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[2016] ZAGPPHC 821
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Bedwell v Pretorius (58497/2011) [2016] ZAGPPHC 821 (5 September 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: 58497/2011
Date:
5 September 2016
In
the matter between:
KENNETH
..
BEDWELL
…........
PLAINTIFF
and
DAVE
PRETORIUS
…........
DEFENDANT
JUDGMENT
DU
PLESSIS. AJ
1.
The
Plaintiff claimed R 2,004,000.00 from the Defendant for damages which
the Plaintiff allegedly suffered as a result of the Defendant's
repudiation of a deed of sale dated 3 June 2007. The summons was
issued by the Plaintiff on 11 October 2011.
2.
The
sole issue for determination, is whether the Defendant's special plea
of prescription raised
in limine,
should be upheld or not.
3.
In
its particulars of claim, the Plaintiff relies on a written contract
of sale of a property
("
the contract')
known as Erf[ 3..], Tuna Street, Oyster Bay and dated 3 June
2007. A copy of the contract was attached to the particulars of claim
and at the commencement of the trial, the parties agreed that the
contract as referred to should be rectified to correctly reflect
the
intention of the parties by adding certain paragraphs as agreed to by
the parties, and attached to the pre-trial minute held
on 28 April
2016. Such an order was made.
4.
In
paragraph 12 of the particulars of claim, the Plaintiff relies on a
repudiation of the contract for its cause of action. Paragraph
12
reads:
"
12. On or about 2009, Defendant repudiated the contract
between the parties by selling the Oyster Bay property to
a
third
party, the Johannes Botha Family Trust, alternatively, on or about
May 2009, Defendant evicted Plaintiff from the Oyster Bay
property, alternatively denied the Plaintiff further use of the
Oyster
Bay property, which repudiation the Plaintiff has accepted,
alternatively, which
is accepted herewith."
.
5.
In
its plea, the Defendant raises a special plea that reads as follows:
"4.
In paragraph 12 of the particulars of claim, Plaintiff alleges that
on or about May 2009, Defendant repudiated the deed
of sale (amongst
others) evicting Plaintiff from
the Oyster
Bay
property, alternatively, by denying Plaintiff the further use
of the Oyster Bay
property.
5.
Defendant in fact evicted Plaintiff from the Oyster Bay
property on or about 8 April 2008, alternatively Defendant on
or about 8 April 2008, denied Plaintiff further use of the Oyster
Bay property."
6.
Defendant
then concludes in its plea that, as the repudiation of the deed of
sale occurred on the 81h of April 2008 and the Plaintiff
only issued
summons against the Defendant on or about 11 October 2011, the claim
against the Defendant has prescribed by virtue
of the provisions of
Section 11 of the Prescription Act, Act 68 of 1969.
7.
The
Defendant called one witness, Mr Pretorius and the Plaintiff Mr
Bedwell and his son Mr Bedwell Jnr.
8.
To
determine the repudiation, it is necessary to refer to the background
to this claim.
9.
The
Plaintiff and the Defendant were friends for many years. The
Plaintiff was the owner of a holiday home at Oyster Bay in the
Eastern Cape. During 2007, the Plaintiff needed money to complete a
guesthouse project and in order to gain access to further funds,
he
sold his holiday home in Oyster Bay to the Defendant for an amount of
R 1,850,000.00. The agreement was embodied in a contract
attached to
the particulars of claim and as rectified by Annexure "X"
as already referred to above. The property was
registered into the
name of the Defendant on 18 October 2007.
10.
The
contract determined that, as soon as the Plaintiff qualifies for a
bond in his own name to release the bond of the Defendant,
the
Defendant would retransfer the property into the name of the
Plaintiff. In the interim, the Plaintiff, his then wife and guests
had free and vacant possession of the property.
11.
