About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2017
>>
[2017] ZAFSHC 174
|
|
Msuthu N.O. and Another v Motlouwa and Others (1855/2015) [2017] ZAFSHC 174 (27 October 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1855/2015
In
the matter between:
DINGANE
SIMON
MSUTHU
N.O.
1
st
Applicant
DINGANE
SIMON
MSUTHU
2
nd
Applicant
and
MOTLOUWA
ELIAS VICTOR
MATSHIDISO
LEBEKO
1
st
Respondent
ANY
OTHER OCCUPIER OF ERF [....], T.,
DISTRICT
WELKOM, FREE STATE
PROVINCE
2
nd
Respondent
MATJHABENG
LOCAL
MUNICIPALITY
3
rd
Respondent
HEARD
ON:
03 AUGUST 2017
JUDGEMENT
BY:
MATHEBULA,
DELIVERED
ON:
27 OCTOBER 2017
[1]
This is an application in which the applicants asks for an order that
the contract entered into by the parties is void
ab initio
alternatively be declared validly and legally cancelled by the
first applicant (the "deceased"). In the event that I make
the determination in favour of the applicants on any or both of the
relief sought, the first and second respondent(s) be declared
illegal
occupiers of Erf [...] M. S., Thabong, Welkom and liable to be
evicted from the said premises.
[2]
The factual background to this application is largely common cause
between the parties. Sometime in 2006 Mahlapane Catherine
Msuthu
(deceased) acquired the aforementioned property which was
subsequently registered in her name and held by Deed of Transfer
TL
20139/2006. On 20 January 2010, the deceased and the second applicant
married each other in community of property. It appears
that on 13
December 2011, the deceased and the first respondent concluded a
written contract for the sale of Erf [...] M. S., Thabong,
Welkom.
[3]
The salient terms of the Memorandum of Agreement made and entered
into by and between them are the following:-
"2.
PURCHASE PRICE
The
purchase price is the sum of
3.
PAYMENT OF THE PURCHASE PRICE
The
purchase price shall be paid in the following:
3.1
The amount of R10 000,00 as deposit.
3.2
The outstanding amount of R190 000,00 shall be immediately paid to
the Seller after
the final settlement of Sunmultiserve.
3.3
If the multiserve delays agreement will be reviewed by both parties.
6.
BREACH OF CONTRACT
In
the event of the Purchaser failing to comply with any of the terms of
this Agreement, the Seller shall be entitled to give the
Purchaser
written notice to comply with the agreement within fourteen (14) days
failing which the Seller shall be entitle to either:·
6.1
enforce the agreement by claiming payment of the full balance of the
purchase price
which may be owing together with interest at 15,5% per
annum on such amount as may be in arrears to date of payment;
6.2
to cancel the agreement by means of written notice to the Purchaser
and to return
all monies paid thus in respect of the Purchase as
agreed damages.
7.
WHOLE AGREEMENT
It
is hereby recorded by the parties that this contract contains
the whole agreement between them and no addition thereto
shall be of
any force and effect unless it be done in writing and
both parties.
10.
PURCHASER OBLIGATIONS
10.1
Until transfer of the property hereby sold has been registered
in the name
of the
Purchaser shall registration of transfer pay rates and taxes, water,
electricity and sanitation
charges and other local authority charges
levied on the property strictly on due dates".
[4]
The first respondent reneged on the agreement pertaining to payment
of the agreed purchase price. The parties agreed that the
first
respondent must pay the sum of R500,00 per month with effect from
January 2012. The parties entered into another review reduced
to
writing as Memorandum of Agreement on 9 September 2013. According to
the aforesaid document, the parties agreed to increase
the monthly
payment to R1000,00 per month from the stated date. The first
respondent once more failed to perform by not making
the necessary
payments. This prompted the applicant to cause her attorney to remit
a letter to the first respondent cancelling
the agreement and
instructing him to vacate the property on/or before the 20
th
March 2014. The first respondent also instructed his attorney
to write a letter to the attorney of the deceased resisting
this
move.
[5]
I am called upon to resolve the deadlock which culminated in this
application. The pertinent issues to be determined are twofold
ie:-
whether the contract entered into is
void ab initio,
and if
not, whether the deceased has cancelled the same. In the event of
finding in favour of the applicants, the first and second
respondent(s) be declared illegal occupiers and that they be evicted
from the property.
