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[2016] ZAKZPHC 108
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Castelyn v Sellick and Another (AR767/2010) [2016] ZAKZPHC 108 (13 December 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR767/2010
In
the matter between:
VERNA
CASTELYN
Appellant
and
JANICE
ELIZABETH
SELLICK
First
Respondent
J
D VEDAN AND
COMPANY
Second
Respondent
Coram:
Koen J et Chetty J (concurring)
Heard:
21 November 2016
Delivered:
13 December 2016
ORDER
(a)
The appeal is dismissed and the
Plaintiff is directed to pay two thirds of the First Defendant’s
costs of the appeal on the
attorney and own client scale.
(b)
The cross-appeal is dismissed
and the First Defendant is directed to pay the Plaintiff’s
costs of the cross appeal on the
attorney and own client scale.
(c)
The judgment of the court
a
quo
in respect of the
Plaintiff’s claim in convention is confirmed.
(d)
The judgment of the court
a
quo
in respect of the First
Defendant’s claim in reconvention is amended to read:
‘
Judgment
is granted in favour of the First Defendant against the Plaintiff for
payment of the sum of R3 400.00 together with
interest thereon
at the rate of 15,5% per annum from date of service of the claim in
reconvention to date of payment, and with
a costs order that each
party pay their own costs relating to the claim-in-reconvention.
The
Second Defendant is directed to pay the sum of R3 400.00
together with interest thereon as aforesaid from the deposit of
R150 000.00 to the First Defendant, and thereafter to refund the
remaining balance of the deposit together with interest that
has been
earned on the deposit from being invested, to the Plaintiff.’
JUDGMENT
KOEN
J
Introduction:
[1]
On 30 April 2014 the Regional Court at Durban granted the following
orders:
[1]
‘
(a)
In respect of the Plaintiff’s claim in convention, judgment is
granted in favour of the First Defendant with costs on
the attorney
and client scale, including the costs of counsel;
(b)
In respect of the First Defendant’s claim in reconvention,
judgment is granted as follows:
(i)
The Plaintiff shall forfeit to the First Defendant the sum of
R77 184.00 as damages suffered by the First Defendant as
a
direct and foreseeable consequence of the Plaintiff’s breach;
(ii)
The Plaintiff shall pay interest at 15,5% per annum on the sum of
R77 184.00 from the date of judgment to the date of
payment in
full;
(iii)
The Plaintiff shall pay the First Defendant’s costs on an
attorney and own client scale, including the costs of counsel.
[2]
The Plaintiff appeals against the whole of the judgment. The First
Defendant cross-appeals against only that part of the learned
regional magistrate’s judgment which disallowed a damages claim
for R100 000 in her claim-in-reconvention.
[3]
The genesis of both the claim-in-convention and claim-in-reconvention
is to be found in a written agreement relating to the
purchase of the
immovable property situate at […] O. Drive, Durban, the
cadastral description whereof is remainder of portion
2 (previously
portion 15 of (2)), of Erf […] Brickfield in extent 1342
square metres (hereinafter referred to as ‘the
property’).
[2]
[4]
In the claim-in-convention the Plaintiff maintains that she was
entitled to resile from the agreement because of a misrepresentation
made to her, which would therefore entitle her to the repayment of
the deposit of R150 000.00 she had paid to the Second Defendant.
This contention is denied by the First Defendant who in turn alleges
that the Plaintiff breached the agreement causing her to suffer
various damages. She therefore claimed forfeiture of the deposit paid
as a genuine pre-estimate of damages and sought to recover
damages
over and above that amount.
[5]
In what follows, I shall:
(a) determine the true
nature of the Plaintiff’s cause of action as formulated in the
pleadings;
(b) identify the true
agreement between the parties which the Plaintiff seeks to resile
from, and on which the First Defendant relies
for her damages;
(c) analyse whether there
was an actionable misrepresentation which would entitle the Plaintiff
to resile from the agreement and
claim restitution;
(d) what damages were
recoverable by the First Defendant.
