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[2017] ZAFSHC 54
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Phepeng and Another v Estate Late Ame Combrinck and Others (792/2017) [2017] ZAFSHC 54; 2017 (4) SA 266 (FB) (23 March 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case number:
792/2017
In
the matter between:
BRADLEY
THATO PHEPENG
1
st
Applicant
RETHABILE
PATENTLY PHEPENG
2
nd
Applicant
and
THE
ESTATE LATE AME COMBRINCK
1
st
Respondent
STEYN
MEYER ATTORNEYS
2
nd
Respondent
THE
REGISTRAR OF DEEDS
3
rd
Respondent
THE
MASTER OF THE HIGH COURT
4
th
Respondent
CORAM:
NICHOLSON,
AJ
HEARD
ON:
16 MARCH 2017
JUDGMENT
BY:
NICHOLSON, AJ
DELIVERED
ON:
23 MARCH 2017
[1]
1st and 2nd Applicant seek confirmation of a
rule
nisi
granted on 17 March 2017 by this court and transfer of
the property, Sectional Title no. 2 in the Scheme SS Okapi (20/1987),
situated at [...] L. A.. Fauna, Bloemfontein, Free State (the
property) by the 1
st
and 2
nd
Respondents into their names.
[2]
It is Applicants’ case that the first Respondent owns the
property and, through the agency of Ms. Cecile Strydom, daughter
of
the late AME Combrinck (the deceased), listed same for sale with
Leapfrog Estate Agents in Bloemfontein.
[3]
Applicants made an offer to purchase said property at a price of R
665 000.00 and said offer to purchase was accepted.
The
offer was subject to the suspensive condition that Applicants secure
a bond for the purchase price within 30 days of the acceptance
of the
offer, that is, on or before 10 November 2016. (Clause 4.1.1).
[4]
The Applicants assert that the suspensive condition was fulfilled
when ABSA bank sent a letter in which they offered the required
loan.
The 1
st
Respondent, through its agent, Ms. Strydom, was
duly notified of the offer in writing on 3 November 2016. On 10
November
2016 the 1
st
Applicant notified the bond
originator, the Estate Agent, of his acceptance of the offer from
ABSA Bank and that he would follow
up on this acceptance the
following day.
[5]
The Applicants, with the knowledge they had secured financing for the
purchase price, then pursued the 1
st
Applicant’s employer, ESKOM, for a competitive offer and
requested the 1
st
Respondent to give them a longer period within which to ascertain
whether or not the employer was able to make an offer on better
terms
with regards to interest than the ABSA Bank offer already received.
[6]
The 1
st
Respondent indicated that it was unwilling to extend the timeframes
and that the contract of sale had been voided for non-fulfillment
of
the suspensive condition and the property had in fact been sold to a
new buyer to whom Respondents now seek to transfer the
property.
[7]
There is no doubt that the Respondents were represented by Ms.
Strydom in the sale of the property or that the Applicants made
an
offer to purchase, which offer was accepted. There is only one real
question before the court and that is whether or not the
contract of
purchase and sale between the Applicants and the 1
st
Respondent was perfected by timeous fulfillment of the suspensive
condition contained in clause 4.1.1 & 4.1.2. of the offer
to
purchase.
[8]
Should the court find that the contract was perfected, the Applicants
would be first in time and thus strongest in law and entitled
to
transfer of the property into their names in accordance with the
contract.
[9]
Applicants assert that the offer received from ABSA Bank Ltd. to lend
the money sufficed to perfect the contract and that their
indication
of their acceptance of the offer on 10 November by e-mail to the bond
originator in the person of the estate agent,
places the matter
beyond any doubt. Applicants assert that the 1
st
Respondent, probably on advice from the second respondent, and
motivated by the higher purchase price offered by the purported
subsequent buyer(s) of the property, denied fulfillment of the
suspensive condition and subsequent transfer of the property in
accordance with the contract with the Applicants, claiming that it
had lapsed.
[10]
Clause 19 of the contract between the Applicants and 1
st
Respondent provides that, should the purchaser not comply with the
terms and conditions of the contract they must be given 7
days written notice to do so, where after, upon failure to comply,
the seller may,
inter
ali
a,
unilaterally cancel the agreement and may retain any sums already
paid in terms of the contract as a penalty. Applicants
assert
that no such notification was given and thus 1
st
Respondent had no right to cancel the contract.
