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 69
|
|
Malinga and Another v Bradwell and Another (1911/2016) [2018] ZANCHC 69 (21 September 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
CASE
NO: 1911/2016
Heard
on: 26 June 2018
Delivered
on: 21 September 2018
In
the matter between:
SIPHO
CAMNDEY
MALINGA
1ST
PLAINTIFF
IRENE
KGOMOTSO
MALINGA
2ND
PLAINTIFF
and
ELIZABETH
HANELEY
BRADWELL
1ST
DEFENDANT
REGISTRAR
OF DEEDS,
VRYBURG
2ND
DEFENDANT
JUDGMENT
VUMA,
AJ
INTRODUCTION
[1]
This matter relates to an action instituted by the plaintiffs for
specific performance in the form of transfer of property described
as
11 Bosduif Avenue, Dingleton, Northern Cape Province (hereinafter
“the property”), arising from a Deed of sale that
was
concluded on 5 February 2007 between the plaintiffs and the first
defendant.
[2]
The defendant defended the action and filed a Special Plea of
extinctive prescription, claiming that the plaintiffs’ claim
fell due on 8
th
July 2007, alternatively on 8
th
July 2010 in terms of section 11(1)(d) of the Prescription Act 68 of
1969 (“the Act”).
[3]
A summons was served on the first defendant during September/ October
2016 and it is alleged by the first defendant that the
claim for
transfer of the property has prescribed. In the premises the first
defendant seeks for an order that the Special plea
be upheld with
costs including costs occasioned by the urgent application launched
by the plaintiffs and reserved as per the court
order dated 27 July
2016.
[4]
At the commencement of the trial, the parties submitted that the
matter should only proceed and be argued on a point of law,
namely,
prescription and not on the facts. However, for completeness sake,
the salient features relating to the factual background
are referred
to hereinafter.
BACKGROUND FACTS
[5]
On 5 February 2007 the plaintiffs and the first defendant (‘the
parties”) concluded a written Deed of sale in terms
of which,
inter alia
, the purchase price for the property was set in the
amount of R55 000-00, including the payments already paid in advance
to the
first defendant by the plaintiffs.
[6]
Prior to the above and before the Deed of sale was concluded, on 21
September 2006, the plaintiffs paid an amount of R5000-00
(FIVE
THOUSAND RAND) to the first defendant. A further payment of R25
000-00 (TWENTY FIVE THOUSAND RAND) was paid to the first
defendant by
the plaintiffs on 2 February 2007. The plaintiffs took occupation of
the property on 31
st
March 2007. The balance of the
purchase price being R25 000-00 (TWENTY FIVE THOUSAND RAND) was
payable in monthly installments
of R5000-00 (FIVE THOUSAND RAND)
each, the first installment to take place on 7
th
March
2007 and further payments to be made on or before the 7
th
day of each month thereafter. The remaining installments payable in
respect of the purchase price would be due and payable on the
7th
March 2007, 7th April 2007, 7th May 2007, 7th June 2007, and 7th July
2007.
[7]
The first defendant passed away on 9 September 2015 and Elizabeth
Bradwell was appointed on the 1st October 2015 as Executrix
to
administer the estate of the first defendant.
[8]
On 9 February 2018 the plaintiffs tendered payment of ‘the
balance’ of R15 000-00 in respect of the purchase price
against
the transfer of the property into the names of the plaintiffs, which
offer the first defendant declined. The plaintiffs
made this offer as
they alleged that they had made a further payment of R10 000-00 in
respect of the purchase price on 5 March
2007. The first defendant
denies receiving such payment and the plaintiffs thereafter admitted
its indebtedness to the first defendant
in the amount of R25 000-00
since they could not produce proof of the alleged payment.
[9]
The above facts culminated in the plaintiffs issuing summons in
September/ October 2016 for the transfer of the property against
their payment of the balance of the purchase price of R25 000-00. It
is common cause in paragraph 1.11 of the parties’ Minute
of the
Pre-trial Conference signed on 14 November 2017, the plaintiffs
admitted that they breached clause 1 of the Deed of sale
in that they
have failed to pay the outstanding amount of R25 000-00, in respect
of the purchase price, starting on or before the
7th March 2007.
