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[2018] ZAKZDHC 9
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Basson and Another v Reddy and Others (11695/2017) [2018] ZAKZDHC 9 (30 April 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, DURBAN
CASE
NO: 11695/2017
In
the matter between:
CHESSLYNE
BASSON
First
Applicant
GAYLEEN
BASSON
Second
Applicant
and
RAMOLA
RUNAISHA
REDDY
First
Respondent
KUBEN
NAICKER
Second
Respondent
PROVINCIAL
COMMISSIONER FOR THE
SOUTH
AFRICAN POLICE
SERVICES
Third
Respondent
JUDGMENT
Chetty
J
:
[1]
The applicants launched an urgent application against the respondents
seeking interim relief in the following terms:
‘
2 (a) that the first and second
respondents are to permit the applicants and any estate agent and
prospective purchaser accompanying
the applicants, access to the
property situated at […] P. Road, Westville North,
KwaZulu-Natal, described as portion 2 of
Erf […] of Chiltern
Hills, Province of KwaZulu-Natal, between the hours of 08h00 and
16h00 on any weekday which is not a
public holiday, provided at least
24 hours’ notice of such intention to access the property is
given by either of the applicants
to either of the first or second
respondents;
(b) that the first and second
respondents, jointly and severally, the one paying the other to be
absolved, are directed to pay the
costs of the application.
3. That the South African Police
Services are to assist the applicants in the execution of this order
in so far as it may be necessary
to afford the applicants, and any
estate agent and prospective purchaser accompanying the applicants,
access to the property;
4. That the provisions of paragraph 2
(a) hereof are to operate as an interim order with immediate effect,
pending the return date
of the rule nisi.’
[2]
The application was opposed by the first and second respondents (to
whom I shall refer, for convenience, as the ‘respondents’
unless a particular act is attributed to either the first or second
respondent.). The third respondent was cited merely to ensure
the
effectiveness of any order issued. No order was sought against
it.
[3]
The respondents take issue with the urgency of the application. In
addition, they contend that the applicants are not entitled
to sell
the property to any other person as the applicants have already
entered into an agreement of purchase and sale of the property
(‘the
agreement’) with them (the respondents) and no breach of the
sale agreement has occurred justifying the repudiation
thereof.
According to the respondents, the attorneys attending to the bond
cancellation have been properly instructed to attend
to the transfer,
which process has been held up not by them but rather by the
applicants, who have delayed in the payment of certain
fees and who
have in the interim secured a higher offer for the property from a
third party.
[4]
When the matter came before K Pillay J on 9 October 2017, a rule nisi
was issued in terms similar to that in paragraph 2(a)
of the notice
of motion, pending finalisation or discharge of the rule. In light of
the opposition to the application, an order
was further granted
directing the first respondent to institute an application for the
transfer of the property in question within
20 days of the date of
the order.
[5]
Apart from opposing the relief sought by the applicants, the
respondents brought a counter application for the following
declaratory
relief:
‘
1a. That the agreement between
the applicants and the first respondent concluded on 22 June 2016,
being annexure B to the second
applicant’s founding affidavit,
is and continues to be valid and of full force and effect; and
b. The applicants are not entitled to
claim the said agreement has become null and void and of no force and
effect by reason of
the first respondent having obtained a loan of
90% of the purchase price, and not 100% of the purchase price, from
First National
Bank;
2. The applicants are directed to do
all things necessary to enable Ashnee Reddy & Associates / Ashnee
Rampaul & Associates
to proceed to cause the property to be
transferred to the first respondent in the records of the Registrar
of Deeds;
3. In the event of either of the
applicants failing to give effect to prayer (2) hereof, the Sheriff
of this Honourable Court is
authorised and directed to do all things
necessary, including the signing of any documentation, to give effect
to prayer (2) above;
4. The applicants are directed to pay
the costs of this counter application as well as the costs of the
application on a scale as
between attorney and own client;
5. Ashnee Reddy & Associates /
Ashnee Rampaul & Associates are directed, upon the property being
the registered in the first
respondent’s name, to retain the
sum of R 125,000 (one hundred and twenty five thousand rands) and to
account to the applicants,
in due course, after the first and second
respondents taxed or agreed costs of this application are deducted
therefrom.’
[6]
When the matter came before me, it was accepted by Mr
Veerasamy
and Mr
Reddy
,
who appeared for the applicants and the respondents respectively,
that the latter had paid the purchase price of R1,3 million.
