About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2018
>>
[2018] ZANCHC 35
|
|
Motone and Another v Siyaphi and Another (795/2017) [2018] ZANCHC 35 (15 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
CASE
NO: 795/2017
Heard
on: 16 March 2018
Delivered
on: 15 June 2018
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: YES
CIRCULATE
TO MAGISTRATES: NO
CIRCULATE
TO REGIONAL MAGISTRATES: NO
In
the matter between:
IGNATIUS
MOSIMANEOTSILE
MOTONE
1st
APPLICANT
BOITUMELO
ANGELIQUE
MOTONE
2nd
APPLICANT
and
FRANCE
SIYAPH
I
1st
RESPONDENT
THE
REGISTRAR OF
DEEDS
2nd
RESPONDENT
JUDGMENT
VUMA,
AJ
INTRODUCTION
[1]
This is an opposed application issued by the applicants in which they
seek for an order in the following terms:
'1. Cancellation of
the deed of sale entered into by the applicants with the first
respondent on 2 February 2016.
2. That the First respondent be
ordered to pay the applicants the amount of R150 000-00 together with
all the damages suffered by
the applicants
as a
result of the
deed of sale entered into by the parties, within 15 (fifteen) days
from the date of order; and
3. That the first respondent be
ordered to pay the costs of the application'.
[2]
In her opening address Ms Tyuthuza, counsel for the applicants,
submitted that the Amended Notice of motion dated 3 November
2017 is
the basis upon which this application has been brought. She further
stated that the applicants were now abandoning the
first relief
sought, that is cancellation of the Deed of sale concluded between
the parties on 2 February 2016 and that approach
this was in view of
the fact that in July 2017 the parties had entered into a
cancellation agreement cancelling the February 2016
Deed of sale. She
submitted that in light hereof prayers 2 and 3 of the Amended Notice
of motion still persist.
FACTUAL BACKGROUND
[3]
On 2 February 2016 the first and second applicant entered into a
written Deed of sale with the first respondent ("the parties")
for the purchase of property known as "Erf 25258, Galeshewe,
Kimberley". It is not in dispute that the applicants paid
the
purchase price of R150 000-00 in two installments into the bank
account of the first respondent.
[4]
The material term of the deed of sale was that the applicants will
take occupation of the property upon its registration by
which date
the first respondent or any other person occupying the property would
be obliged to vacate the property.
[5]
It is not in dispute that at all material times relevant thereto the
first respondent was representing himself as the owner
of the said
property.
[6]
In December 2016 the applicants established through a deed search
that the property does not exist. It thus becomes common cause
that
the property was never transferred to the applicants nor was anything
ever done to effect transfer of the property into the
applicants'
names.
[7]
Following the above, pursuant to a Notice of Motion filed in March
2017 by the applicants, an application for the cancellation
of the 2
February 2016 deed of sale and for an order of specific performance
was brought on 26 May 2017.
[8]
On 28 July 2017 the applicants and the first respondent concluded an
agreement titled "Deed of cancellation of sale"
("the
2nd Agreement"). The material term of the deed of cancellation
was that the first respondent is liable for the
wasted costs
occasioned by the "purchase of the property" and also that
he shall refund to the applicants the purchase
price of R150 000-00
within 21 days of the signing of the deed of cancellation.
[9]
On 3 November 2017 the applicants filed the so-called Amended Notice
of motion.
The
first respondent did not oppose the Amended Notice.
[10]
In
response to the above the first respondent
filed his opposing affidavit on 14 December 2017 to which he deposed
on 13th thereof.
The nub of what he alleges therein is that on 11
August 2017 the first applicant confronted and physically assaulted
him, swore
at him and extensively damaged his motor vehicle which
damage resulted in smoke coming out of his car engine. He alleges
that the
total damages in respect of the above actions by the first
applicant amount to R388 243-00. The breakdown of the said heads of
damages is as follows:
10.1 Pain and suffering: R150 000-00.
10.2 Reputational damages: R150 000-00
10.3 Patrimonial damages in respect of
the Engine of his car: R88 243-00
[11]
In respect of the car damages he further alleges that following the
first applicant's actions, he took his car to lsolimo Panel
Beating
and General Works who established that the car engine was damaged
beyond repair which led to the car engine being replaced.
He attached
a quotation totaling an amount of R88 243-00, with the engine quote
stated as R75 000-00.
[12]
He alleges that as a result of the above damages he entitled by the
law to refuse to pay any amount to the applicants since
he is also
entitled to a set-off against the applicants' claim given the fact
that his claim far exceeds the amounts he admits
he owes the
applicants, that is R150 000-00. He further alleges that he will
institute a civil claim against the first applicant
as a result of
the latter's actions as stated above.
