About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2016
>>
[2016] ZAECMHC 2
|
|
Eastern Cape Development Corporation v Sandlana (2053/2011) [2016] ZAECMHC 2 (1 March 2016)
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
EASTERN
CAPE LOCAL DIVISION: MTHATHA
CASE
NO. 2053/2011
In
the matter between:
EASTERN
CAPE DEVELOPMENT
CORPORATION
Applicant
and
BONGINKOSI
GODFREY SANDLANA
Respondent
JUDGMENT
BROOKS
AJ:
[1]
The applicant is the registered owner of certain immovable property
described as ERF [.......] Umtata, Township Extension No.
[...], King
Sabata Dalindyebo Municipality, District of Umtata, Province of the
Eastern Cape, and situate at [.....], Southridge
Park, Mthatha (the
immovable property).
[2]
It is common cause between the parties that on 2 April 2003 they
entered into a written agreement of sale in respect of the
immovable
property which reflected the respondent as the purchaser. A
copy of the signed and dated agreement of sale was
annexed by the
respondent to his answering affidavit (the agreement of sale).
[3]
On 22 August 2011 the applicant launched the present application.
In argument, Mr BEYLEVELD, who appeared on behalf of
the applicant,
indicated that the applicant sought an order in the following terms;
“
1.
That
the Respondent be and is hereby directed to vacate the premises
situated upon the property described as [.....] Southridge
Park,
Mthatha (“the premises”) together with any other
occupiers within 15 calendar days.
2.
That the sheriff of the High Court Mthatha, be and is hereby ordered
to evict
the Respondent together with any other of the premises
assisted, if need be, by any member/s of the South African Police
Services
should the premises not have been vacated by the date
prescribed in paragraph 1 above.
3.
That the Respondent be and is hereby ordered to pay costs of this
application
.”
(
sic
)
[4]
The application is opposed by the respondent, who also introduced a
counter application in which he seeks the following relief:
“
1.
That
the applicant, against payment by the respondent of the purchase
price R 180 000, 00 (One Hundred and Eighty Thousand
Rand) be
ordered or directed to take steps to have the immovable property
known as ERF No. [.......], MTHATHA HOUSE No. [.....]
STREET
SOUTHRIDGE PARK, MTHATHA transferred to the respondent.
2.
That the applicant pays costs of this application
.”
(
sic
)
[5]
The applicant has opposed the counter application.
[6]
There is no dispute between the parties about the correctness of the
recordal of the following terms which were included in
the agreement
of sale:
·
the
purchase price payable in respect of the immovable property was the
sum of R180 000,00;
·
the
date of possession means the date of registration of the immovable
property into the name of the purchaser;
·
occupational
rental referred to the current rental;
·
transfer
of the immovable property would be effected within a reasonable time
after the purchaser had either paid the purchase price
or made
provision for the payment of the purchase price by the timeous
provision of bank or building society guarantees, and had
made
payment of all the costs of transfer;
·
the
purchaser was obliged to pay the full purchase price alternatively to
make provision for payment of the full purchase price
by the
furnishing of bank or building society guarantees, within ninety days
of the date of signature of the agreement of sale;
·
in
the event of the purchase price not being paid timeously, or the bank
or building society guarantees not being furnished timeously,
the
agreement of sale would cease to be of any force or effect, unless
the seller elected to enforce performance of the terms of
the sale
agreement including payment of the full balance of the purchase price
and other amounts due by the purchaser;
·
the
purchaser was to pay occupational rent to the seller up to the date
of registration of transfer;
·
the
purchaser was obliged to vacate the immovable property upon
cancellation of the agreement of sale;
·
any
agreement between the parties to amend or alter the terms of the
agreement of sale would not be binding unless reduced to writing
and
signed by the parties;
·
the
agreement of sale constituted the entire contract between the parties
to the exclusion of any other conditions, stipulations,
warranties or
representations not specifically included therein.