The crux
of the dispute is that the first respondent only obtained a 90% bond
as opposed to a 100% bond, and that, according to
the applicants, the
period allowed in the agreement for compliance with the suspensive
condition (which is referred to further
below) had lapsed. The
respondent concedes that she secured a 90% bond, resulting in a
shortfall of R130 000. This shortfall
was duly paid to the
conveyancing attorney, within the period stipulated in the
agreement. She considered this to be part
of the purchase
price, as this amount was to be held in trust by the attorney. The
first respondent’s contention is that
while she did not secure
a 100% mortgage bond in respect of the property, the total purchase
price was nonetheless secured prior
to the cut-off date. As
such, it was argued, no breach of the agreement occurred justifying
the application by the applicants.
[7]
It is common cause that the applicants are the registered owners of
the property. They were divorced in September 2017,
but this
has no bearing on the issues before the court. The applicants
placed their property on the market for sale, upon
which the first
respondent submitted an offer to purchase. A purchase and sale
agreement was concluded on 20 June 2016.
In terms of clause 4
of the agreement, the purchase price agreed upon by the parties was
R1,3 million. In terms of clause 1.5,
the first respondent was to
obtain a loan secured by way of a mortgage bond over property for
100% of the purchase price within
21 days of the date of signature of
the agreement. Clause 5.4 stipulated that in the event of the
purchaser being unable to obtain
the loan against security of a
mortgage bond with the stipulated 21 days, the agreement would be
null and void and of no force
and effect. Clause 10 provided that the
purchaser would take occupation of the property upon registration of
transfer, or earlier,
by agreement between the parties.
[8]
It is not in dispute that the first respondent took occupation of the
property in June 2012 by agreement with the applicants.
There
was no agreement on payment of occupational rental as the parties
believed that the loan would be obtained without any problems.
What
also emerges from the papers is that the respondents had been in
occupation of the property for approximately 4 years prior
to
concluding the agreement, and during this time they paid the
municipal services bills, including rates, water and electricity.
[9]
Upon the applicants coming to the conclusion that the first
respondent had breached the agreement which thereafter was of no
force and effect, they instructed an estate agent to market the
property. They subsequently received a written offer on 17
August 2017 from a buyer known only as Solomon in the amount of R1,4
million. It is noteworthy that on the interpretation sought
for by
the applicants, the agreement with the first respondent lapsed 21
days from 20 June 2016. However, the papers are silent
as to when the
applicants had formulated this view, inasmuch as an offer on the
property was only received more than a year later
after the alleged
breach.
[10]
The applicant accepted the offer of Solomon, subject to him obtaining
access to the property within seven days of the acceptance.
Following
the securing of a loan by Solomon, the applicant’s attorneys
gave the respondents a month to vacate the property,
and stipulated
that during this period access to the property should be granted
unhindered to representatives of the bank and or
any other necessary
service providers. The estate agents who concluded the agreement
between the applicants and Solomon attempted
to access the property,
as did representatives from the bank. The respondents refused to
grant them access on the basis that they
had a valid agreement with
the applicants, which agreement was still in place, and as such, they
would not allow any third parties
to enter the property. They further
contended that their occupation of the property is with the consent
of the applicants, pending
the registration of the transfer of the
property.
[11]
On 28 September 2017, Solomon, the estate agent, and the first
applicant attempted to view the property but this visit had
to be
cancelled as they were refused access to the property. The applicant
attempted to secure the assistance of the police in
gaining access.
The latter, correctly in my view, indicated that they were unable to
intervene in what was essentially a
civil dispute between the
parties.
[12]
The applicants brought an urgent application asserting their right as
the owner of the property, and contending that they would
suffer
substantial prejudice if permission was not secured for the ‘new
purchaser’ to view the property, as the sale
with him could
collapse. They further contended that they would suffer irreparable
harm should an order not be granted, on the
assumption that they were
not likely to again receive an offer as favourable as that made by
Solomon.
[13]
The first respondent brought a counter application seeking
declaratory relief that the agreement concluded between her and
the
applicants on 20 June 2016 is and continues to be valid and of full
force and effect. The first respondent and her partner,
the
second respondent, and their three children have been living on the
property since 2012. She occupied the property as a tenant.
After concluding the sale agreement in June 2016, there was no
agreement regarding occupational rental.