[13]
Regarding the car engine damage, the first applicant attached an
Affidavit marked "MM3" deposed to by one Mr Neville
Baatjies who is employed as a police official at the South African
Police Service ("SAPS"). He stated therein that he
was
assigned as the Investigating Officer in the criminal case opened by
the first respondent against the first applicant following
the
alleged altercation that ensued between the parties on or about 11
August 2017. That after the case was investigated it was
sent to the
Senior Prosecutor who declined to prosecute on 13 September 2017. He
further stated that upon being questioned about
the quotation, the
panel beater stated that he gave same on the basis of the engine that
had overheated and resultantly borrowed
the first respondent his
engine and further that no car was damaged on the day of the
incident, at least according to the panel
beater.
SUBMISSIONS
BY THE APPLICANT
[14]
The applicant's counsel conceded the first respondent's point
in
limine
argument that the applicants based their application on an
agreement which had ceased to exist by virtue of its cancellation
following
the conclusion of the 2nd Agreement between the parties.
She further conceded the respondent's counsel's submission that based
on the cancellation of the first agreement, the legal
causa
(that
is the deed of sale) upon which this application has allegedly been
brought as per the applicants' Amended Notice of motion
is
incompetent. She further conceded that in light thereof the legal
causa
upon which the applicants should have based their
application should have been liability arising out a breach of
contract, that
is, the 2nd agreement concluded between the parties.
[15]
Regarding the first respondent's alleged counterclaim, she submitted
that the first applicant denies the account by the first
respondent
regarding the events on 11 August 2017, adding that the first
applicant denies ever assaulting, insulting or even damaging
the
first respondent's car. It was further submitted that the first
respondent has also failed to make a case for a set-off since
he
failed to meet the necessary allegations regarding the requirements
to be satisfied for such a prayer. It was further submitted
that
there was no basis for this court to refer the issues arising from
the disputed facts to trial since they were not related
to the
application at hand.
SUBMISSIONS
BY THE RESPONDENT
[16]
As already alluded to above, the first respondent opposed the
application on merits and by raising a point
in limine,
namely,
that the prayer sought by the applicants is incompetent in that the
applicants rely on the terms of the initial deed of
sale which was
cancelled by the parties on 28 May 2017 and had thus ceased to exist.
He submitted that the application must thus
be dismissed.
[17]
On the merits of the application, the first respondent admitted his
indebtedness to the applicants in the amount of R150 000-00
arising
out of the terms of the second agreement, but submitted that he has a
bona fide
counter claim in the amount of R388 243-00 following
the damages he suffered at the hands of the first applicant on 11
August 2017.
On his behalf it was submitted that from the applicants'
submissions and affidavits, it was common cause that a factual
dispute
in respect of the events surrounding the 11 August 2017
existed and that such factual dispute means that this application
could
not be properly decided on affidavits or papers. He submitted
that the said factual disputes can therefore not be resolved in the
absence of oral evidence. He further submitted that the applicants
should have foreseen the eventuality of the disputed facts and
that
in the result either the application must be dismissed or the matter
be referred to trial for oral evidence since the first
respondent
intends to institute a damages claim based on the events of 11 August
2017.
ISSUES
[18]
Based on the above, this court is called upon to make a determination
in respect of the following issues, namely:
18.1 Whether the application was
brought on a wrong cause of action; and
18.2 Whether there exists a reasonable
foreseeable dispute of fact.
THE LAW
[19]
Ad
LAWSA (3ed) Volume 4
Civil
Procedure in
Superior
Courts,
Factual
Disputes, 2017
, wherein it is stated that
"unless the application is dismissed, the court should adopt
the procedure that is best calculated to ensure that justice is
done
with the least of delay. In this regard it exercises a discretion".
CASE LAW
[20]
In instances where factual disputes arise between the parties, the
court may follow the principle established by the Supreme
Court of
Appeal in the matter of
Plascon-Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A),
("Plascon-Evans
approach") where it was held that when factual disputes arise,
relief should be granted only if the facts
stated by the respondent,
together with the admitted facts in the applicant's affidavits,
justify the order'. Simply put, the court
will grant the relief
sought only if the facts stated by the respondent, together with the
admitted facts in the applicant's affidavit(s),
justify the order
sought.
ANALYSIS
[21]
It is common cause that applicants' counsel submitted that the
applicants were abandoning the first relief sought considering
the
July 2017 cancellation agreement of same. Accordingly this court will
not labour in respect thereof. It is further common cause
that the
first respondent's counsel raised a point
in limine
that the
applicants' cause of action is in terms of a
causa
(that is
the deed of sale which had ceased to exist due to its subsequent
cancellation by the parties and that since there is a
concession in
this regard, that the application falls to fail and must be dismissed
with costs.
[22]
What is further common cause is that the first respondent does not
dispute his indebtedness to the applicants in the amount
of R150
000-00 and the fact a Deed of cancellation in terms of which he
acknowledges his indebtedness to the applicants also incorporates
the
terms in respect of which he would be repaying the debt.
[23]
It is common cause that the Deed of sale is the original
causa
which resulted in the applicants paying the
amount of R150 000-00 to the first respondent. It is further common
cause that the contention
by the first respondent is that the
applicants should have based their application and prayer for the
specific performance of payment
pursuant
to the 2nd Agreement and not the original Deed of
sale.