[6]
The contention of Mr Greyling, for the applicants, is that the
contract is insufficient and vague to comply with the relevant
Act.
In essence the contract is open ended in that the essential term
regarding method of payment still had to be negotiated in
the future
as recorded in paragraph 3.3 of the purported contract. It can
therefore not be relied upon with certainty. I am inclined
to agree
with him. Me Pedzisai submitted that the contract was not void
ab
initio
and argued that there were minor issues which could
be cured. I pause to mention that there is no application for
rectification
of the contract that served before me. I was not
referred to any underlying principles as authority fortifying this
argument and
I find it to be unsound.
[7]
Matters of this nature are governed by the Alienation of Land Act 68
of 1981 (the "Act"). Section 2 (1) of the Act
provides:-
“
2
Formalities in
respect of
alienation of land
(1)
No alienation of land after the commencement of this section
shall, subject to the provisions of section 28, be of any force or
effect unless it is contained in a deed of alienation signed by the
parties thereto or by their agents acting on their written authority.
Section
6 reads as follows:-
11
6
Contents
of contr
a
ct
(1)
A contract shall
contain
(a)
…
(b)
…
(c)
…
(d)
...
(e)
the amount of the purchase price;
(f)
...
(g)
the amount of each instalment payable under the contract
in reduction or settlement of the purchase price and interest (if
any);
(h)
the due date or the method of determining the due date of
each
instalment;
(i)
..
.
(j)
...
(k)
...
(l)
the place where the payments shall be made
[8]
Section 5 further gives the purchaser the power to elect the language
in which the contract shall be drawn up. Section 6 stipulates
that
the contract shall contain the amount of the purchase price as well
as the due date or the method of determining the due date
of each
instalment. All the essential elements of the contract must be in
writing. It is trite that the amount, due date and method
of payment
comprises essential elements of the contract. It stands to reason
that if the material term is left over for further
negotiations,
there can be no talk of a valid contract.
[9]
The formal requirements dealing with a contract of this nature where
succinctly discussed and conclusively accepted in
Dijkstra v
Janowsky 1985 (3) 560 (C)
at
564 G-H
and
565 A
as
follows:-
"In
regard to these requisites certain legal principles have been settled
by
our Courts:
(i)
The whole contract
-
or at least all the material terms
-
must be reduced to writing
(Johnston v Leal
1980
(3) SA 927
(A) at 937C - G).
(ii)
The Court must be able to ascertain with reasonable certainty
the terms of the contract. As COLMAN J stated in
Burroughs
Machines Ltd v
Chenille Corporation of SA
(Pty) Ltd
1964 (1) SA 669
(W) in a passage cited with
approval in
Clements v
Simpson
1971
(3)
SA
1
(A)
at
7E: "inelegance,
clumsy draftsman ship or loose use of language in a commercial
document purporting to be a contract will not
impair its validity as
long as one can find therein, with
reasonable
certainty, the terms necessary to constitute a valid
contract".
(iii)
There is no valid contract where a material term has
not been finally agreed upon, but is left open for further
negotiations
(Jammine v
Lowrie
1958 (2) SA
430
(T)
and authorities there cited).
(iv)
The material terms are not confined to the
essentialia
of the
contract of sale
(Johnston's
case
supra
at
937H).
(v)
The manner of payment is ordinarily
a material
term
(Patel
v Adam
1977 (2) SA 653
(A) at 666A- C)".
This
was cited with approval in
Chretien v
Bell
2011 (1)
SA
54
(SCA) at 56 H-J
and
57 A-C.
[10]
The document purporting to be the embodiment of the contract between
the parties is poorly drafted. It is couched in an ambiguous
manner
and a language suggesting in particular a suspensive condition. It is
important to note that the main purpose of the
Act (drawing
from its predecessors) had amongst its objects the possible
prevention of disputes, uncertainty and malpractices.
This is the
main reason why the entire contract must be contained in the
written contract. The omission to record the price
renders the
contract invalid and of no force and effect. The same goes for the
omission regarding the mode of payment which will
simply mean that
there is no valid sale.