[7]
It was common cause between the parties that as at the date upon
which the application was launched, and indeed as at the date
upon
which it was argued together with the counter application;
·
the
respondent was in occupation of the immovable property;
·
the
purchase price was not paid before the expiry of ninety days after
signature of the agreement of sale;
·
the
respondent had not furnished bank or building society guarantees
before the expiry of ninety days after signature of the agreement
of
sale;
·
The
applicant had not elected to enforce performance by the respondent of
the terms of the agreement of sale pertaining to the payment
of the
purchase price or the provision of guarantees.
[8]
It is plain that the respondent’s opposition to the application
and reliance upon the counter application are both predicated
upon
the view that the agreement of sale remains in existence and is
enforceable between the parties. In support of this
view, the
respondent purports to rely upon various implied or tacit terms and
has raised arguments relating to the precedence to
be attributed to
the various mutual obligations recorded in the agreement of sale.
For the reasons which follow, I do not
consider and evaluate each of
the arguments raised on behalf of the respondent in support of his
counter claim.
[9]
There is no dispute
inter
partes
about
the correctness of the recordal of the written terms in the agreement
of sale. Amongst these is clause 13, which records
that no
alteration or amendment (variation) of the agreement between the
parties shall be binding unless reduced to writing and
signed by the
parties, and clause 19, which records that the agreement of sale
constitutes the entire contract between the parties
to the exclusion
of any other conditions, stipulations, warranties or representations
not recorded therein. The meaning of
these clauses is plain and
operates to exclude any reliance the respondent may claim upon any
purported tacit terms pertaining
to the agreement of sale.
[10]
To the extent that the respondent may have wished to rely upon any
implied terms pertaining to the agreement of sale, the implied
terms
set out in the answering affidavit are at variance with the terms
embodied in the agreement of sale. It has been held
that an
implied term cannot be in conflict with the written provisions of a
contract.
[1]
[11]
Attributing the plain, ordinary meanings to the words employed in the
expression of the terms in the agreement of sale, the
obligation on
the part of the respondent to make payment of the full purchase price
within ninety days of the date of signature
of the agreement of sale,
or to furnish bank or building society guarantees in respect thereof
is expressed as a suspensive condition.
In the event that the
respondent failed to comply with the terms embodied therein, the
agreement of sale would automatically cease
to be of any force or
effect. The respondent did not comply with this obligation and
the applicant did not elect to seek
specific performance thereof.
In the circumstances the agreement of sale ceased to be of any force
or effect ninety days
after the date of its signature. The
argument that by its conduct the applicant extended the life of the
agreement of sale
cannot succeed.
[12]
Even if one were to assume an academic position in favour of the
respondent by entertaining the notion that the agreement of
sale had
not ceased to be of any force or effect but remained extant, the
respondent’s right to make any claim against the
applicant
based upon the agreement of sale has prescribed. An obligation
to pass transfer of immovable property is a debt
as contemplated in
terms of
s10
of the
Prescription Act No 68 of 1969
and accordingly
the obligation to procure registration of transfer of the immovable
property in terms of the sale agreement has
been extinguished by
prescription.
[2]
The
obligation to transfer is reciprocal to the obligation to pay or to
make provision for the payment of the purchase price
and other costs
incidental to transfer referred to in clause 3 of the agreement of
sale.
[3]
The counter
application is a claim for specific performance. One of the
essential elements of a claim for specific
performance in terms of a
contract is to allege and prove compliance with any reciprocal
obligation or to tender timeously to perform
such obligation
[4]
.
No merit exists in the respondent’s apparent claim that he is
not obliged to furnish the applicant with the full purchase
price or
bank or building society guarantees until the applicant complies
“with its side of the bargain by showing me a title
deed
registered in its name over the property in question”. No
such obligation existed on the part of the applicant
and nothing
emerges in this matter as a valid basis for any contention that
prescription did no commence to run or was in any way
interrupted.
[13]
A further argument was raised in opposition to the application.