[6]
The learned magistrate gave a very comprehensive judgment. I do not
intend repeating the comprehensive summary of the material
evidence
contained therein, nor shall I repeat findings with which this
judgment does not take issue. This judgment will deal only
with those
aspects on which I have concluded that the learned magistrate
misdirected himself or where, although I arrive at the
same
conclusion as he did, my approach and reasons for doing so are
different.
The
Plaintiff’s cause of action
:
[7]
Ex facie
the Plaintiff’s particulars of claim:
(a) The Plaintiff relied
on a written purchase and sale agreement concluded between her and
the First Defendant at Durban on 17
October 2011 relating to the
purchase of the property;
(b) Pursuant to the terms
of the agreement the Plaintiff paid a deposit in the sum of
R150 000.00 to the Second Defendant;
(c) The Plaintiff alleged
that:
‘
At
all times material … the First Defendant, both verbally and in
terms of the agreement, expressly and/or impliedly, represented
to
the Plaintiff that the property measured One Thousand Three Hundred
and Forty Two (1342) square metres and that the Plaintiff
would have
beneficial use and enjoyment over a property of that extent.’
[3]
‘
Alternatively,
the First Defendant and/or her duly authorised agent represented that
the fenced in area the Plaintiff was shown
was the full extent of the
property being purchased, which was represented to the Plaintiff on
the written agreement of sale as
being an area in extent of one
thousand three hundred and forty-two square metres (1342m2)’.
[4]
‘
The
representation as to the extent of the property was false in that:
(a)
The true extent of the property as described is seven hundred and
forty-four (744) square metres; alternatively
(b)
The First Defendant ‘has, and the Plaintiff would have had,
beneficial use and enjoyment of the property only to the
extent of
seven hundred and forty-four (744) square metres, the remaining
portion of the property being a public road’.
[5]
‘
At
all times material …, the First Defendant was aware of
circumstances referred to immediately herein above, alternatively
was
negligent in making the representation as to the extent of the
property as recorded in the agreement’
[6]
(d) The Plaintiff further
alleged that:
‘
In
all the circumstances, and at the conclusion of the written
agreement, the Plaintiff believed she was only purchasing the fenced
in property which was represented to her as measuring one thousand
three hundred and forty-two square metres (1 342m2) when
in fact
the property the First Defendant wished to transfer was the fenced in
property, then only measuring 744 square metres (744
M2) and the
remaining portion being a public road. The parties were not at
ad
idem
’.
[7]
(e) Relying on the
aforesaid alleged misrepresentations, the Plaintiff on 13
February 2012 sought to resile from the
agreement.
[8]
(f) In the prayer the
Plaintiff claimed judgment in the following terms:
‘
(a)
declaring the agreement to be cancelled and of no force and effect;
(b)
directing the Second Defendant to repay to the Plaintiff the
sum
of One Hundred and Fifty Thousand Rand (R150 000.00);
(c)
directing the Second Defendant to pay any interest that would have
accrued on the amount calculated from the date of deposit
with the
Second Defendant; alternatively
(d)
costs of suit against the First Defendant, save that in the event of
the Second Defendant opposing any of the relief sought,
then costs
are to be awarded against the First and Second Defendant jointly and
severally, the one paying the other to be absolved’.
[9]
[8]
Mr Pillay, who appeared for the Plaintiff argued that the Plaintiff’s
cause of action was based on the misrepresentation
alleged,
alternatively a lack of consensus regarding the
merx
.
As regards the latter, although paragraph 10A of the particulars of
claim contains a reference to the parties not being ‘
ad
idem
’,
the prayer to the particulars of claim was inconsistent with the
cause of action being based on
dissensus
.
If that was the cause of action, then the prayer would have included
a declaration that no valid agreement came into existence,
and for
repayment of the deposit paid, probably on the basis of a
condictio
indebiti.
The
prayer, to the contrary, presupposes the conclusion of an agreement,
which because of the alleged misrepresentation, is then
sought in
prayer (a) to be declared ‘cancelled and of no force and
effect’. That is the basis upon which the
matter was
dealt with in the court
a
quo
and
it is the cause of action that will be considered in this judgment
.