[14]
As to the contention that the first respondent had breached the
provisions of clause 5.1 of the agreement in that they had
failed to
secure a mortgage bond for the total amount of the purchase price,
the first respondent contends that it was her election
whether to pay
the full purchase price by means of a mortgage bond secured through a
bank or whether to pay a portion thereof in
cash. As long as she
provided security for the total amount of the purchase price
stipulated in the agreement, the first respondent
contends that there
had been substantial compliance with the provisions of clause 5.1. It
is not in dispute that the first respondent
applied for a loan in the
sum of R1,3 million, and after consulting with the bank, she elected
to pay 10% of the purchase price
in cash, with the remaining 90%
secured through a loan from First National Bank.
[15]
On 28 June 2016, an amount of R130 000 was paid into the account of
the conveyancing attorneys, Ashnee Reddy & associates,
in cash.
On 30 June 2016, First National Bank furnished a written confirmation
of the loan for R1 170 000 to the first respondent
towards the
purchase price of the property, against security of a mortgage bond
registered over it. At 16h23 on 30 June 2016, the
conveyancing
attorney despatched an email addressed to the respondents and the
second applicant confirming that she had received
a ‘final
grant’, which I presume to be the security for the 90% of the
purchase price from the bank. The second applicant
was presumably
quite pleased, as a replying email from her confirms that she
conveyed the news to her father. Accordingly in the
mind of the
respondents, the purchase price had been secured within 21 days of
the date of the purchase and sale agreement having
been signed, and
accordingly they had been compliance with the provisions of clause 5
of the agreement. In light thereof, the respondents
adopt the view
that the agreement is valid and binding, which precludes the
applicants from securing a prospective purchaser of
the property of
which they are in the process of taking transfer. It bears noting
that the nature of such a guarantee was considered
in
Koumantarakis
Group CC v Mystic River Investments 45 (Pty) Ltd & another
[2008] ZASCA 53
;
2008 (5) SA 159
(SCA) para 24 where the court said:
‘
The nature of bank guarantees
in relation to the sale of immovable property is explained in various
authorities as follows: In a
sale of movables payment and transfer
should take place
pari
passu
. In a sale of land,
where large sums of money are usually involved, it is obviously
desirable to achieve the same result, since
the seller will be
reluctant to part with ownership of his land until he has the money
and the purchaser will be reluctant to part
with his money until he
has ownership of his land. It is thus necessary to resort to a device
in order to achieve as nearly as
possible, the desired reciprocity of
payment and transfer. The standard device is the furnishing by the
purchaser, when called
upon to do so by the seller's conveyancers who
are ready to lodge the necessary documentation, of a bank guarantee
payable on registration
of transfer, normally a revocable guarantee
unless the contract expressly calls for an irrevocable guarantee.
Generally guarantees
are required to be provided by a date in advance
of registration because the date of registration is not precisely
predictable.’
[16]
Far from accepting that they were in breach, the respondents lay the
blame for the delay in the transfer with the applicants,
pointing out
that the conveyancing attorney (Reddy) proceeded with due promptitude
to take steps to transfer the property into
the name of the first
respondent. The respondents point out that on 5 July 2016 Reddy wrote
to the second applicant requesting
proof of her address in Cape Town,
a municipal rates and services account, documentation from the South
African Revenue Service
in respect of the first applicant, his
contact numbers, email address, as well as a copy of the bond
statement on the property.
In addition Reddy requested the second
applicant make payment of her fees in respect of services rendered in
connection with the
cancellation of the bond. On 18 July 2016, Reddy
again wrote to the second applicant indicating that she is unable to
proceed with
the transfer if the existing bond on the property is not
cancelled, and that the delay was attributable to the second
applicant
not furnishing her with a copy of the bond statement.
Various emails followed from Reddy to the second applicant pertaining
to
her request for documentation to ensure that the transfer could
take place.
[17]
During the period that Reddy was awaiting the transfer documents from
the second applicant, Reddy attempted to secure the services
of an
electrician to provide the necessary certificate as a requirement for
transfer. The second applicant was unhappy with this
arrangement and
instructed her own electrical contractor. Although the work was
carried out in September 2016, payment by the second
applicant of
these monies only took place in March 2017. During this period, Reddy
also paid to SARS an amount of R19 350,
being in respect of the
transfer duty on the property.
[18]
On 27 July 2017, Reddy wrote to the applicants and the respondents
confirming that the only issue holding up the transfer was
a document
from the applicants’ attorneys. Once that came to hand, Reddy
indicated that she would be in a position to lodge
her documents at
the Deeds Office. After receipt of this email, the second applicant’s
father instructed Reddy to cancel
the sale. In an email shortly
thereafter the second applicant was more restrained and asked Reddy
not to cancel the sale
as ‘we are so close to the end’,
but asked that the purchasers (being the first respondent) be ‘placed
on terms
to avoid further delays’. The response from the second
applicant is telling as it conveys, at least on a balance of
probabilities,
that as at July 2017 she still considered there to be
an agreement between the applicants and the first respondent.
