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[2017] ZAKZPHC 53
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Trading CC v Sewpersadh and Another (AR12/2017) [2017] ZAKZPHC 53 (1 December 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Not
Reportable
Case
No: AR 12/2017
Reportable
Of
interest to other judges
Revised.
In
the matter between:
PHULELE
105 TRADING
CC
APPELLANT
and
GOPAUL
SEWPERSADH
1
st
RESPONDENT
ROSHINI
SEWPERSADH
2
nd
RESPONDENT
JUDGMENT
Delivered on: 1 December 2017
GORVEN
J
[1]
The respondents are owners of immovable property (the property). They
approached the local division of this court by application.
The main
relief they sought was vindicatory in nature. They sought an order to
require the appellant to restore possession of the
property to them.
[2]
In order to found a claim for vindication, a
party need only plead and prove ownership. This is because an
incident of ownership
is the entitlement to ‘exclusive
possession of the
res
,
with the necessary corollary that the owner may claim his property
wherever found, from whomsoever holding it’.
[1]
If, however, an owner concedes having given the other party the right
to possess at any stage, the owner must plead and prove a
valid
termination of that right.
[2]
Such was the position in the present application. The respondents
gave occupation to the appellant pursuant to the agreement dealt
with
below.
[3]
The appellant purchased the property from the respondents by way of
an agreement. It paid a deposit of R600 000. The balance
of the
purchase price was to be paid against registration of transfer. The
appellant undertook to raise a loan for this sum by
31 January 2010.
If the loan raised was less than that sum, the appellant undertook to
pay the balance to the transferring
conveyancers by that date. Clause
3.6 provides:
‘
Should the Purchaser failed to comply with any of
the conditions in this Clause by 31 January 2010, the
Sellers shall
within their sole discretion be entitled to forthwith
cancel the sale.’
[4]
Further material terms of the agreement included the appointment of
domicilia citandi et executandi
by the parties, a provision
that the appellant would have no right to remain in occupation of the
property if the sale was cancelled
for any reason, a requirement that
the appellant pay occupational interest in the sum of R10 000 per
month and a general breach
clause which reads:
‘
11.1 Except as otherwise provided for in this
Agreement, in the event of any Party failing to perform its
obligations in terms of
this Agreement, or breaching any term hereof,
the aggrieved Party shall give the defaulting Party Seven (7) days
written notice
to remedy such breach.
11.2 In the event of the breach not being remedied, the
aggrieved Party shall be entitled within its sole discretion either
to claim
specific performance of the defaulting Party’s
obligations or to cancel the Sale and sue for damages suffered and/or
to invoke
any other remedy available in Law.’
[5]
It is common cause that the appellant failed to
pay the balance of the purchase price or secure a loan as required by
the agreement
by 31 January 2010. Also that the respondents
did not invoke the provisions of clause 3.6 entitling them to cancel
the
sale forthwith. Finally that the appellant, having initially paid
occupational interest, ceased doing so in September 2014. There
is a
factual dispute as to whether or not the appellant is in arrears or
advance with occupational interest payments. Because the
matter was
argued on the papers, this factual dispute must be resolved in favour
of the appellant.
[3]
[6]
The sheriff served a letter dated 4 May 2015 at the appellant’s
domicilium citandi et executandi
. He recorded that the
premises were vacant. The letter demanded that the appellant remedy
alleged breaches of the agreement. The
relevant paragraph of that
letter reads as follows:
‘
You are accordingly in default and in breach of
the agreement in that you have failed to pay or secure payment of the
balance of
the purchase price. You have also failed to pay interest
that has accrued by reason of the delay and your failure to pay
certain
other amounts due under the agreement timeously. The further
breach and the feature which has brought this matter to a head is
your continued failure to pay occupational interest in terms of the
agreement since September 2014.’
Demand
was then made that the appellant remedy the named breaches within
seven days. It was recorded that, if this was not done,
the
respondents intended to cancel the agreement and recover possession
of the property.