No case for the repayment of the deposit on the basis of a c
ondictio
indebiti
was
advanced in the pleadings or in evidence before the court
a
quo
.
[10]
[9]
The alleged misrepresentations will furthermore be confined to what
are truly misrepresentations, that is statements made preceding
the
conclusion of an agreement, which induce the conclusion of an
agreement and on which reliance is indeed placed by the other
party
to the agreement in concluding the agreement.
[11]
Statements, for example as to the extent of the property, recorded in
the agreement, are terms thereof which might give rise to
a breach of
the agreement if incorrect, but are not misrepresentations.
The
Agreement:
[10]
Although the particulars of claim base the Plaintiff’s claim on
a written purchase and sale agreement concluded between
the Plaintiff
and the First Defendant at Durban on 17 October 2011, this is
factually incorrect if regard is had to the relevant
chronology of
material events. I deal with these briefly in what follows
immediately below.
[11]
Following inquiries made by the Plaintiff, she and her husband viewed
the property on 15 October 2011 and thereafter submitted
a written
offer, through the estate agent Mr Fann, to the First Defendant. The
First Defendant was not present when the Plaintiff
and her husband
viewed the property.
[12]
The terms of this offer by the Plaintiff and her husband included
inter alia
the following:
(a) The purchase price of
the property was R1 250 000.00;
(b) A deposit of
R400 000.00 was payable within 14 days of acceptance of the
offer;
(c) Clause 7.1 provided
that:
‘
The
Property is sold voetstoots, in its present condition, and the
PURCHASER acknowledges that he has thoroughly inspected
the
property and the sellers declaration attached hereto, before he
signed this agreement and that he has acquainted himself with
its
nature, extent, locality, conditions of title, servitude, leases, any
conditions to be lawfully imposed at the instance of
the Government
and/or Provincial and/or Local Authority and anything which may
adversely affect the value of the property, including
any statutory
and other rules relating thereto and shall have no claim whatsoever
against the SELLER or the AGENT for any defects
in the Property
whether latent (not visible on inspection) or patent (visible on
inspection).’
(e) Clause 7.2 provided
that:
‘
If
the property has been erroneously described herein, such mistake or
error shall not be binding on the seller but the description
of the
property as set out in the sellers title deed shall apply and in such
event, the parties hereto agree to the rectification
thereof to
conform to the intention of the parties. It is further noted and
agreed that if the surveyor general has altered the
description of
the property in pursuance of any scheme or of provision of numbering
of erven in any municipal area that the new
description should apply
….’
(f) Clause 16 provided
that:
‘
This
agreement constitutes the entire contract between the SELLER and the
PURCHASER and any acts, representations, announcements,
statements,
warranties, guarantees or conditions not recorded herein shall be of
no force or effect whatsoever, the PURCHASER acknowledging
that
neither the SELLER nor any person acting on his behalf has made any
representations, announcements, statements or warranties
in inducing
the conclusion of this AGREEMENT. In particularly the PURCHASER shall
have no claim against the SELLER whatsoever in
respect of any
statement or representation relating to the property or improvement
thereon or to any matter or thing arising in
any negotiations prior
to the conclusion of this Agreement.’
(g) Clause 10.4 provided
that:
‘
In
the event of any party … having to consult with Attorneys as a
consequence of any breach of the terms of this Agreement
by any
party, then the defaulting party will be liable to pay the said
Attorneys’ costs of (sic) the Attorney and own scale…’
(h) It was a further term
of the agreement that ‘approved building plans of the whole
property’ would be provided.
[13]
This written offer signed by the Plaintiff and her husband was
thereafter transmitted by the agent to the First Defendant,
and was
accepted by her signing it on the 17 October 2011.
[14]
On 19 October 2011, and in apparent discharge of the obligation to
provide the building plans, the agent Mr Fann met the Plaintiff
and
her husband in the parking lot of St Augustines Hospital in Durban.
It is common cause that at this meeting Mr Fann, at the
lowest common
denominator of the evidence adduced, mentioned to the Plaintiff and
her husband that they were also acquiring a portion
of a road.
