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[2016] ZAGPPHC 32
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Van Dyk v FJ Le Roux t/a FJ Le Roux Attorneys and Others (62521/2014) [2016] ZAGPPHC 32 (25 January 2016)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
25/1/2016
CASE NO: 62521/2014
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
In the matter between:
JOHANNES VAN DYK (ID
No.
[…]) APPLICANT
and
FJ LE ROUX t/a FJ LE
ROUX ATTORNEYS FIRST
RESPONDENT
THE EXECUTOR IN THE
ESTATE OF THE
LATE ISABELLA FREDRIKA
STANDER SECOND
RESPONDENT
D J
STANDER THIRD
RESPONDENT
ERIC BOSMAN PROPERTIES
CC FOURTH
RESPONDENT
(Reg. No.
2009/128758/23)
JUDGMENT
KUBUSHI, J
[1] In this application
the applicant seeks an order directing the first respondent to
immediately pay to the applicant an amount
of R133 973, 15, which
amount is according to the applicant kept by the first respondent in
his trust account.
[2] There are four
respondents cited in the application. Only the first respondent is
opposing the application. There were further
affidavits filed by the
applicant and the first respondent after the affidavits required in
terms of the uniform rules of court
were filed. Both the applicant
and the first respondent request that condonation be granted in
respect of the said affidavits.
The applicant filed his replying
affidavit out of time and requested that condonation be granted in
respect of such late filing.
There is no opposition from either party
in respect of the other's application for condonation. The
condonation for the late filing
of the applicant's replying affidavit
and for the filing of further affidavits by the applicant and the
first respondent is granted.
[3] The factual
background to this application is important to understand the trigger
that occasioned the launch of this application.
Most of the facts are
common cause between the parties.
[4] On 9 July 2013 the
applicant, as an interested party, signed an offer to purchase a
fixed property. The property was in the
deceased estate of "Boedel
Wyle Isabella Fredrika Stander". The agreed purchase price of
the property was the amount
of R950 000. The purchase price was
divided as follows: payment of R900 000 to the seller and R50
000 to the fourth respondent
as the estate agent. A further term of
the agreement was for the parties to negotiate occupation of the
property. In terms of such
negotiations the applicant occupied the
property from November 2013 to May 2014.
[5] The first respondent
was appointed as the conveyancer attorney for purposes of transfer of
the property into the applicant's
name.
[6] The parties are
common cause that the agreement was subject to a suspensive
condition, in that, the applicant had to provide
the seller with a
duly approved bank or building society guarantee in respect of the
purchase price in the amount of R950 000 within
sixty (60) days after
signing the agreement. The sixty days would expire on 8 September
2013. The applicant was unable to obtain
a loan within the time of 60
days as stipulated in the agreement.
[7] On 24 October 2013,
over a month after the expiry of the sixty days period, ABSA bank
agreed to loan the applicant an amount
of approximately R850 000,
which is 90% of the purchase price on condition that the applicant
personally obtain and/or pay a deposit
of 10% of the purchase price.
In terms of the agreement between the applicant and ABSA, ABSA
reserved the right to withdraw from
the agreement if it is not signed
within a period of two months after the date of the agreement.
[8] The applicant was
only able to obtain a personal loan (to pay the deposit of 10%)
during February 2014 from IEMAS Financial
Service (Co-Operative) Ltd.
On 27 February 2014, almost six months after the expiry of the sixty
days period, the applicant paid
the deposit together with transfer
costs into the trust account of the first respondent in the amount of
R133 973, 15.
[9] Due to the reasons,
which the applicant did not disclose in his papers, he instructed
ABSA bank not to proceed with the bond.
The applicant then requested
the first respondent to refund him the amount of R133 973, 15 paid
into his trust account. The first
respondent refused to do so, hence
this application.
[10] The applicant's
submission is that since he was not able to obtain a loan from a
financial institution within the sixty days
stipulated in the
agreement, the agreement never came into existence and he is thus
entitled to the refund of the full amount paid
into the trust account
of the first respondent. According to him, none of the respondents
has a lien and/or right of retention
over the money and the money
cannot be kept as "security" for any claims against him by
either the third or fourth respondents.
[11] In his answering
affidavit, the first respondent submits that the applicant by virtue
of his conduct, elected to continue with
the agreement, despite not
obtaining the necessary approved bond within 60 days after signing
the agreement. The first respondent's
contention is that the
following conduct of the applicant showed an intention to continue
with the agreement, namely;
11.1. On 9 May 2014 the
applicant informed the first respondent's office that he was
cancelling the agreement. The inference from
this, according to the
first respondent, is that the applicant up and until 9 May 2014
deemed the agreement to be valid.
11.2. The applicant
obtained a 90% loan from ABSA bank and obtained finances in the
amount of R133 973, 15 which was subsequently
paid in the first
respondent's trust account. The inference from this is that the
applicant did this to fulfil the condition in
the agreement.
[12] It appears from the
agreement as attached to the papers that the seller did not sign the
agreement. Since as
per
the agreement, the property in issue
is in a deceased estate, the agreement ought to have been signed by
the executor(s) of the
estate late Isabella Fredrika Stander. The
parties are, however, not taking issue with the failure by the seller
not to sign the
agreement. What seems to be the main issue is the
failure by the applicant to proceed with the agreement. The question
for determination
is whether there is an agreement of sale entered
into between the applicant and the executor(s) of the estate.