[4]
[7]
The matter came before Mnguni ADJP. He granted the order as prayed.
This appeal to the full court is with his leave.
[8]
The appeal turns on the interpretation of certain
clauses in the agreement. The approach to interpreting documents was
crisply summarised,
in
Natal Joint Municipal
Pension Fund v Endumeni Municipality
:
[5]
‘
The “inevitable point of departure is the
language of the provision itself”, read in context and
having regard
to the purpose of the provision and the background to
the preparation and production of the document.’
[6]
[9]
The first clause requiring interpretation is clause 11.1, the general
breach clause. The clause applies to breaches ‘[e]xcept
as
otherwise provided for in this Agreement’. The appellant
submits that ‘[t]he failure to secure the purchase price
falls
outside the application of clause 11 as this is provided for
elsewhere (“otherwise”), namely in clause 3.6.’
As
such, that breach is excluded by clause 11.1. The effect of
this, the appellant submits, is that the respondents were obliged
to
invoke the common law in dealing with this breach. This requires the
respondents to place the appellant in mora. They were required
to
allow a reasonable time to secure or pay the balance of the purchase
price. Because clause 11.1 did not apply, the seven day
period did
not apply. The seven days given to remedy the breach in the letter of
demand was not reasonable taking into account
the time required to
obtain a bond.
[10]
This contention is internally inconsistent and flawed. Clause 3.6
gives a specific date, 31 January 2010, as a deadline to
secure or
pay the balance of the purchase price. After 31 January 2010,
there remained an admitted obligation on the
part of the appellant to
secure or pay the balance of the purchase price. It is common cause
that the appellant remained in breach
of this obligation. After the
respondents had made an election not to cancel arising from the
failure to secure or pay the balance
of the purchase price by
31 January 2010, they were entitled to place the appellant
on terms to do so. That much was
not disputed by the appellant in
argument. At that stage, the respondents could not invoke the
provisions of clause 3.6 because,
limited as it was to the 31 January
2010 deadline, it did not provide for such a situation. The appellant
relies on this for its
submission that the common law applies. But
the submission means that the continued breach was not ‘provided
for in this
Agreement’. Such breach accordingly falls within
the ambit of clause 11.1. If the respondents gave the appellant
notice to
remedy the breach in terms of this clause, it is thus good
notice.
[11]
This leads to the next submission of the appellant. That is to the
effect that notice to remedy the breach was not given. There
are two
related contentions of the appellant in this regard. First, service
of the notice at the
domicilium citandi et executandi
was not
provided for in the agreement. Secondly, if it was so provided, since
clause 11.1 required the respondents to ‘give’
notice,
the notice must actually reach the appellant. I shall deal with each
of these submissions in turn.
[12]
As to the first of these, the appellant submits
that the nomination of a
domicilium citandi et
executandi
was for the sole purpose of
serving legal process. It does not apply to service of notices. It
relies for this proposition on a
dictum in the matter of
Ficksburg
Transport (Edms) Bpk v Rautenbach en ’n ander
[7]
to the following effect:
‘
It is generally accepted in our practice that the
choice of a
domicilium citandi et executandi
,
without more, applies only to the service of process in the course of
a legal suit . . . However, sometimes a
domicilium
is also chosen by the parties to a contract for the service of
notices in terms of the contract. Whether in a particular instance
a
choice of a
domicilium citandi et executandi
applies only to processes in a legal suit or whether it also applies
to notices in terms of the contract (the so-called ‘double
provision’), depends on the correct interpretation of the
contract in question.’
[8]
This
approach was followed and expanded upon in
Amcoal
Collieries Ltd v Truter
:
[9]
‘
It is generally accepted in our practice that the
choice without more of a
domicilium citandi
is applicable only
to the service of process in legal proceedings . . . Parties to a
contract may, however, choose an address for
the service of notices
under the contract. The consequences of such a choice must in
principle be the same as the choice of a
domicilium citandi et
executandi
. . . namely that service at the address chosen is
good service, whether or not the addressee is present at the time.’