[24]
When regard is had in respect of prayer number 2 which is the basis
of the respondent's point
in limine,
which reads thus:
'That
the First Respondent be ordered
to
pay
the
applicants the
amount of
R150
000-00
togetherwith
all
the
damages
suffered by the
applicants
as a
result of the deed of sale
entered into by the parties.......
'
(My emphasis), the
concession made by the applicants' counsel becomes questionable. From
the wording highlighted above, the interpretation
that can be
attached to same is that the applicants' averment is that 'had it not
been for the deed of sale which the parties had
entered into, the
applicants would not have suffered the damages in the claimed amount
as they did'. Put differently, the interpretation
is that the deed of
sale is what caused us to pay the first respondent an amount of R150
000-00 which led to our loss or damages.
The respondent's counsel
seems to suggest that the wording thereof avers that the claim is
based on the deed of sale whereas it
should have been based on the
Deed of cancellation.
[25]
Despite the applicants' counsel concession, I am of the view that
there is nothing untoward about the wording of prayer 2 (two)
since
it is common cause that the applicants' damages were occasioned by
them paying the claimed amount on the strength of the
deed of sale.
It is a fact that the applicants' damages were not caused by the Deed
of cancellation, otherwise that submission
and the conclusion being
contended for by the respondent would not be sustainable. The fact
that the Deed of sale was cancelled
does not negate the fact that the
amount of R150 000-00 was paid in respect thereof and that is exactly
what prayer number 2 reads.
It is my view that upon the deed of sale
being cancelled, it still left the repayment of the R150 000-00
pending.
[26]
Cancelled or not, the fact of the matter remains that the applicants'
loss arises from the deed of sale which fact is not eroded
by its
subsequent cancellation. The effect of the cancellation simply affirm
the inoperableness of the agreed transfer and occupation
of the
parties given its non-existence, otherwise the debt due to the
parties thereby still subsists.
[27]
It is in instances of this nature that the trite adage that form
should never take precedence over substance holds true.
[28]
In the premise I find that the respondent has not make a case for his
point
in limine
and accordingly his point
in limine
is
dismissed.
[29]
Regarding the question of the alleged factual disputes between the
parties
re
the respondent's 'counterclaim', the respondent's
counsel submits that since the intended counterclaim by the latter
against the
first applicant exceeds the debt owing to the applicants,
in light of the factual dispute emanating from the parties' account
of
the events in respect of the 11 August 2017 events, that this
matter be referred to trial for oral evidence. In this regard I am
of
the view that even before the court orders that the application be
referred to trial to address the factual disputes, what needs
to be
determined is whether the court is satisfied whether
ex facie,
the
first respondent has made out a case
re
the 'counterclaim'
which is triable, so to speak.
[30]
Looking at the Affidavit of Mr Baaitjie, the Investigating Officer in
the criminal case opened by the first respondent against
the first
applicant following the events of 11 August 2017, there are material
differences in respect of allegations in his Opposing
Affidavit that
the first applicant damaged his car engine. It is common cause that
the first applicant denies the first respondent's
allegations in
total. From Mr Baaitjie's affidavit, he avers that the panel beater
who attended to the first respondent's car after
the alleged
altercation informed him that there was no car that was damaged on
the date in question, hence even the Senior Prosecutor
declined to
prosecute.
[31]
On the basis of the above, I am not pursuaded that
prima facie,
the first respondent has a triable case against the first
applicant which justifies this matter being referred for trial. The
reason
is because already the respondent's version has been
countermanded by Mr Baaitjie under oath. Coupled with that is the
fact that
whereas the application was heard on 15 March 2018 and the
Opposing affidavit wherein the first respondent alleges that he would
be instituting a damages claim against the first applicant was
deposed to on 13 December 2017, the first respondent had not
instituted
the said claim yet, this despite the fact that the said
damages were suffered in August 2017. This court is well aware of the
three
years prescription period within which the first respondent is
entitled to institute his claim against the first applicant, however
so, its view is that the applicants' constitutional right to a speedy
expedition to their right should not be encumbered flimsily.
This
finding is however not a bar for the first respondent to pursue an
action against the first applicant as he has stated.
[32]
In light of the facts of this matter, coupled with the fact that the
allegations raised in the first respondent's 'counterclaim'
do not
necessarily have anything to do with the undisputed payment of R150
000-00 due to the applicants, I am of the view that
the 'defence'
raised by the first respondent ought to fail. I am satisfied that the
applicants have make out a case for the prayers
they seek.
[33]
In the result the following Order is made:
ORDER
1. Applicants succeed in their
application.
2. Prayers 2 and 3 in terms of the
Amended Notice of Motion dated 3 November 2017 are granted.
__________________
L
Vuma
Acting
Judge
Northern Cape High Court
Heard
on: 16 March 2018
Delivered
on: 15 June 2018
Appearances
For
Applicant: Adv. T. Tyuthuza
Instructed
by: Matthews and Partners
For
1st Respondent: Mr R. Bode
Instructed
by: Engelsman Magabane Inc.