If she
was of the opinion that this agreement had lapsed and of no
force and effect, her response to Reddy would have been entirely
different.
Around the same time, Reddy received confirmation
from FNB that she could proceed to lodge the transfer documents at
the Deeds
Office.
[19]
It is not clear whether the second respondent or her father addressed
an email to Reddy contending that the respondents had
breached the
agreement, resulting in it being null and void. The upshot of this
was that Reddy caused an email to be sent to all
parties concerned on
17 August 2017 indicating that she was unable to proceed to register
the transfer. She confirmed that
at the time when she had been
contacted to cancel the sale, she had by then received the
confirmation from the bond cancellation
attorney and the bond
registration attorney that transfer duty had been paid and that she
was placed in possession of an electrical
compliance certificate, an
entomologist’s report and that payment had been made to both
the bond registration attorney and
the bond cancellation attorney.
[20]
None of these exchanges via email is disputed by the applicants, and
on the basis of the rule in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) the version of the respondents must prevail.
[21]
The applicants in their reply contend that the respondents have
deliberately dragged their heels in the matter in order to
avoid
paying occupation rental. This is in direct contrast to the
position adopted by the second applicant in her founding
papers. It
is a new matter in reply, of which the respondents have not been
afforded an opportunity to respond. I am of the
view that this
is not an issue before me and according take no account of it. The
only issue requiring a determination in this
court is whether the
respondents have breached the purchase and sale agreement, entitling
the applicants to market the property
to prospective purchasers.
[22]
On careful consideration of the issues to be determined on the
papers, and the contention in the applicants’ heads of
argument
that there are no material disputes of fact, prior to the hearing I
indicated to counsel that I would require the attendance
at court of
the conveyancing attorney, Ashnee Reddy, and her input particularly
with regard to the payment which she received from
the second
respondent and what she construed this payment to be. Despite
attempts by both counsel to secure her attendance at court,
Reddy
indicated that she was unavailable due to urgent family matters. She
did however depose to an affidavit, the contents of
which were not
disputed by the applicants, save for paragraph 14 in which Reddy
states that upon the deposit being paid to her,
she informed the
applicants of this, and which they accepted. She avers that the funds
paid to her are held in her trust account.
This averment has been
placed in dispute, although the basis therefor is unknown to me.
[23]
The affidavit from Reddy confirms that she was appointed as the
transferring attorney in terms of clause 2 of the agreement
and that
she received payment into her trust account of R130 000 on 28
June 2016 from an entity known as Inyameko, on behalf
of the first
respondent. She categorically states that the amount was paid as a
10% deposit towards the purchase price of the property
in question
‘and for no other purpose or reason’. The amount of
R130 000 remains in her trust account to date.
In response to
the enquiry from the Court as to whether she had a mandate to receive
the amount of R130 000 as part payment
of the purchase price,
Reddy stated that as the conveyancing attorney, she considered that
she required no mandate from the parties
and that she was entitled to
receive payment even by way of a cash deposit. At no stage, according
to Reddy, did the applicants
object to the deposit being paid into
her trust account as part payment of the purchase price. On the
contrary, she was of the
view that all parties were happy that the
total purchase price had been secured within the 21 day period
stipulated in the agreement.
The applicants take issue with
Reddy’s averment that she informed them of the payment of the
deposit a few days after
it was made.
[24]
The contention of the applicants is that the payment of the purchase
price was not in accordance with the terms of the contract
which
stipulated the purchase price being secured 100% by way of a mortgage
loan. Upon FNB informing the first respondent
that she would
not obtain a loan for the full amount of R1,3 million, the applicants
contend that the first respondent could not
satisfy the requirement
of the suspensive condition in clause 5.1, and importantly, the
agreement contained a non-variation clause
(clause 17). It was argued
in the alternative that as the agreement relates to the alienation of
land, the contention that the
agreement permitted an oral or tacit
variation, offends against the provisions of
section 2(1)
of the
Alienation of Land Act 68 of 1981
, which requires that such
agreements
must
be in writing.