SUBMISSIONS BY
PLAINTIFFS
[10]
In his opening address, Mr Van Riedt for the plaintiffs submitted
that the only issue for determination concerns prescription,
arguing
that since there is no direct law, they therefore base their
arguments on academic opinion. He disputed the first defendant’s
argument that since the Deed of sale was concluded in 2006/2007,
coupled with the fact the plaintiffs’ claim was one of specific
performance in the form of transfer, that the latter should have
therefore claimed transfer of the property long ago since the
claim
has become prescribed. The plaintiffs’ counsel conceded that at
the time summons was issued, the claim had indeed already
prescribed
by almost 5 (five) years. He then formally tendered payment of the
balance of the purchase price of R25 000-00 on behalf
of the
plaintiffs.
[11]
Upon the first defendant’s not accepting the payment tender by
the plaintiffs, the latter’s counsel made the submissions
as
they appear below-herein.
[12]
He submitted that prescription begins to run when a debt is due in
terms of
section 12(1)
of the
Prescription Act 68 of 1969
. He
conceded that the Deed of transfer gives no specific date of transfer
but only refers to the R25 000-00 that was to be paid
by the
plaintiffs within specified dates. He argued that since there was no
specified date for the transfer, transfer would therefore
have only
taken place upon the final instalment being paid by the plaintiffs.
He submitted that since the plaintiffs never paid
the outstanding
balance of R25 000-00, the debt therefore never became due and thus
prescription did not begin to run, given the
fact that the
plaintiffs’ payment of the balance of the purchase price was a
prerequisite for the transfer.
[13]
He conceded that the principle relied on by Mr Boot appearing for the
first defendant that a creditor cannot delay prescription
through his
own inactions at the debtor’s expense is one upon which the
courts have recognized and been relying on for the
past 30 (thirty)
years. He stated that regardless of the above and the fact that the
said principle have also been confirmed and
upheld by the
Constitutional Court, his that his view was that the said principle
was not applicable in
casu
. He alluded to the object of the
prescription, namely, to avoid stale claims He further conceded that
in
casu,
before we get to the demand part, there is a payment
that needs to be made by the plaintiffs/ creditor, which is exactly
what is
creating problems for the plaintiffs.
[14]
He submitted that there are exceptions which this court should
consider if they are applicable in this matter and in respect
of
which this court should make a finding, namely:
14.1 Whether it was
agreed between the parties or whether the parties implied that the
payment of the balance was a pre-condition
for the making of the
demand for the transfer, meaning, as a pre-condition, prescription
would not run until payment is fulfilled.
He argued that if the court
so finds, then prescription cannot be said to have started to run.
14.2 The second exception
relied on by Mr Van Riedt is gleaned from a Publication titled
Extinctive Prescription, written by Professor
M.M. Loubser and
published in 1996. He submits that in this book Professor Loubser
states that there is a reciprocal obligation
from both parties. In
line therewith he submits that the seller/ first defendant could
have, say, a month after the plaintiffs
had defaulted on their first
instalment payment, accelerated and claimed the total outstanding
balance, then tender the transfer
against the payment of the total
balance. This approach, Mr Van Riedt submits, would have obviated
this action. He submitted that
in
casu
the delay came from
both the plaintiffs and the first defendant, and thus making
prescription a far-fetched defence or and/ or a
Special plea. In this
regard he submits that there is no case law that does not refer to
Professor Loubser’s book, including
the Constitutional Court.
He adds however, that in respect of the paragraph to which he refers
this court, the Constitutional Court
does not refer to it.
14.3 Mr Van Riedt further
referred the court to the breach/ acceleration clause wherein it is
stated that the seller shall be entitled
to accelerate and claim the
total outstanding balance, then tender transfer against the payment
of the total balance in the event
the plaintiff failed to pay within
the stipulated date/s. He further submitted that as was held in the
matter of
Trinity Asset Management (Pty) Ltd v Grindstone
Investments 132 (Pty) Ltd
2017 (12) BCLR 1562
(CC)
,
a demand for payment must be found to have been a precursor for
prescription.