Put
differently, the use of a
domicilium
address can be widened by
the terms of an agreement.
[13]
The significance of the appellant’s submission lies in the
letter of demand having been served by the sheriff at its
domicilium
citandi et executandi
. If the agreement does not allow for this,
no notice was given to the appellant. The appellant says the
agreement does not allow
for it and accordingly submits that no
demand was made of it to remedy any breaches. If this is so, the
right to cancel the agreement
under clause 11.1 did not accrue to the
respondents.
[14]
The question whether service by the sheriff of the notice at the
domicilium
address is allowed under the agreement turns on the
interpretation of clause 17. It reads as follows:
‘
17.1 For the purposes of this Agreement the
Parties choose domicilium citandi et executandi as follows . . .
17.2 All notices, if sent by prepaid registered mail to
the said domicilia, shall be deemed to have been received after two
days
from date of posting.
17.3 Each party shall be entitled by written notice to
the other, to change its chosen domicilium citandi et executandi.’
[15]
The appellant accepts that clause 17.2 of the agreement allows notice
to be given if sent by registered post to the
domicilium
address. However, the appellant submits that this is the only manner
in which notices may be delivered to the
domicilium
address.
Other means such as service by the sheriff are excluded. In support
of this proposition, it says that the clause is unambiguous
and must,
therefore, be given its ordinary grammatical meaning.
[16]
The clause certainly unambiguously allows notices
to be sent by registered post to the
domicilium
address. This means that it is not a ‘choice without more’
[10]
of a
domicilium
. The
use of the
domicilium
address is clearly widened in the agreement beyond service of legal
process. The question is whether, having widened the use of
the
domicilium
citandi
et executandi
, the mention of registered post
excludes the giving of notice at the
domicilium
by any other means.
[17]
On the relevant principles of interpretation, the language must be
read in context and regard had to the purpose of the provision.
At
least one purpose for specifically mentioning registered post is
clear. The clause includes a deeming provision as to the date
of
service which is two days after being sent by this means. Without
such provision, it is not possible to prove the date on which
the
notice was received. This is necessary, for example, to calculate
when the seven day period in clause 11.1 starts running.
Another
example is where a party sends a notice by registered post changing
her or his
domicilium
address. Any service of process or
giving of notice to the old address will be ineffective after the two
day period has elapsed.
[18]
There is thus a particular purpose in specifying a deemed date of
receipt where such a notice is sent by registered post. There
is no
similar need to specify the date of receipt if notice is given by way
of service by the sheriff. As a result, no such provision
need be
included. There is thus adequate reason for not specifying this issue
as regards service by the sheriff at the
domicilium
address.
The clause also does not in terms exclude the use of such service.
[19]
The manner in which clause 17.2 is phrased is significant. It does
not say that notices may be sent to the
domicilium citandi et
executandi
by registered post. It presupposes that the address
may be used for giving notice. It only specifies when such notices
will be
deemed to have been received if sent by registered post. As
such, the agreement accepts that notice may be given at the
domicilium
address. The purpose of appointing a
domicilium
address is thus broadened. There is no indication that the use of the
domicilium
address is limited to delivery by registered post.
There is, in my view, no merit in the submission that the address may
not be
used for service of notices by the sheriff.
[20]
I turn to the second submission of the appellant concerning the
giving of notice under clause 11.1. This is to the effect
that,
since clause 11.1 required the respondents to ‘give’
notice, the notice must actually reach the appellant. It
is not
sufficient to serve it at a
domicilium
address which is
unoccupied without being able to show that the appellant actually
received it. Because it is clear from the sheriff’s
return of
service that the
domicilium
address was not occupied, the
requirement was not met.
[21]
The provisions of clause 17.2 are inconsistent with this submission.
This provides, in terms, that there is no requirement
that the
appellant actually receive the notice. All that is required is that
it is sent and two days elapse thereafter for the
notice to be given.