[11]
1st and 2
nd
Respondents argue that the court should not
grant the Applicant’s request for a final interdict. They
contend that
for the application to succeed, the applicants must
prove that they have a clear right, that they have suffered or
reasonably apprehend
they may suffer an injury and that there is no
suitable, alternative, ordinary remedy available to them.
[12]
The 1
st
and 2
nd
Respondents argue that as the suspensive condition in the contract
was not fulfilled timeously, the contract never came into existence
and the Applicants have no legal right upon which to found the
application. They assert that the contract lapsed after the
30
day period within which the Applicants were to secure a bond had
passed without them having provided a letter of offer, a quotation
and a pre-agreement from the financial institution as indicated in
clause 4.1.2 of the agreement.
[13]
1
st
and 2
nd
Respondent thus contend that the contract never came into existence
because the suspensive condition was not fulfilled. The contract
lapsed and thus there was no basis to assert that the 1
st
and/or 2
nd
Respondent had to give the Applicants notice in terms of clause 19 of
the contract. The contract had no force and effect
until the
condition was fulfilled and, although there was a clear contractual
relationship between the parties based on the accepted
offer to
purchase, the contract did not become enforceable as the condition
was not met. (See Miller JA, in
Palm
Fifteen (Pty) Ltd v Cotton Tail Homes (Pty) Ltd
1978 (2) SA 872(A)
at 887 C-D)
[14]
There is no doubt that the offer to purchase was made and
accepted by the executrix of the Estate and that a contractual
obligation arose between the parties for the 30 day period that was
afforded the Applicant to secure the necessary financing.
[15]
It is also common cause that the bond originator advised the agent
for the respondents that a bond had been secured on 1 November
2016
in a communication that also indicated that Applicants were
negotiating further for a better interest rate. The response
to
that communication simply stated that the Respondent foresaw that it
was unlikely the matter would be completed before the end
of the
year.
[16]
On 16 November Ms. Strydom was again informed that the loan had been
approved but that Applicants sought a little longer to
determine
whether or not they could secure a better interest rate from ESKOM,
at which time the request was declined and the indication
was given
that there were other buyers being taken to view the property who
might, and indeed did, make a better offer which Respondents
accepted.
[17]
The Applicants’ confirmation on 10 November 2016 that they
would accept the ABSA loan offer in order to comply with the
suspensive condition clearly reflected their bona fide belief that
they had met the requirements set by the suspensive condition
and
that they had now secured their purchase.
[18]
The court is urged by the 1
st
and 2
nd
Respondents to apply a strict interpretation of the suspensive
condition and its wording, as demanded in
Maitland
v Frumer
(1954 (3) SA 840
(A) at 850). (See too:
Mia
v DJL Properties (Waltloo) (Pty) Ltd and Another
2000(4)
SA
220 TPD 228
E-F, which case relied on
Worman
v Hughes and others
1948
(3) SA 495
at 505 in which the court was urged to consider, not the
intention of the parties to the contract but their intention as
expressed
in the contract.) They contend that such an
interpretation would compel the court to find that the condition was
not fully
complied with in that no quotation or pre-agreement
accompanied the loan offer as required.
[19]
It should be noted that the wording of the condition does not require
that the loan offer and the quotation and pre-agreement
be supplied
to the seller but, indeed to the purchasers of the property. (Clause
4.1.2 “… and provides
the purchaser with…”).
The reason for this being that the suspensive condition is included
for the protection
of a purchaser who must obtain financing for his
purchase. It was thus in the discretion of the purchasers to regard
the condition
as having been fulfilled.
[20]
The purchaser has a discretion with regards to the loan offer and
may, in terms of the same clause accept a lesser amount tendered
by a
financial institution. It would thus seem rather artificial to state
that the purchaser could not accept the loan offer without
further
documentation. In fact, the contract nowhere requires that the seller
be party to the loan negotiations at all.