Mr Fann’s evidence in fact went beyond that and he repeatedly
stated that he had told the Plaintiff and
her husband that they were
acquiring part of Oakleigh Drive.
[12]
[15]
The Plaintiff and her husband thereafter decided, for reasons
personal to them but irrelevant to this judgment, that only the
Plaintiff herself would be the purchaser of the property, rather than
the Plaintiff and her husband and requested that that decision
be
implemented. The deposit payable to the Second Defendant was also to
be reduced to R150 000.00. The First Defendant agreed
to this.
Insofar as the identity of the purchaser was concerned, the name of
the Plaintiff’s husband then deleted wherever
it appears as
being a purchaser and this deletion duly initialled. The effect
thereof was that the Plaintiff purchased the property
on the same
terms as she and her husband had previously bought, save for the
amendment relating to the deposit. It was common cause
that this
happened on 27 October 2011. Whether this was simply an amendment of
the original agreement, or whether it resulted in
a new agreement
[13]
is of little or no consequence. What is important is that the
agreement which the Plaintiff sought to resile from was not the one
of 17 October 2011 (as alleged in the particulars of claim, with both
her and her husband as purchaser), but the agreement between
the
Plaintiff and the First Defendant which came into existence on 27
October 2011 when the amendments were deleted. Significantly
further,
the effect thereof was that the Plaintiff, with knowledge (at the
minimum) that she was also acquiring a part of a road,
agreed to
proceed with the purchase of the property on her own, on the basis of
the offer previously submitted and agreed to, including
clauses 7.1,
7.2 and 16.
[16]
Pursuant to this amended/new agreement between the Plaintiff and the
First Defendant, the Plaintiff duly paid the deposit in
the sum of
R150 000.00 to the Second Defendant on 11 November 2011, thus
giving partial effect to her obligations as purchaser.
[17]
The Plaintiff’s case was that it was only thereafter, more
specifically on 4 November 2011, that her husband attended
upon the
Surveyor General’s office and discovered that a portion of
Oakleigh Drive was included in the property that she
had purchased.
Her claim is that she did not wish to acquire this portion of a
public road and hence her decision to resile
from the agreement.
The
misrepresentation:
[18]
The Plaintiff does not contend for a positive misrepresentation by
the First Defendant or her agent. Mr Pillay who appeared
on
behalf of the Plaintiff fairly conceded that an alleged
representation that the property measured one thousand three hundred
and forty-two square metres (1 342 m
2
), was not based on
any representation which preceded the conclusion of the agreement,
but was the extent inserted in the agreement,
and hence simply a term
of the agreement. The evidence established that the extent of the
property as per its cadastral description
is in fact one thousand
three hundred and forty-two (1 342 m
2
) and accordingly
that term of the agreement, even if it could be elevated to the level
of the representation (which in my
view it cannot ) is correct
and could not amount to a misrepresentation. Mr Pillay also accepted
that there was no positive representation
made that the Plaintiff
would have the beneficial use and enjoyment of the full extent of the
one thousand three hundred and forty-two
(1 342 m
2
).
Often, the full extent of property as per the cadastral extent is not
capable of being used and enjoyed to the full in respect
of every
square millimetre, because of the nature of the land, topographical
features such as streams, dams, and the like. Nor,
as accepted by Mr
Pillay, was there any positive representation by the First Defendant
or her duly authorised agent that the fenced
in area on the property
was the full extent of the property purchased.
[19]
Instead, the contention advanced by the Plaintiff was that there was
a misrepresentation by silence, or an actionable non-disclosure,
in
circumstances where there was a duty on the First Defendant, or her
agent, to disclose that a ‘large’ part of the
property to
be acquired was a road, and that it was the failure of the First
Defendant and/or her agent to do so, which was relied
upon and which
in fact induced the conclusion of the agreement. When asked as to
what the disclosure should have been, Mr Pillay
stated that there
should have been words along the lines of:
‘
You will be
purchasing a substantial/large portion of the public road O. Drive ‘.