The deeming provision concerning registered post is triggered when
the notice is sent. This is so whether the
domicilium
address
is occupied or not. In other words, it is valid delivery whether or
not the party receives it. It has often been provided
that a party
may change the
domicilium citandi et executandi
. That is also
the case in the agreement. If a party no longer lives at the address
and does not change it, that party assumes the
risk that delivery to
that address might not come to its notice.
[22]
The submission is also inconsistent with the
dictum in
Amcoal Collieries
that the choice to allow notice to be given to a
domicilium
citandi
must in principle be the same as
nominating a
domicilium
address for service of legal process.
[11]
The effect of such a nomination was earlier spelled out in that
judgment:
‘
It is a well-established practice (which is
recognised by Rule 4(1)
(a)
(iv)
of the Uniform Rules of Court) that, if a defendant has chosen
a
domicilium citandi
,
service of process at such place will be good, even though it be
a vacant piece of ground, or the defendant is known to be
resident
abroad, or has abandoned the property, or cannot be found.’
[12]
[23]
The notice of demand to remedy the breach was properly served on the
appellant. The appellant failed to remedy the breach by
paying or
securing the balance of the purchase price. The right to cancel the
agreement thus accrued to the respondents. The respondents
elected to
do so. This election was communicated to the appellant when the
application papers were served on it.
[24]
There is therefore no defence to the vindicatory claim. The agreement
has been cancelled. Once this was done, the appellant’s
right
to occupy ceased. The respondents accordingly proved a valid
termination of the appellant’s right to occupy the property.
It
follows that they were entitled to the relief sought in the
application as was found by Mnguni ADJP. The appeal must fail.
[25]
In the result, the appeal is dismissed with costs.
____________________
GORVEN
J
____________________
VAN
ZŸL J
____________________
CHILI
J
Date of Hearing: 17 November 2017
Date of Judgment: 1 December 2017
Appearances
For the Appellant: FM Moola SC (with him N Moosa)
Instructed
by Govender Mchunu & Associates
c/o
Stowell & Company
For the Respondents: S Ameer
Instructed by Larry Singh & Associates
c/o Yashica Chetty Attorneys
[1]
Per Jansen JA in
Chetty v Naidoo
1974
(3) SA 13
(A) at 20B.
[2]
Chetty
at 20A-G.
[3]
Plascon-Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635C. There was no contention that, in this
instance, the averments of the appellant were so clearly untenable
that
they should be rejected on the papers.
[4]
Other allied relief not relevant to this appeal was also claimed.
[5]
Natal Joint Municipal Pension Fund v Endumeni
Municipality
[2012] ZASCA 13
;
2012 (4) SA
593
(SCA) para 18.
[6]
Reference omitted.
[7]
Ficksburg Transport (Edms) Bpk v Rautenbach
en ’n ander
[1987] ZASCA 107
;
1988
(1) SA 318
(A)
.
[8]
My translation. The original is in Afrikaans and reads:
‘
Dit
word algemeen aanvaar in ons praktyk dat die keuse van 'n
domicilium
citandi et executandi
, sonder meer, slegs betrekking het op die
betekening van prosesstukke in die loop van 'n regsgeding . . . Soms
word 'n
domicilium
egter ook deur die partye
tot 'n kontrak gekies vir die betekening van kennisgewings ingevolge
die kontrak. Of in 'n
bepaalde geval 'n keuse van 'n
domicilium
citandi et executandi
slegs betrekking het op prosesstukke
in 'n regsgeding en of dit ook van toepassing is op kennisgewings
ingevolge die kontrak
(die sg 'dubbele voorsiening'), hang af van
die juiste vertolking van die bepaalde kontrak.’
[9]
Amcoal Collieries Ltd v Truter
[1989] ZASCA 99
;
1990 (1) SA 1
(A) at 6B-D.
[10]
Amcoal Collieries
at
6C.
[11]
Amcoal Collieries
at
6C-D.
[12]
Amcoal Collieries
at
6A-B.