[15]
The plaintiffs rely on
section 13(2)
of the
Prescription Act
provisions
and it is submitted on their behalf that their claim has
not become prescribed because the first defendant’s reciprocal
right
to claim payment has not yet prescribed. In this regard the
plaintiffs’ counsel submitted that in terms of section 19(2) of
the Alienation of Land Act 68 of 1981 (“the Land Act”),
the first defendant was required to first make a demand on
the
plaintiffs for payment of the balance of purchase price with a 30 day
notice period before it would have been entitled to institute
action
for such payment by the plaintiffs. It is thus argued that to the
extent that the first defendant failed to comply with
the above
provision, the plaintiffs are entitled to an order that the property
be transferred into their names.
[16]
The plaintiffs further submit that
Section 19
of the
Alienation of
Land Act 68 of 1981
and the acceleration clause in Clause 6 of the
Deed of Sale are applicable to the facts or the contract in
casu
.
SUBMISSIONS BY THE
FIRST DEFENDANT
[17]
In reply to the above, Mr Boot appearing for the first defendant
submitted that since summons in
casu
was only issued sometime
after September 2016, in this matter it was therefore not the law
that is in dispute but the application
of same to the facts.
[18]
He further submitted that the plaintiffs’ claim for transfer of
the property constitutes a claim for a debt as contemplated
in the
Prescription Act 68 of 1969
. He further submitted that in terms of
section 11(1)(d) of the Act the plaintiffs’ claim fell due on
8th of July 2007, alternatively
on the 8th July 2010. He submitted
that based on that the plaintiffs were therefore under an obligation
to cause summons to be
served on the first defendant within a period
of 3 years calculated from the 8th of July 2007, alternatively within
a 3 year period
calculated from the 8th of July 2010. However, the
plaintiffs only served the said summons after 9 (nine) years after
the date
on which the plaintiffs’ debt became due. He thus
submitted on behalf on behalf of the first defendant that the
plaintiffs’
claim is prescribed in terms of section 11 of the
Act.
[19]
Regarding the question of law, Mr Boot submits that Professor
Loubser’s approach is inapplicable since it is against
the
legally-established principle that the obligation to demand payment
lies solely with the creditor.
[20]
He further submitted that the sole pillar upon which the plaintiffs
base their claim is section 19(2) of the Land Act, namely,
that the
first defendant should have first made a demand on the plaintiffs for
payment of the balance of purchase price with a
30 day notice period
before it would have been entitled to institute action for such
payment by the plaintiffs. He argued that
section 19(2) provision is
not applicable in
casu
, the reason being that the Land Act
does not apply to the facts and to the contract in
casu
and
further that the Land Act applies to contracts in terms of which the
payment by the purchaser to the seller is in more than
two
instalments over a period exceeding one year. It is submitted that in
casu
, the agreed instalment payment period was a period not
exceeding 5 (five) months and thus less than a year period.
[21]
It is further submitted that the first defendant’s reciprocal
right would have been the right to claim payment, which
right is
excluded in section 19(1) in so far as the first defendant elects not
to rely on an acceleration clause but enforces his
right in
accordance with the months in which the instalment fell due and was
not paid by the plaintiffs, that is, 7
th
May 2007, 7
th
June 2007 and 7
th
July 2007. The argument goes further
that since the first defendant opted not to enforce the acceleration
clause contained in Clause
6 of the Deed of Sale, then accordingly
section 19 of the Act would also not be applicable.
[22]
Regarding the argument that the obligation to demand payment is
reciprocal on both parties, Mr Boot argued that it is only
the
creditor who has the exclusive power to demand that performance be
made when the creditor so chooses. He refuted the suggested
application of the exception that the first defendant could have
accelerated the payment and tendered transfer, arguing that unless
the material condition was first fulfilled by the plaintiffs, there
is no way the first defendant would have been able to determine
the
due date. He submitted that the nature of the first defendant’s
right is such that a demand is not necessary since the
contract or
the Deed of sale specifies the date of performance or payment. He
concedes that since the Deed of sale is silent in
relation to the
date of transfer therefore the right to claim transfer became due on
date of signature.