[20]
Whatever the effect of a failure to disclose that the Plaintiff and
her husband would be acquiring ownership of a part of Oakleigh
Drive
might have been in respect of the written offer made by them and
accepted by the First Respondent on 17 October 2011, is
not the
issue. Considerations such as whether there was involuntary reliance
by the Plaintiff and her husband on what was presented
to them,
absent the disclosure that ownership of part of Oakleigh Drive would
also be acquired, or what the impact of clauses 7
and 16 might be in
respect of such non-disclosure, are irrelevant. On 27 October 2011
the Plaintiff unequivocally and in no uncertain
terms with knowledge,
at best for her that she was also acquiring a portion of a road, and
at worst knowledge that the portion
of the road she was acquiring was
indeed part of Oakleigh Drive, elected to purchase alternatively to
proceed and continue with
the purchase of the property. She
thereafter further implemented the agreement by paying the deposit.
She thereby specifically
assumed the risks mentioned in clauses 7 and
16 of the agreement relating to the nature, extent, locality,
conditions of title,
servitude, leases etc. of the property.
[21]
To the extent that it might be contended that she thought that the
fenced in area was one thousand three hundred and forty-two
(1 342
m
2
) metres in extent, whereas it only amounts to some
three hundred and forty-four (344 m
2
) square metres, even
assuming it to be a misrepresentation, it was not a misrepresentation
which induced the conclusion of the
agreement. The unequivocal
evidence of the Plaintiff, and insofar as relevant that of her
husband, was that she was not ‘buying
for size’ and that
the actual extent of the fenced in area, assuming that was the only
portion she thought she was buying,
played no role.
[22]
The sale between the Plaintiff and the First Defendant was therefore
not induced by any misrepresentation by silence or omission.
She had
been told by the agent before electing to proceed with the sale on
her own that she was also acquiring a portion of a road
(a portion of
Oakleigh Drive, if Mr Fann’s evidence is accepted).
[23]
Mr Pillay submitted that she was not told that it was a portion of
Oakleigh Drive, as opposed to for example part of the sewer
and drain
road behind the property (but which does not form part thereof), nor
that it was a ‘large/substantial’ part
of that road. That
is however legally irrelevant. At the level of the lowest common
denominator, the Plaintiff had been told that
she was acquiring part
of a road and having that knowledge she could make further inquiries
or insist on further details (if in
fact she had not been told
specifically that it was part of Oakleigh Drive). The reference
to the extent of this portion
of the road in terms of “large”
or “substantial” are so vague as to be of no consequence.
[24]
The Plaintiff failed to establish grounds on which she could resile
from the agreement. The claim in convention was therefore
rightly dismissed with costs. The scale of costs is that
contractually provided for in the agreement.
The
First Defendant’s counterclaim
:
[25]
The Plaintiff’s failure to pay or secure the transfer costs to
the Second Defendant,
[14]
amounted to a breach of the agreement. She was placed in
morae
by
proper demand to remedy that breach and when she failed to do so, the
agreement was cancelled validly. No submissions to
the contrary
were advanced.
[26]
An aggrieved party is, in the event in the cancellation of an
agreement, in her election entitled to claim damages, to place
her in
a position she would have been in had the breach not occurred,
according to her positive
interesse
.
Damages must be assessed in relation to the date of the breach and
can only extend to such damages as arise directly from
the breach
and/or were within the contemplation of the parties at the time of
contracting as the natural and probable consequence
of such
breach.
[15]
[27]
Following the cancellation of the agreement, the First Defendant on
15 April 2012
[16]
sold the
property for R1 150 000.00. In the interim the First
Defendant had remained on the property and continued
living there
until 1 July 2012. The parties agreed that had the sale to the
Plaintiff been implemented, the property would in the
ordinary course
have been transferred into the name of the Plaintiff by 1 March 2012.