[21]
The 1
st
and 2
nd
Respondents could have drawn the non-compliance with the strict
wording of the offer to the attention of the Applicants in terms
of
clause 19 of the offer to purchase but failed to do so, despite the
fact that the Applicants clearly viewed the contract as
having been
perfected by the loan offer they had received.
[22]
The suspensive condition contained in clause 4 of the Offer to
purchase is for the Applicants’ protection. They clearly
waived
any protection the further requirements stated in the condition
offered on 10 November 2016, when they e-mailed their bond
originator
and indicated acceptance of the loan offer from ABSA Bank. Thus, the
Court is convinced that the suspensive condition
was fulfilled by
acceptance of the loan offer on 10 November 2016 with the effect that
the contract became of full force with retrospective
effect, on the
date on which the offer to purchase was accepted. (
First
National Bank of SA v Lynn N.O.
[1995] ZASCA 158
;
1996 (2) SA 339
(A))
[23]
As regards the requirements for the granting of a final interdict, in
Stellenbosch
Farmers’ Winery Ltd v Stellenbosch Winery (Pty) Ltd
1957 (4) SA 234
(C) at 235 it was indicated that, in the presence of
a dispute of facts, a final interdict may only be granted in motion
proceedings
where the court finds that the facts stated by the
Applicant, taken together with the admitted facts in the Respondent’s
affidavit, support such a finding. This is such a case.
The
Stellenbosch
Farmer’s Winery case supra
was followed in,
inter
alia, Plascon-Evans Paints v Van Riebeeck Paints
[1984] ZASCA 51
;
(1984
3 SA 623
(A)) which goes further (on p 634) and indicates that
the court must determine whether or not a real dispute of fact exists
that requires the matter to be referred for oral evidence. In
making this determination, it is incumbent on the court to
take a
robust, common sense approach and decide an issue on affidavit, even
when it may be difficult to do so. (
Room
Hire Company (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949(3) SA 1155 (T) 1163-1165;
Da
Matta v Otto N.O
1972
(3) SA 858
(A) 882 D-H)
[24]
It seems clear to the court that the suspensive condition in the
contract was included for the protection of the purchaser.
The
Purchasers were happy to accept the letter of offer from the bank as
sufficient proof of the bank’s willingness to make
the funds
available and thus the condition was effectively complied with.
The Purchasers effectively waived further documentation
from the Bank
as a condition precedent. The Purchasers were under no
obligation in terms of the strict wording of the clause
to supply any
of the documentation with regards to the loan to the Respondents in
this matter.
[25]
The facts averred to by the Applicants in their affidavit and
supported by the information admitted in the Respondents’
affidavits suffice to allow the Court to make a determination in this
matter without referring the matter to oral evidence.
[26]
The only real dispute relates to whether or not the suspensive
condition was fulfilled and the Court is satisfied that a ruling
in
this regard can be made without reference to further evidence.
[27]
The Court has determined that the suspensive condition in the
contract was fulfilled and that the contract came into full force
and
effect. Thus establishing the clear right that the Applicants
have to claim a final interdict in this case.
[28]
In light of the above, the Applicants’ apprehension that they
may suffer an injury should the final interdict not be
granted, has
been established.
[29]
As no damage has as yet been suffered by the Applicants, and an order
for specific performance in terms of the contract of
purchase and
sale would prevent such damage from manifesting, it appears patent
that there is no other satisfactory or appropriate
remedy available
in this case.
In
light of the above, the Court confirms the rule nisi issued on 17
February 2017 and orders:
1.
That the
1
st
and 2
nd
Respondents transfer the property: Sectional Title no. 2, in the
scheme known as SS Okapi, 920/1987), situated at [...] L. A.,
Fauna,
Bloemfontein, Free State into the names of the Applicants within 30
days of date of this order; and
2.
That 1
st
Respondent pay the costs of the application.
_________________
C.
NICHOLSON, AJ
On
behalf of Applicants: Adv. D.M. Grewar
Instructed
by:
Mthembu & Van Vuuren Attorneys
10
Gun St.
Universitas
Bloemfontein
On
behalf of Respondents: Adv. E. Lubbe
Instructed
by:
Steyn-Meyer Attorneys
68
Jan van Riebeeck St.
Thaba
‘Nchu