[23]
Of much importance is the fact that Mr Boot disputes Mr Van Riedt’s
submission that the implied term between the parties
was that
transfer of the property would only be effected upon payment being
made by the plaintiffs, arguing that even from the
reading of the
Deed of sale, no reference is made that payment and transfer are
incidental to one another and further that there
is neither such an
express term. He argued further that neither have the plaintiffs met
the requirements regarding implied terms
and that even
Lambrecht
v Lyttleton Township (Pty) Ltd
1948 (4) SA 526
(T)
on which the plaintiffs rely was rejected by the SCA. In short,
Lambrecht
,
supra
refers to an instance where
none of the debts have been defined.
ISSUES FOR
DETERMINATION
[24]
Based on the above, the issues for determination are the following:
17.1 whether the
plaintiffs’ claim for specific performance of the transfer of
the property has prescribed;
17.2 whether the parties
have agreed or it was an implied term of the agreement that payment
and transfer would coincide; and
17.3 whether both parties
have a reciprocal duty to demand payment.
THE LAW
[25]
Section 11(1)(d) of the Prescription Act 68 of 1969 (“
the
Act”)
provides that
the periods of
prescription of debts shall be the following:
……
.
(d) save where an Act
of Parliament provides otherwise, three years in respect of any other
debt.’
[26]
Section 12 of the Prescription Act 68 of 1969 (“
the Act”)
provides that:
‘
(1) Subject to
the provisions of subsections (2) and (3), prescription shall
commence to run as soon as the debt is due.
CASE LAW
[27]
In the matter of
Trinity Asset Management v Grindstone
2018
(1) SA 94
CC
, the court held that as a general rule,
prescription begins to run when a debt arises, unless the parties
clearly stipulated otherwise.
Cameron J, in his majority judgment,
found that a demand was not a precursor for a prescription and that
in fact, the creditor
has the exclusive power to demand that
performance be made when the creditor so chooses.
[28]
In the matter of
Frieslaar NO and Others v Ackerman and
Another
[2018] JOL 39600
(SCA) at 28
the
court endorsed the principle that an obligation to do something
undertaken in terms of a contract when the contract is silent
as to
the time of performance, is a debt which becomes immediately
claimable or exigible at the instance of the creditor. Thus,
prescription commences to run from the date on which the contract was
concluded or in certain cases, within a reasonable time.
[29]
In the matter of
Phasha v Southern Metropolitan Local
Council of the Greater Johannesburg Metropolitan Council
2000 (1) All SA 451
(W),
Satchwell J, as she then was,
approved the principle that a right to claim performance under a
contract ordinarily becomes due according
to its terms or, if nothing
is set, within a reasonable time, which, in appropriate
circumstances, can be immediately. In this
matter the court held that
for a period of 13 years the applicant had failed to perform and they
now sought to rely upon their
own lack of conduct to postponing the
commencement of prescription. The court further held that if
creditors are allowed by their
deliberate or negligent acts to delay
the pursuit of their claims without incurring the consequences of
prescription, the purpose
of the
Prescription Act would
indeed be
subverted. It thus upheld the Special Plea of Prescription.
[30]
Regarding the question of the seller electing not to enforce the
acceleration clause, it was held in the matter of
Van Niekerk &
Another v Favel
[2007] JOL 20697
(SCA)
(Cloete, Navsa,
Scott JJA, NV Hurt, Kgomo AJJA) that
section 19
did not affect the
seller’s right to make an election as to which remedy it wanted
to enforce.
[31]
Regarding policy considerations, the Supreme Court of Appeal (SCA)
held the following in the matter of
Santam Ltd v Ethwar
[1998] ZASCA 102
;
[1999]
1 All SA 252
(A):
‘
One of the main
purposes of the
Prescription Act is
to protect a debtor from old
claims against which it cannot effectively defend itself because of
loss of records or witnesses,
caused by the lapse of time. If
creditors are allowed by their deliberate or negligent acts to delay
the pursuit of their claims
without incurring the consequences of
prescription, that purpose would be subverted.’