[28]
The First Defendant claimed the following damages in her
claim-in-reconvention:
(a) Rate charges levied
by the municipality in the sum of R3 355 88;
[17]
(b) The costs of
employing a security guard to prevent the property from being
vandalized for the period from 1 July 2012 to 17July
2012, at the
rate of R200 per day, giving a total of R3 400.00;
(c) A loss of
R100 000.00, being the difference between the price which the
Plaintiff had contracted to pay the First Defendant
and the sum for
which the First Defendant subsequently sold the property;
(d) R73 784.24, being
‘interest accrued at 15,5% on the purchase price of
R1 250 000.00 from 1 March 2012 being
the date upon which
transfer would have been affected but for a breach to 17 July 2012
(139 days) being the date of registration
of the sale of the property
to the new purchaser’;
(e) Wasted conveyancing
costs in the sum or R11 837. 61.
[29]
The learned magistrate found in favour of the First Defendant on the
counterclaim in respect of the amounts claimed in sub-paragraphs
(b)
and (d) above, giving a total of R77 184.00, and declared the
deposit paid by the Plaintiff forfeited to that extent.
The Plaintiff
appeals against the award of those damages. The First Defendant has
cross appealed only against the disallowance
of the damages in
sub-paragraph (c) above. This judgment therefore need not deal with
the damages disallowed in sub-paragraphs
(a)
[18]
and (e)
[19]
above. I
deal with the damages in issue under the various heads in
subparagraphs (b), (c) and (d)
seriatim
below.
The
costs of the security guard
:
[30]
This amount is claimed as security services in respect of the period
after the First Defendant had vacated the property and
before
transfer was affected. The reasonableness of incurring these charges
and the quantum thereof were not disputed, are fair
and reasonable,
and were correctly allowed. No argument to the contrary was addressed
to us.
The
loss of R100 000 on the sale of the property
:
[31]
This amount was in my view correctly disallowed for the reasons
stated by the learned magistrate but also, as fairly accepted
by Mr
Alberts who appeared for the First Defendant, that the extent of any
damages suffered in this regard had to be assessed with
reference to
the market value of the property as at the date of the breach. No
evidence was given in that regard. The property
was sold a number of
months later. Although this was a sale at arms- length, there was no
evidence as to how the property market
had been affected in the
interim, specifically whether the price fetched was a fair reflection
of the market value of the property
as at the date of the breach and
cancellation of the agreement. The First Defendant had the
opportunity to adduce this evidence,
failed to do so, and accordingly
failed to discharge the onus of proof. The learned magistrate
correctly concluded that
‘…
the market
value of the property at the time of breach of contract must be
proved to enable the court to assess damages’
and
that
‘
(e)ven if the
contract price (at which the property was subsequently sold) could be
accepted as the market price at that time (of
the sale), there is no
market price at the time of breach of the contract’.
[32]
This conclusion makes it unnecessary to consider the effect of the
decisions in
Culverwell
and another v Brown
[20]
and
Hutchinson
v Hylton Holdings and another
[21]
any further. As much as the property was vigorously remarketed after
the Plaintiff unlawfully repudiated the sale, there was a
delay of
some months before the second sale was concluded. It would have been
easy for the First Defendant to have led evidence
as to whether the
price finally achieved also represented the fair market value of the
property at the date of the breach. I am
not persuaded that the
learned magistrate had erred in this regard.
The
interest on the purchase price
:
[33]
This amount was allowed by the learned magistrate, in my respectful
view incorrectly so. This was not an instance where a contract
was
sought to be enforced, where payment had to be made by a specific
date and where interest, subsequent to the defaulting party
being
placed in
mora,
would accumulate
a
tempore
morae
at the prescribed rate of interest in terms of the Prescribed Rate of
Interest Act.
[22]
Admittedly the First Defendant did not receive the R1 250 000.00
on 1 March 2012. However her claim is a
damages claim. She
would, for example have to show that had she received the money (but
for the breach and cancellation), she would
have invested that money
at a specific rate of return, or applied the proceeds of the sale to
discharge a bond liability thereby
saving the interest payable in
respect of such liability, or applied such proceeds to reduce an
overdraft facility thereby saving
the overdraft interest for which
she otherwise remained liable. Interest at the
morae
rate on the full purchase price, cannot, without any evidential basis
thereof, qualify as proof of damages that she might have
suffered. A
further complicating factor in calculating any damages in this regard
is also that although she might not have received
the purchase price,
she was saved the costs of finding alternative accommodation by
remaining on in occupation of the property
until 30 June 2012,
[23]
and that would also have to be brought into the calculation. It was
incumbent on the First Defendant to prove her damages. In my
view she
failed to do so and she should not have been awarded the interest as
damages.
