder on how he noticed
that the manhole
was concealed at the time.
No Approved
Plans for the Outbuilding, Carport and Garage.
[37] I have
mentioned these allegations earlier.
31
There is no
suggestion on the papers that the appellant was aware that the
outbuilding did not have approved plans or that the garage
contravened building regulations. Even less is there any suggestion
of fraud on her part. She herself had purchased the property
five
years earlier from her predecessor in title.
[38] The appellant’s
assertion that she was unaware that plans for the carport were not
approved is questionable. In the face
of the municipality’s
rejection of the plans on three previous occasions and the absence of
any explanation why the drafter
whom the appellant paid to draw and
submit the plans to the municipality for approval, did not depose to
an affidavit, it appears
unlikely that she was unaware of this
problem. However, there is no suggestion on the papers that, if she
was aware, she ought
to have considered the matter significant enough
to mention to the buyer. In any event the respondent’s
allegations fail
to establish that the appellant deliberately
concealed this fact from the respondent (the test this court
established in
Van
Der Merwe v Meades
)
32
–
indeed he
makes no such allegation.
Miscellaneous
Defects
[39] The appellant
avers that on the evening his family occupied the property:
‘
A
part of the railing to the staircase leading to the loft room, made
of heavy hardwood of the type that was used for railway sleepers,
collapsed without warning, narrowly missing my daughter in the living
room below and destroying a yellowwood side table that it
fell onto.
On inspection, it was discovered that this railing was not fastened
in any way. During our inspection of the property,
this railing was
covered with animal skins and this had accordingly been concealed
from our attention.’
[40] In her replying
affidavit the appellant admits that the railing was covered with
animal skins, but denies that it was covered
in a manner that
concealed how it was secured. There is no factual dispute on this
aspect. The respondent makes no allegation of
fraudulent concealment
– and no such inference can be drawn.
[41] The respondent
points to various other defects, which he discovered after taking
occupation. These include leaks in the swimming
pool, that the
jacuzzi was not in proper working order and that there was active
borer beetle in the wood panelling, all of which
I have mentioned
earlier.
33
But he does not
claim they existed at the time the contract of sale came into
existence. Indeed, in her replying affidavit, the
appellant avers
that when the agreement was signed on 19 March 2006 (that is, more
than three months before the appellant occupied
the property), there
was no sign of these defects. The respondent does not gainsay these
assertions – and as the defect must
exist at the time of the
sale for the buyer to avail himself of the aedilitian remedies,
34
the respondent has
no recourse to them. Also, as with his other complaints, he does not
establish, on any basis, that the appellant
fraudulently concealed
these defects.
[42] To conclude, a
litigant who undertakes the burden to establish fraud, especially in
motion proceedings, must ensure that both
his allegations, and the
facts on which he relies to underpin them, are clear and specific.
The respondent’s allegations
are, in the main, vague,
unspecific and devoid of sufficient evidential support. He therefore
failed to lay the basis for a finding
of fraud in these proceedings,
and thus cannot avoid the consequences of the
voetstoots
clause.
[43] It follows that
he had no warrant or justification for his instruction to the bank to
stop transfer of the property which,
objectively viewed, was a
repudiation of the agreement. His repudiation entitled the appellant
to in turn invoke the provisions
of the forfeiture clause and
thereafter to exercise her right of cancellation. His purported
election, six weeks later, to abide
by the contract is, therefore, of
no legal consequence and does not assist him.
[44] The respondent
has placed no facts before us to demonstrate that it would be just
and equitable not to evict him from the property
under PIE. But
having regard to the fact that he has occupied the property for more
than two years, while paying occupational rent,
it would be unduly
disruptive to order his immediate eviction, especially because his
children are of school-going age and will
soon be facing their final
examinations. In the circumstances it would be just and equitable for
the respondent and his family
to vacate the property by no later than
30 November 2008.
[45] It follows that
the appeal must succeed. There is an order in the following terms:
(1) The appeal is
upheld with costs including the costs of two counsel;
(2) The order of the
court below is set aside;
(3) In its place
there is substituted the following order:
(a) The application
succeeds with costs, including the costs of two counsel.
(b) The respondent
is ordered to vacate the property on or before 30 November 2008.