[25]
Mr
Veerasamy
submitted that the respondents’ argument of substantial
compliance, based on the 90% bond together with the 10% paid in cash,
could not be sustained as is was contrary to the
Shifren
rule
[1]
to the effect that where
a contract provided for no variation of its terms other than in
writing, any oral alteration of those
terms would be of no force and
effect. The applicants based their case on the ratio in
Kovacs
Investments 724 (Pty) Ltd v Marais
2009 (6) SA 560
(SCA) and emphasised what was set out by Mpati P at
para 22 where he stated the following:
‘
As
was said in
Van
As v Du Preez
“(a)n oral variation masquerading as or in the guise of a
waiver remains what it truly is”. It remains a variation.
To
hold otherwise, the court concluded, “would be to render
nugatory the principle of the effectiveness of contractual
entrenchment
as laid down in
Shifren’s
case”. …The amended agreement, therefore, would not
comply with the provisions of the legislation which required an
agreement for the sale of land to be in writing. ….The alleged
tacit agreement would be contrary to the provisions of
s 2(1)
of
the
Alienation of Land Act.
’
[26]
In light thereof, counsel submitted that irrespective that the full
amount of the purchase price may have been secured before
the 21 day
cut-off period, the parties could not have agreed to such a variation
(of a part cash payment) unless it had been reduced
to writing.
Even if such a variation were found to be sustained, it was contended
that this would fall foul of the requirement
in
s2
of the
Alienation
of Land Act. For
all of those reasons, the applicants contend
that the application must succeed and the counter claim must by
necessary implication,
fail.
[27]
Mr
Reddy
argued, however, that that the facts in
Kovacs
were distinguishable from the facts in the present case. As to
the argument that the 10% cash payment constituted an impermissible
variation of the written sale agreement, the court in
Kovacs
said the following at para 21:
‘
Here,
the appellant seeks to claim that it has substantially performed when
it could raise a loan only in an amount less than that
stipulated in
the written agreement. Jonker [the managing director of the
appellant] makes no averment whatsoever, in any one of
his
affidavits, of an agreement as to how and when the deficit of almost
R500 000 would be payable. He suggested that he would
have obtained
the full amount through his giving the bank additional security, but
nowhere was it alleged that the respondent was
aware of this
possibility, or that the bank would in fact have approved a loan for
the full amount. Thus, in my view, the change
to the quantum of the
loan approved by the bank is not a waiver but an amendment to the
condition which does result in the contract
being altered.’
[28]
I agree that the facts in this case differ from those in
Kovacs
.
The question which arises in this case is, irrespective that the
purchaser has secured the full amount of the purchase price
of the
property, albeit in a manner contrary to the stipulations set out in
the contract and in circumstances where the variance
attracts no
prejudice whatsoever to the seller, has the purchaser discharged her
contractual obligation? Did the resort by
the purchaser to
securing the remaining 10% of the purchase price, by means of a cash
deposit into the conveyancing attorney’s
trust account, amount
to an impermissible variation? I agree with counsel for the
respondent that to adopt such an approach,
in the facts of the
present matter, would amount to an absurdity. In
Kovacs
the court at para 20, referred to the decision in
Van
Jaarsveld v Coetzee
1973 (3) SA 241
(A) where a sale of land agreement required the
purchaser to obtain a loan from the Land Bank. Instead, the purchaser
obtained
a bank guarantee for the stipulated amount. In
rejecting the argument that the agreement had lapsed because the
purchaser
had failed to secure a loan in the manner stipulated in the
agreement, the court noted that such an interpretation would lead to
an absurdity, and specifically referred to the proposition of whether
a seller had a right to refuse a cash payment by the purchaser
instead of a loan from a bank, and then to contend that the agreement
was null and void.
[29]
Counsel for the respondents submitted that the suspensive condition
in the agreement was present for the benefit of the purchaser
and as
such, she could unilaterally waive the protection of the condition on
or before the cut-off date of 21 days from date of
signature, by
paying the purchase price in full either in cash or a portion thereof
in cash with the remainder secured through
a bank mortgage. See
Eloff
& another v Dekker
(2197/2006)
[2007]
ZAWCHC 71
(28 November 2007) where Meer J stated at para 57 that a
bond clause
‘…
is
for the exclusive benefit of the purchaser and is capable of
unilateral waiver provided that such waiver takes places before
the
date for fulfilment of the condition’.