[34]
In respect of the counterclaim, the First Defendant should
accordingly only have succeeded to the extent of R3 400.00
with
interest thereon at the rate of 15,5% per annum from the date of
service of the claim-in-reconvention to the date of payment.
Costs:
[35]
In terms of the agreement, costs are payable on the attorney and own
client scale.
[36]
The First Defendant was successful in respect of the appeal on the
claim-in-convention, in warding off the Plaintiff’s
claim for
repayment of the sum of R150 000. She also succeeded with her
counterclaim for the security charges in the sum of R3
400, which was
not opposed vigorously, and enjoyed limited success to that extent in
respect of the Plaintiff’s appeal. But
she was unsuccessful in
respect of the interest claim which had been awarded in her favour
(R73 384.00) and the claim for
R100 000 (the subject of her
cross-appeal). In respect of her claim-in-reconvention the First
Defendant was accordingly unsuccessful
save for the amount in respect
of the security charges, which the court
a quo
had in any
event allowed and did not form part of the cross-appeal. The First
Defendant was unsuccessful in respect of her cross-appeal
in respect
of her claim for the loss of R100 000 in the purchase price.
[37]
The Plaintiff was thus substantially unsuccessful in her appeal, save
that she did succeed to ward off the First Defendant’s
interest
claim. Most of the evidence and argument before us had however
concentrated on the disallowance of the claim in convention.
It seems
fair in all the circumstances, in the exercise of my discretion on
the issue of costs, that the First Defendant be awarded
two thirds of
the costs of the appeal.
[38]
Save for the amount of R3 400, which was in any event not
controversial, the First Defendant was substantially unsuccessful
with her cross-appeal. It seems fair that she be directed to pay the
costs of the cross-appeal.
[39]
Insofar as it concerns what remains in respect of the
claim-in-reconvention, the First Defendant is only entitled to
payment
of R3 400.00 with interest thereon at 15,5% from date of
service of the claim in reconvention to date of payment. The costs
order in the court
a quo
, although the First Defendant was
successful to that limited extent, should in my view be altered to
also take account of the substantial
extent to which she was
unsuccessful in her counter-claim, by that order being amended to
read that the Plaintiff and Defendant
shall each pay their own costs
relating to the claim in reconvention in the trial court.
Order
:
(a)
The appeal is dismissed and the
Plaintiff is directed to pay two thirds of the First Defendant’s
costs of the appeal on the
attorney and own client scale.
(b)
The cross-appeal is dismissed
and the First Defendant is directed to pay the Plaintiff’s
costs of the cross appeal on the
attorney and own client scale.
(c)
The judgment of the court
a
quo
in respect of the
Plaintiff’s claim in convention is confirmed.
(d)
The judgment of the court
a
quo
in respect of the First
Defendant’s claim in reconvention is amended to read:
‘
Judgment
is granted in favour of the First Defendant against the Plaintiff for
payment of the sum of R3 400.00 together with
interest thereon
at the rate of 15,5% per annum from date of service of the claim in
reconvention to date of payment, and with
a costs order that each
party pay their own costs relating to the claim-in-reconvention.
The
Second Defendant is directed to pay the sum of R3 400.00
together with interest thereon as aforesaid from the deposit of
R150 000.00 to the First Defendant, and thereafter to refund the
remaining balance of the deposit together with interest that
has been
earned on the deposit from being invested, to the Plaintiff.’