________________
A CACHALIA
JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT: C H J
BADENHORST SC and N P G REDMAN
FOR RESPONDENT: J W
EKSTEEN SC
ATTORNEYS:
FOR
APPELLANT: MAGEZA LE ROUX VIVIER & ASS;
JOHANNESBURG
E G COOPER
ATTORNEYS; BLOEMFONTEIN
FOR RESPONDENT: DE
VILLIERS & PARTNERS; CENTRHIL
HONEY ATTORNEYS;
BLOEMFONTEIN
1
Port
Elizabeth Zoning Scheme Regulations promulgated in terms of the Land
Use Planning Ordinance 15 of 1985 (C).
2
Clause
16, the forfeiture clause, provides:
‘
DEFAULT.
If after acceptance hereof either party fails to fulfil any of the
conditions hereof, and remains in default for a period
of 7 (seven)
days after written notice has been given by the other party or his
agents, then the aggrieved party shall be entitled
without prejudice
to any other right of law, to claim performance or cancellation of
this contract and damages. No indulgence
which either party may
grant to the other shall constitute a waiver of any rights of the
grantor.’
3
Clause
3 of the agreement provides: ‘VOETSTOOTS. The PROPERTY is sold
to the PURCHASER voetstoots, there being no warranty
against
defects, latent or patent offered or required.’
4
These
remedies are the
exceptio
redhibitoria
and
exceptio quanti
minoris
, which
respectively, entitle a buyer to tender restitution of the subject
matter of the sale in return for the purchase price
or to demand a
reduction of the purchase price. See generally A J Kerr
The
Law of Sale and Lease
3
ed
(2004) Ch 5.
5
2007
(5) SA 21
(W).
6
Ibid
p 28D-G.
7
Ibid
p 29B-C.
8
1980
(1) SA 378
(W) at 388G-390C.
9
Ibid
p 385D-F.
10
Ibid
p 388G.
11
Ibid
p 389D.
12
Ibid
p 386E-F.
13
Ibid
p 387H.
14
I
bid
p 388-388H-389A.
15
Ibid
p 389A.
16
See
generally: 24
Lawsa
(first
reissue) para 48.
17
See
D G John ‘Voetstoots Clause and the Meaning of “Defect”
’ (1954) 71
SALJ
p
8-10; B R Bamford ‘Aspects of a
Voetstoots
Clause’ (1956) 73
SALJ
p
62-69; G F
Lubbe ‘Law of Purchase and Sale-Remedies’ (1977)
Annual
Survey of South African Law
123;
Ornelas v Andrew’s Café
1980 (1) SA 378
(W) at 388G-389A;
Glaston House (Pty) Ltd v Inag (Pty)
Ltd
1977 (2) SA 846
(A) at 866D-H.
18
F
du Bois
Wille’s Principles of
South African Law
9 ed (2007) p 892;
Uhlmann v Grindley-Ferris
1947
(2) SA 459
(C) at 462;
Voet, 21.1.1
suggests that a servitude over land is
a latent defect, although De Wet en Yeats,
Kontraktereg
en Handelsreg
4 ed (1978) p 292, note
97 takes the opposite view.
19
1977
(2) SA 846
(A).
20
Ibid
p 866F.
21
See
A J Kerr
The Law of
Sale and Lease
3 ed (2004) p 120.
22
Ibid.
23
1977
(3) SA 670
(A) 683H-684A. The first part of the dictum was
reaffirmed in
Ciba-Geigy (Pty) Ltd v
Lushof Farms (Pty) Ltd and another
2002
(2) SA 447
(SCA) at 465J.
24
See
above at fn 3.
25
R
H Christie
The Law of Contract in South
Africa
5 ed (2006) p 295;
Van
Der Merwe v Meades
1991 (2) SA 1
(A)
at 8E-F.
26
Christie
(above) at p 295.
27
Loomcraft
Fabrics CC v Nedbank Ltd and another
[1995] ZASCA 127
;
1996
(1) SA 812
(A) 822H-I.
28
Breedt
v Elsie Motors (Edms) Bpk
1963 (3) SA
525
(A)
.
29
Davidson
v Bonafede
1981 (2) SA 501
(C) at p 504B-C.
30
F
du Bois
Wille’s Principles of South
African Law
9 ed (2007) p 897.
31
See
above para 7.
32
1991
(2) SA 1
(A).
33
See
above at para 11.
34
Ibid
p 897.