[32]
In the matter of
Van Vuuren v Boshoff
1964 (1) SA 395
(T)
,
Coleman J held the following:
‘
The Act was
designed to penalise the person who can enforce his claim by action,
but does not do so, and not the person who delays
taking action
because he is not yet able to do so.’
[33]
As was held by Van Der Westhiuzen J in the matter of
Road
Accident Fund & Another v Mdeje
2011 (2) SA 26
CC
,
‘
In the interest of social certainty and the equality of
adjudication, it is important, though that legal disputes be
finalised timeously……..For
claims not instituted within
a fixed time, a litigant may be barred from having a dispute decided
by a Court. This has been recognised
in our legal system – and
others, for centuries.
ANALYSIS
[34]
Foremost, it is common cause that despite the first defendant
alleging that the terms of the deed of sale were breached, the
Deed
of sale was never cancelled.
[35]
It is common cause that the plaintiffs’ claim is for the
transfer of the property against a tender of payment of the
outstanding purchase price is a contractual one. It is further common
cause that the plaintiffs’ submission that the first
defendant
was required to first make a demand on them for payment of the
balance of the purchase price with a 30 day notice period
before it
would have been entitled to institute action for the payment of such
balance against them (plaintiffs) is premised on
what they argue to
be the provisions of
section 19(2)
of the
Alienation of Land Act 68
of 1981
. With regard hereto I am of the view that the said provisions
are inapplicable given the fact that the payment period within which
the balance of the purchase price should have been made was supposed
to have been within 5 (five) months of the signing of the
Deed of
sale.
[36]
With regard to the provisions of
section 13(2)
of the
Prescription
Act, when
same are applied to the facts in
casu
, I am of the
view that the plaintiffs’ claim would have fell due and
claimable immediately upon signature of the Deed of
sale. However,
due to the provisions of section 13(2) of the Act, I am of the
further view that prescription would only have commenced
running as
from 7 July 2007 thereby finally prescribing on 7 July 2010.
[37]
Even if I was to favour the plaintiffs’ argument regarding
section 13(2) provisions of the Act that the first defendant
had a
reciprocal right to claim payment of the purchase price, I am of the
view that same would have become prescribed on or about
the 7th July
2010, invariably resulting in the plaintiffs’ claim becoming
prescribed on or about the 7th July 2010.
[38]
I now turn to the two exceptions which were raised by Mr Van Riedt
wherein I have been requested to make a finding. In respect
of
exception relating to the implied term that transfer of the property
would only be effected upon payment being made, having
scrutinized
both the Particulars of claim and the Deed of sale, there is nowhere
where I find reference being made that payment
and the transfer are
incidental to one another. I therefore am of the view that there is
no such an implicit or explicit expression
in the agreement. I may
further add that the plaintiffs even failed to discharge the
requirements regarding the facts upon which
such implied terms are
found. Moreover, the plaintiffs’ interpretation of Clause 7,
being the supposed basis on which the
implied term is alleged, was
also rejected by the SCA. Accordingly, I find that contrary to the
plaintiffs’ suggestion, there
is no factual basis upon which
such implied term is found in the agreement. It is my view therefore
that the alleged implied term
that payment and transfer coincide is
not applicable in
casu
.
[39]
With regard to the second exception, namely, whether there is a
reciprocal obligation from both parties to demand payment,
I am of
the view that it cannot be so since the plaintiffs’ performance
date was fixed and not the first defendant’s.
I am therefore
satisfied that indeed payment must first occur before transfer is
effected and that this does not in itself give
rise to a reciprocal
‘obligation’ on the part of the parties.