Pursuant to the
said issue is whether the first respondent is
entitled to hold the applicant's money in trust pending the
applicant's settlement
of the agent's commission and the rental
amount alleged to be due to the estate.
DID THE AGREEMENT COME
INTO EXISTENCE?
[13] The general law of
application is that the conclusion of an agreement subject to a
suspensive condition creates a binding contractual
relationship
between the parties. Pending fulfilment of the suspensive condition,
the exigible content of the agreement is suspended.
On fulfilment of
the condition the agreement becomes of full force and effect and
enforceable by the parties in accordance with
its terms.
[1]
[14] In this instance, it
is common cause that the applicant was expected in terms of the
agreement to provide a bank or building
society guarantee of R950 000
within sixty days after signing the agreement. It is also not in
dispute that by 8 September 2013
that is within the stipulated period
of sixty days, the applicant had not been able to obtain the bank
loan of R950 000. It stands
therefore that the applicant was unable
to fulfil the suspended condition of the agreement.
[15] The first
respondent's submission is that because the applicant later, after
the expiry of the 60 days period, continued to
pursue the fulfilment
of the suspensive condition, his conduct should be inferred as an
intention to continue with the agreement
and as such he should be
held bound by the agreement.
[16] In law, a clause or
condition that is exclusively for the benefit of one party may be
waived by that party. A suspensive condition
contained in an
agreement is obviously for the sole benefit of the purchaser. The
condition, as such, may only be waived by the
purchaser, thereby
rendering the agreement unconditional. But any waiver must take place
before the cut-off time provided for in
the agreement, because the
agreement would otherwise have lapsed on non-fulfilment of the
condition.
[2]
[17] In this instance, it
is clear that the suspensive condition was never fulfilled because at
the time the applicant was granted
a loan by ABSA and at the time he
paid the amount of R133 973, 15 into the trust account of the first
respondent the time period
of sixty days stipulated in the agreement
had already lapsed. The inference from the applicant's conduct, on
which the first respondent
seeks to rely, cannot be regarded as a
waiver by the applicant of the suspensive condition. The applicant
acted only after the
period of sixty days has long expired. By then
the agreement had lapsed and ceased to exist. As it was expressed by
Marais J in
Westmore v Crestanello
&
others
1995
(2) SA 733
(W) at 736A:
'I do not readily
comprehend how a purchaser could unilaterally waive a clause of a
lapsed or defunct agreement (which by definition
no longer exists)
and by so doing unilaterally miraculously breathe new life into the
corpse."
[19] It is thus clear
that the fulfilment of a suspensive condition is a pre-requisite for
the agreement to come into force and
effect. If it is not fulfilled
the agreement falls away and no claim for damages flows from its
failure. In the absence of any
stipulation to the contrary in the
agreement itself, the only exception is where the one party has
designedly prevented the fulfilment
of the condition.
[3]
[20] On that basis, I
have to conclude that the first respondent is not entitled to
withhold payment of the plaintiff's money as
claimed based on the
consequences flowing from the agreement of sale. From the papers
before me no one of the respondents has a
lien and/or right of
retention over the money. The applicant must therefore succeed in his
claim.
[21] The applicant is
claiming interest on the amount a
temporae morae
from 6 June
2014 to date of payment personally from the first respondent. The
contention is that even though the money is held in
a trust account
and does not accumulate interest on behalf of the applicant, the
first respondent is withholding paying the amount
without due course
and should therefore be held liable for the interest lost by the
applicant.
[22] My view is that the
first respondent should be held liable for the interest and should be
ordered to pay it
a tempore morae
from the date of first
demand by the applicant to date of payment.
[23] As regards costs I
am of the view that the first respondent should be ordered to pay the
costs of this application but not
on an attorney and client scale.
[24] Consequently, I
grant the following order:
1. The first respondent
is ordered to pay the amount of R133 973, 15 (one hundred and thirty
three thousand nine hundred and seventy
three rand fifteen cents)
held in his trust account, or wherever it may be held, to the
applicant.
2. The first respondent
is ordered to pay interest on the said amount of R133 973, 15,
a
tempore morae,
calculated from 6 June 2014.
3. The first defendant is
ordered to pay the costs of this application on a scale as between
party and party.
_________________________
E.M. KUBUSHI
JUDGE OF THE HIGH
COURT
APPEARANCES
HEARD ON THE: 25 November
2015
DATE OF JUDGMENT: 25
January 2016
APPLICANT'S COUNSEL: Adv
K. T. Jordd
APPLICANT'S ATTORNEY: Van
Den Berg & Koekemoer Att
FIRST RESPONDENTS': Adv
J. Holland - Muter
COUNSEL FIRST
RESPONDENTS' ATTORNEY: Hellmann & Breitenbach
[1]
Mia v Verimark (Pty) Ltd (522/08)
[2009] ZASCA 99
(18 September
2009).
[2]
Park 2000 v Page (905/2010) (2011] ZASCA 208 (29 November 2011) para
(11).
[3]
Mia v Verimark (Pty) Ltd above.