[11]
In
Hartland lmplemente (edms) Bpk v Enal Eiendomme Bk en andere
2002 (3) SA 653
(NC) at 667 H-1
the court emphasised these
requirements and held as follows:-
"Toegepas
op die onderhawige saak sal dit meebring dat die koopprys sowel as
die wyse van betaling daarvan, in die skriftelike
dokument
waarin die vervreemdingsakte vervat is, bepaal en behoorlik omskryf
moet wees, of dat
'n
formule daaruit blyk waarkragtens dit met
redelike sekerheid objektief bepaal kan word sonder
‘
n
verwysing
na
getuienis
van
die mondelinge
consensus
tussen die partye. By
gebreke daaraan sal die kontrak ongeldig en onafdwingbaar wees vanwee
nie nakoming van die bepalings
van opskrifstelling
soos vereis deur die gemelde Artikef 2 van die Wet op
Vervreemding van Grond".
[12]
T
he written contract
under consideration does not measure up to the standard set by the
Act. Actually, it flies against a string
of decisions handed down by
the court regarding the requirements to be met for a contract
to be valid. The purchase price
of the property is unknown and to
make matters worse the mode of payment still has to negotiated at
same stage in the future. The
reliance on some payment to be received
from the Liquidators of Sun Mutiserve is nothing but a hoax. Despite
the lapse of a substantial
period of time, nothing has come of it.
The absurdity of this humiliating failure is that it is due to
occur in some undetermined
date. This leaves the written contract
without a due date. On the basis of the aforegoing reasons, I
am convinced that the
contract is void
ab
initio.
[13]
I deem it unnecessary to express an opinion on the issue which has
been raised relating to suspensive condition provision of
the
contract. The contentious issue dealing with the cancellation of
the contract also falls off. There cannot be talk
of
cancellation of a non-existence contract. Cancellation is
dependent on the existence of a valid contract with force and
effect.
This is not the case in this matter.
[14]
As alluded to in paragraph one (1) above, the applicants are also
seeking an eviction order against the first and second respondent(s).
The factual circumstances of this case are that the first
respondent took occupation and possession of the property
in December
2011. The papers are silent whether he is married or not and staying
with any dependants in the form of his children
and/or
elderly persons who might
be detrimentally affected in the event the
eviction order is granted.
The parties have been at loggerheads with each other that the
first respondent vacate the property
since February 2014. The
proceedings before the court have been pending since May 2015.
[15]
In
casu,
the applicants are the lawful owners of the property
even though it is registered in the name of the deceased alone. They
are joint
owners because they are married in community of property.
The first respondent and any other person occupying the property
through
him are unlawful occupiers. They do not have the permission
of the applicants to be there. However in order for the applicants to
succeed, the court is required to go beyond the consideration of the
lawfulness of the occupation.
[16]
Section 4(7) of the Prevention of Illegal Eviction from Unlawful
Occupation of Land Act 19 of 1998
(the "PIE Act'') provides
that:
"(7)
If
an
unlawful
occupier
has
occupied
the
land
in
question
for more than six months at the time
when the proceedings are initiated, a court may grant an order for
eviction if it is of the
opinion
that
it
is
just
and
equitable
to
do
so,
after
considering
all the
relevant
circumstances,
including,
except
where
the
land
is
sold
in
a
sale
of
execution
pursuant
to
a
mortgage,
whether
land has
been
made
available
or
can
reasonably
be
made
available
by a
municipality or
other organ
of
state
or
another land
owner for the
relocation
of
the
unlawful
occupier,
and
including
the
rights
and needs of the elderly, children, disabled persons and households
headed
by
women";
and
Section
26(3) of Constitution of the Republic of South Africa, Act 108 of
1996
provides that:
"(3)
No one may be evicted from their home, or have their home demolished,
without an order of court made after considering
all the relevant
circumstances. No legislation may permit arbitrary evictions".
[17]
The thrust of the two (2) provisions is that the key considerations
of the court must be based on justice and equity
in the circumstances
to grant an order for eviction. In plain language, the court must
strike a balance between the proprietary
rights of the owner and the
socio economic rights of the occupier. This interpretation has been
analysed and summed up in a number
of decided cases.