[40]
Mr Van Riedt concedes that the legal principle that a creditor should
not benefit out of his own inaction is trite. Given the
fact that I
have found against his suggested exceptions, I am of the view that
everything else becomes moot. On the whole I am
satisfied
[41]
It is common cause that the facts in
Phasha
supra
are similar to the ones in
casu
and the court found in
favour of the debtor (that would have been the first defendant in
this matter). Contrary to what this court
is invited to do, that is
to make a finding in respect of whether the plaintiffs’ delay
squared-off with the first defendant’s
alleged one in line with
Professor Loubser’s Publication, I find that my finding in this
regard would be moot. The reason
for same is due to the fact that in
his own submission, Mr Van Riedt submitted that almost every
decision, for a period spanning
over 30 years, our courts, including
the Constitutional Court, have applied and relied on an established
principle that a creditor
cannot delay prescription through his own
inaction at the debtor’s expense. The burden of delay, for lack
of a better term,
have been laid squarely on the shoulders of the
creditor and not the debtor. Moreover, even when it relates to the
passages from
Professor Loubser’s book Mr Van Riedt relied on
and thus referred this court to, he submitted that the Constitutional
Court
never relied on them in its reasons for judgement.
[42]
Taking into account the conspectus of the facts before me, I am
inclined to lean on the approach adopted by the SCA in
Uitenhage
Municipality v Molloy
[1997] ZASCA 112
;
1998 (2) SA 735
.
I find that
in casu
it is the plaintiffs who had the right to determine
when performance shall be made and that in considering policy, the
principle
that it would be undesirable of the creditor to be in a
position to defer the running of performance indefinitely by merely
refraining
from making a demand could not be truer.
[43]
Based on the above, I am of the view that it would be disingenuous of
this court to try and re-invent the wheel over an issue
which a trite
principle already established and applied by our courts, including
the Constitutional Court. Furthermore, when considers
the
ratio
held by the SCA regarding policy considerations in the matter of
Santam Ltd v Ethwar
[1998] ZASCA 102
;
[1999]
1
All SA 252
(A),
unless the purposes of the
Prescription Act were
jealously safeguarded, a debtor would never have the benefit and
certainty of being protected from old claims.
[44]
I am therefore persuaded that based on the reasons espoused above,
the plaintiffs’ action ought to fail. This conclusion
is
arrived at even after having considered the
Lambrecht v
Lyttleton Township (Pty) Ltd
1948 (4) SA 526
(T)
,
which, by the way, I find to be irrelevant based on the fact that,
inter alia
, it is based on the old Act and the fact that in
the Phasha decision, it was found not to be applicable anymore.
[45]
I am of the view that the plaintiffs’ counsel failed to advance
reasons as to why I should find that the underlying legal
principle
should not find application in this matter. I equally do not share
his view that there is no direct law applicable to
the facts before
me.
[46]
In
casu
, it is common cause that the plaintiffs by their own
conduct, have failed to make good on the payment of the purchase
price for
a period of almost 9 years. I am of the view that not only
have their claim prescribed, but policy considerations referred to
above
justify such a finding.
[47]
In the result I am satisfied that the plaintiffs’ claim ought
to be dismissed.
COSTS
[47]
Regarding the issue of costs, counsel for the first defendant prayed
for a costs order against the plaintiffs, including fair
reasonable
costs of travelling and disbursements, subsistence in respect of the
first defendant’s attorney and counsel from
Pretoria to
Kimberly on a High Court scale. Regarding the costs in respect of the
urgent application reserved as per the court
order dated 27 July
2016, he asked that same be awarded to the successful party.
[48]
Mr Van Riedt for the plaintiffs did not address me in this regard,
save for the prayed costs order in the Particulars of claim.
[49]
I am of the view that costs should follow the result.
CONCLUSION
[50]
In the premises, I make the following order:
ORDER
1. The Special Plea of
Prescription is upheld with costs, including fair reasonable costs of
travelling and disbursements, and subsistence,
in respect of the
first defendant’s attorney and counsel from Pretoria to
Kimberly, on a High Court scale.
2. The costs in respect
of the urgent application are awarded to the first defendant on terms
similar to Order no. 1
supra
.
___________________
Livhuwani Vuma
Acting Judge Northern
Cape High Court
Appearances
For
Applicants: Adv. R. Van Riedt
Instructed
by: Duncan & Rothman Inc.
For
1
st
Respondent: Adv. B. Boot
Instructed
by: Weavind & WeavindInc.
For
2
nd
Respondent: No appearance