Mr NTSALUBA, who appeared on behalf of the respondent,
submitted that
the applicant could not obtain an order for the eviction of the
respondent from the immovable property because the
applicant had not
followed the procedures prescribed in the Prevention of Illegal
Eviction from and Unlawful Occupation of Land
Act No 19 of 1998
(PIE).
[14]
In my view, the argument is without merit for a number of reasons.
Firstly, PIE is predominantly designed to protect
the rights of
persons who may have taken up occupation of land under somewhat
precarious circumstances and who would otherwise
be faced with
eviction proceedings of which they have had no notice and which would
take them by surprise to their substantial
disadvantage. The
respondent, who is described in the affidavits filed of record as a
duly admitted attorney of this court
is not such a person. His
rights
vis-ẚ-vis
the immovable property were created and regulated by agreement
between the parties, including the right of the applicant to seek
the
eviction of the respondent in certain circumstances. The
respondent makes no claim in the answering affidavit that he
was
ignorant of these rights or was mislead into signing either the
original agreement of lease or the agreement of sale.
Secondly,
this application has served previously before the court and the
respondent has been more than adequately represented.
No
purpose would be served in the circumstances by requiring the
applicant to give notice to the respondent of its intention
to apply
for the eviction of the respondent from the immovable property.
Even if it were to be ordered that the applicant
give such notice, it
would do no more than occasion a further postponement of the matter
for the duration of the notice period.
No change in the
affidavits filed of record or the substance of the arguments set out
therein would occur.
[15]
A final argument raised on behalf of the respondent in an attempt to
defeat the application was to the effect that
s19
of the
Alienation
of Land Act No 68 of 1981
prescribes that there can be no termination
of the respondent’s right of occupation of the immovable
property without prior
written notification by the applicant calling
upon the respondent to remedy his breach.
[16]
In my view, there is no merit in this submission. In the
present circumstances, the suspensive condition set out in clause
4
of the agreement of sale was not fulfilled. The result was that
the agreement of sale automatically ceased to be of any
force and
effect. The right on the part of the applicant to evict the
respondent in such circumstances found expression in
the provisions
of clause 10 of the agreement of sale. In these circumstances,
s19
of the
Alienation of Land Act No 68 of 1981
is of no
application. Ultimately the applicant did not rely upon any
breach of contract in seeking the eviction; in reality,
the applicant
relies upon the automatic termination of the agreement of sale.
[17]
It follows that for the reasons set out in this judgment I am of the
view that the application should succeed and that the
counter
application falls to be dismissed. No reason exists why costs
should not follow the result, including the wasted
costs which were
reserved on 9 October 2015 when the matter was postponed at the
request of the respondent.
[18]
The following order will issue:
1.
Prayer
1 is amended by the deletion of the words “within 15 calendar
days” and the substitution therefor of the words
“by 30
April 2016”.
2.
The
application is granted and orders are made in terms of prayers 1, 2
and 4 of the notice of motion (as amended);
3.
The
respondent is further directed to pay the wasted costs reserved on 9
October 2015.
4.
The
counter application is dismissed with costs.
RWN
BROOKS
JUDGE
OF THE HIGH COURT (ACTING)
Counsel
for the Applicant:
ADV A BEYLEVELD SC
Instructed
by
BNI Attorneys
MTHATHA
Counsel
for the Respondent:
ADV S NTSALUBA
Instructed
by
B. G. SANDLANA & Co
MTHATHA
Matter
heard on:
18 February 2016
Judgment
delivered on:
01
March 2016
[1]
TRANSNET
LIMITED v RAUBENSTEIN
2006 (1) SA 591
(SCA).
[2]
DESAI
NO v DESAI AND OTHERS
[1995] ZASCA 113
;
1996 (1) SA 141
(A) 146 A-H.
[3]
MLUNGISI
JULY v EASTERN CAPE DEVELOPENT CORPORATION, CASE NO 919/05,
unreported judgment ECD TK Local Division, 13 July 2006.
[4]
R. M.
VAN DE GHINSTE AND CO. (PTY) LTD vs VAN DE GHINSTE
1980 (1) SA 250
(C) 252G-254A.