[18]
In order to discharge such a duty, it is required that all relevant
facts must be placed before the court. In the matter of
The City
of Johannesburg v Changing Tides 74 (Pty) Ltd
2012 (2) BCLR 1206
(SCA)
at
paragraph 25
the court stated the enquiry as
follows:-
"First
it must decide whether it is just and equitable to grant an eviction
order having regard to all relevant
factors.
Under section 4(7) those factors include the availability of
alternative land or accommodation. The weight
to be attached to that
factor must be assessed in the light of the property owner’s
protected rights under section 25 of
the Constitution, and on the
footing that a limitation of those rights in favour of the occupiers
will ordinarily be limited in
duration. Once the court decides that
there is no defence to the claim for eviction and that it would be
just and equitable to
grant an eviction order it is obliged to grant
that order. Before doing so, however, it must consider what
justice
and equity demands in relation to the
date of
implementation of that order and it must consider what conditions
must be
attached to that order. In that second enquiry
it must consider the impact of an eviction order on the
occupiers and whether
they may be rendered homeless thereby or need
emergency assistance to relocate elsewhere. The order that it grants
as a result
of these two discrete enquiries is a single order.
Accordingly it cannot be granted until both enquiries have been
undertaken
and the conclusion reached that the grant of an eviction
order, effective from a specified date, is just and equitable. Nor
can
the enquiry be concluded until the court is satisfied that it is
in possession of all the information necessary to make both findings
based on justice and equity".
[19]
This was affirmed
inter alia
in
Occupiers of erven 87
&
88 Berea v Christiaan Frederick De Wet N.O.
(2017) ZACC 18
that the court in discharging its duty is “required and
expected to take an active role”. It is incumbent on the
parties
that all information is put before the court in order to
decide whether the eviction is just and equitable. This requirement
was
deemed in Occupiers of erven 87 & 88 case to be
“inextricably, interlinked and essential". The
failure
to adhere to such consideration of justice and equity as
required will be arbitrary. However, it must be emphasized that the
court
must not assume a passive but play an active role in
adjudication of matters of this nature.
[20]
According to the papers the first respondent is a paralegal
practitioner/legal advisor. He is not only gainfully employed but
possesses healthy financial assets at his disposal. As stated by him,
at one stage he tendered payment of R150 000,00 and revealed
that he
had secured finance in the form of a loan amounting to R70 000,00.
This is a further confirmation that he is
not a man of straw. I
was not appraised of any reasons that he can be described as
poor. He is in a position to acquire alternative
accommodation with
ease given his financial muscle and privileged status in
society. The first respondent is withholding
his marital status from
this court and any dependants living on the property. I assume there
is none. There is no justifiable reason
why the first and
second respondent(s) (if any) should hold on to the property of the
applicants without a good cause. In exercising
my discretion, I am
convinced that granting the eviction order against the first and
second respondent(s) (if any) will be just
and equitable. The first
and second respondent(s) must be availed sufficient time to make
proper arrangements for alternative accommodation.
I am of the view
that three (3) months will be in order for arranging the necessaries.
[21]
The costs normally follow the result. Consequently, there is no
reason in law to deviate from this principle that the costs
should be
paid by the unsuccessful party.
[22]
Accordingly I make the following order:-
22.1.
The contract entered into by the first applicant and the first
respondent regarding Erf [...] M. S., Thabong, Welkom on 13 December
2011 is declared void
ab initio.
22.2.
The first and second respondent(s) are declared unlawful occupiers of
the property mentioned in paragraph 22.1.
22.3.
The first and second respondent(s) occupying the property through him
are ordered to vacate the property
not later
than 1 February 2018 at 12H00.
22.4.
In the event the first and second respondent(s) fail to comply with
this order, the Sheriff for the District of Welkom
is authorized and
directed to evict them and remove any movable property
belonging to them forthwith.
22.5.
The first respondent is ordered
to pay the costs of
the
application.
_______________________
MATHEBULA,
J
On
behalf of applicants:
Adv.
P Grayling
Instructed
by:
Kemi Akinbohun Attorneys
c/o Motaung Attorneys
On
behalf of respondent:
Me. J Pedzisai
Instructed
by:
Pedzisai-Pion Attorneys
/roosthuizen