__________________________________
KOEN
J
___________________________________
CHETTY
J
APPEARANCES
FOR
APPELLANT:
Mr I PILLAY
Instructed
by:
MACGREGOR-ERASMUS ATTORNEYS
Ref.:
CAS1/0001
Tel.:
031 201-8955
FOR
FIRST RESPONDENT: Mr
S ALBERTS
Instructed
by:
BERKOWITZ COHEN WARTSKI
Ref.:
08S447001
Tel.:
031 3149300
SECOND
RESPONDENT:
NO APPEARANCE - ABIDED BY THE DECISION OF THE
COURT
[1]
The
Appellant was the Plaintiff and the First Respondent was the First
Defendant in the court
a
quo
.
The Second
Respondent was the Second Defendant. It is the duly appointed
conveyancers in terms of the agreement referred to below.
It took no
active part in either the trial or in the appeal. For convenience
the parties shall be referred to as in the court
a
quo
.
[2]
The
property comprises land with improvements thereon. In the evidence
reference was made to ‘the fenced in portion’
which
comprises the buildings and the garden immediately around the
buildings, and the road, being a portion of Oakleigh Drive,
which
the parties accept forms part of the property, but which lies
outside the fenced in area which the Plaintiff said she viewed
as
the property.
[3]
Paragraph 7 of
the particulars of claim.
[4]
Paragraph 7A of
the particulars of claim.
[5]
Paragraph 9 of
the particulars of claim.
[6]
Paragraph 10 of
the particulars of claim.
[7]
Paragraph 10A of
the particulars of claim.
[8]
The
First Defendant, relying on the
Plaintiff’s
repudiation and/or breach of the agreement, cancelled the agreement
on 21 February 2012 - paragraph 11 of the
particulars of claim.
[9]
Paragraph 15 to
the particulars of claim.
[10]
Even
if
the
pleadings are assigned as benevolent an interpretation as possible
and the evidence as extensive an interpretation (as to
possibly
suggest the evidence having broadened the issues arising from the
pleadings to include a cause of action based on
dissensus)
,
the Plaintiff’s claim on that cause must also fail. The
Plaintiff presented an offer to the First Defendant with specific
terms which the First Defendant relied upon and accepted. Whether
the issue is approached on the basis of the Reliance theory
or the
so called doctrine of quasi mutual assent, objectively there was
agreement. No case has been advanced on the pleadings
for any
unilateral
justus
error.
[11]
See
generally
Spenmac
(Pty) Ltd (formerly Bobcart (Pty) Ltd) v Tatrim CC
[2014]
2 All SA 549
(SCA) but specifically at para 25.
[12]
After
extensive
cross-examination he eventually conceded that he might have been
mistaken. That was a fair concession having regard
to human
fallibility, but did not accord with his primary recollection of
that discussion. There is no reason not to believe
Mr Fann on this
aspect. But it is a factual dispute irrelevant to the dispute.
[13]
In
her email of 27 October 2011 the Plaintiff styled her request that
she be reflected as the sole purchaser as constituting her
‘amended
offer to purchase duly initialed’.
[14]
Demanded
inter
alia
on 23 January 2012.
[15]
Thoroughbred
Breeders’ Association v Price Waterhouse
2001
(4) SA 551
(SCA) para 46ffg.
[16]
Occupation
was required to be given on registration of transfer.
[17]
Further rates of
R39,07 allegedly in respect of the period 1 to 17 July 2012 were
waived.
[18]
The rates for
March to June 2012 were rightly disallowed. The First Defendant
remained in occupation of the property, had the
full use thereof,
and was accordingly liable for the resultant costs relating to her
continued occupation.
[19]
In terms of the
agreement the purchaser would be liable for all costs in relation to
the transfer of the property into her name,
including but not
limited to transfer duty, conveyance fees, stamp duties, value added
tax and other charges in relation thereto.
It is not clear on what
basis any liability for wasted conveyancing costs could attach to
the First Defendant. Certainly there
was no proof that she had paid
any. The learned magistrate in my view correctly disallowed this
claim.
[20]
1990 (1) SA 7
(A).
[21]
1993 (2) SA 405
(T).
[22]
Act
No 55 of 1975.
[23]
She had acquired
another property, but no evidence in regard thereto, to sustain a
damages claim was adduced.