[30]
In
Coetzee
v van der Walt
(2589/2004)
[2004] ZAFSHC 112
(25 November 2004),
the
court affirmed the decision in
Mia
v D J L Properties (Waltloo) (Pty) Ltd & another
2000 (4) SA 220
(T) holding in para 11 that a suspensive condition
which required the purchaser to obtain a loan from a bank or other
financial
institution within 30 days of the date of the agreement
could be waived by the purchaser before the 30 day period ‘by
raising
the purchase price in whatever way he wanted, pay it in cash
or providing guarantees for its full value.’ On the facts
in
Coetzee
,
however, the court found that as neither the deposit nor the
guarantees had been furnished within the requisite period, there
could be no waiver of the suspensive condition after the cut-off
date.
[31]
To the extent that the affidavit of attorney Ashnee Reddy is evidence
of a waiver of the terms of the agreement and in particular
of the
suspensive condition, counsel for the applicants submitted that no
reliance could be placed on the decisions in
Coetzee
and
Mia
in that the purported waiver took place outside of the 21 day period
referred to in the agreement. In this regard counsel
referred
to an averment by the applicant in her replying affidavit to the
effect that the ‘First respondent has not made
any averment
whatsoever, in any of her affidavits, of an agreement in writing as
to how and when the deficit of R130 000 would
be payable.’
[32]
I am not persuaded by this argument and it is in direct conflict with
the affidavit of the conveyancing attorney who confirms
that she
received the R130 000 before the 21 day cut-off period and that
she construed the payment to constitute a deposit
or part payment of
the total purchase price. It must be borne in mind that the
conveyancing attorney was appointed by the
applicants in terms of the
purchase and sale agreement. She acts without favour to either
the buyer or the seller.
Moreover, in terms of the second
applicant’s own email dated 27 July 2017, she urged the
conveyancing attorney
not
to cancel the sale agreement. This email is destructive of the
applicants’ case. This, together with the correspondence
from
the conveyancing attorney to the applicants, in which persistent
reminders were made to comply with requests to furnish various
documents necessary to enable the transfer to take place, suggest
that if blame is to be attributed, it would fall heavily on the
side
of the applicants.
[33]
In any event, in light of the authority to which I have been
referred, I am satisfied that the respondents discharged their
obligations timeously in terms of the contract and that no basis
existed in law for the grant of the relief sought by the applicants
to declare the agreement null and void. The main application
falls to be dismissed with costs. Conversely, the respondents
brought a counter application for a declarator that the agreement
with the applicants remains valid and of full force and effect.
It follows that in light of the main application failing, the counter
application must succeed. No argument was addressed
to me
regarding the relief in the counter application for Ashnee Reddy to
retain the sum of R125 000 after registration of
the property
into the name of the first respondent, nor can I find any averment in
the papers canvassing this aspect. I therefor
decline to make
any order in that regard. The respondents (applicants in the
counter application) sought that the main application
be dismissed
with attorney client costs and that the counter application be
granted with costs on the same scale. I am not
satisfied that
costs on a punitive scale are warranted in this matter.
[34]
In the result I make the following order:
(a)
In the main application, the rule issued on 9 October 2017 is
discharged with the costs, including those incurred on 9 October
2017
and 28 November 2017, to be paid on a party and party scale by the
applicants, the one paying the other to be absolved.
(b)
In the counter application:
(i)
a declarator be and is hereby issued that the agreement between the
parties marked “B’ to the second applicant’s
founding affidavit, concluded on 20 June 2016, remains valid and of
full force and effect.
(ii)
the applicants (in the main application) are directed to do all
things necessary to enable Ashnee Reddy & Associates to
proceed
to cause the property to be transferred to the first respondent in
the records of the Registrar of Deeds;
(iii)
in the event of either of the applicants (in the main application)
not giving effect to (ii) above, the Sheriff is authorised
and
directed to do all things necessary, including the signing of any
documentation, to effecting the transfer in (ii) above;
(iv)
the counter application succeeds, with costs thereof to be paid by
the first and second respondents (the applicants in the
main
application) on a party and party scale, the one paying the other to
be absolved.
____________________
M
R CHETTY
Appearances
:
For
the Applicant:
Mr I Veerasamy
Instructed
by: Rajespree Naidoo & Associates
Umhlanga
Ridge
Tel:
031 566 3680
For
the Respondent:
Mr G Reddy
Instructed
by: Rodney Reddy & Associates
Windermere,
Durban
Tel:
031 312 2049
Date
of Hearing: 02 March 2018
Date
of Judgment: 30 April 2018
[1]
See SA Sentrale Ko-op Graanmaatskappy
Bpk v Shifren en andere
1964
(4) SA 760
(A), approved
in Brisley v Drotsky
2002 (4) SA 1
(SCA).