Subsequent
to the transfer of the property into the name of the Defendant, the
relationship between the Plaintiff and the Defendant
deteriorated to
the extent that the Defendant no longer wanted to accommodate the
Plaintiff at the Oyster Bay property. When the
Defendant learned on 8
April 2008 that the Plaintiff and some of his friends are staying
over at the Oyster Bay property, he telephonically
instructed the
Plaintiff to leave the property and informed him that he would
henceforth no longer be entitled to occupy the property
and/or use
the property. This discussion of 8 April 2008 is not denied by the
Plaintiff and in his evidence Bedwell confirmed that
he regarded the
instructions of the Defendant Mr Pretorius to him as a threat and
that Pretorius is reneging on the contract between
them. The
Plaintiff left the premises the next morning, never to return to the
property subsequent to the incident on 8 April 2008.
12.
The
incident of 8 April 2008 lead to the Plaintiff writing a letter to
the Defendant on the same day. This letter is confirmed by
the
Plaintiff and reads as follows:
"
To: Dave Pretorius
Re:
Sale of dwelling at [3… ]Tuna Street, Oyster
Bay.
1.
I suggest that after your threats this afternoon, that we set up
a
polygraph test between the three of us and we have our statements
through your lawyers and my lawyer analysed. [NB: verbal agreements
are
binding].
2.
All assets in the house belong to
me
plus
the agreement of sale.
3.
Please reply on above fax
number.
Ken
Bedwell"
13.
The
Defendant in turn also sent letters via his attorneys to the security
company responsible for the security at the premises and
to Chas
Everitt (the Property Company), informing them that the Plaintiff
would no longer be entitled to occupy the premises. The
Plaintiff
confirmed in his evidence that, approximately two weeks subsequent to
the 8
th
of April 2008, he was phoned by a certain Mr
Sevenster and informed of the letter that the security company
received, denying
him access to the property. The Plaintiff never
visited the property again.
14.
Subsequent
to this incident and during 2009, the Defendant sold the property to
a third party. The Plaintiff claims that he only
learned of this sale
from his son during 2010. The Plaintiff's son gave evidence to this
effect.
15.
The
conduct constituting the repudiation is described by the Plaintiff in
paragraph 12 of the particulars of claim as follows:
15.1.
on or about 2009, the Defendant sold the Oyster Bay property
to a third party,
alternatively;
15.2.
on or about May 2009, the Defendant evicted the Plaintiff from
the Oyster Bay property
alternatively;
15.3.
denied the Plaintiff further use of the Oyster Bay property;
15.4.
which repudiation the Plaintiff has accepted.
16.
Defendant
admits that the sale as referred to above occurred during 2009, but
pleads that the
"evicted Plaintiff from the Oyster Bay
property"
and the
"denied
Plaintiff further
use
of the Oyster
Bay
property"
that are referred to in paragraph 12, occurred on the 8
th
of
April 2008. Plaintiff admitted in evidence that the incident referred
to in paragraph 12 of the particulars of claim, actually
occurred on
8 April 2008.
17.
The
question of prescription depends upon the date upon which the debt
became due. If it became due on 8 April 2008, the debt clearly
prescribed, as the Plaintiff's summons was served more than three
years after 8 April 2008.
18.
In
paragraph 4.3 of the pre-trial held on 28 April 2016, the parties
recorded as follows:
"4.3
The parties are in agreement that the crisp issue between the parties
pertained to the date when Defendant repudiated
the contract between
the
parties. Should the Court find in favour of the
Defendant, it will follow that the plea of prescription should be
upheld."
19.
Before
determining when the Defendant has repudiated his contractual
obligations it is opportune to reiterate the requirements for
repudiation of contractual obligations as referred to in
Datacolor
International (Pty) Ltd v lntamarket (Pty) Ltd
[2000] ZASCA 82
;
2001 (2) SA 284
(CSA)
at 294 (E -
H)
:
"Conceivably,
it could therefore happen that one party, in truth intending
to
repudiate (as he later confesses), expressed himself so
inconclusively
that he is afterwards held
not
to
have done
so;
conversely, that his conduct
may justify the inference that he did not propose to perform even
though he can afterwards demonstrate his good faith and his best
intentions
at
the time. The emphasis is not on
the repudiating party's state of mind, on
what he subjectively
intended, but on what someone in the position of
the
innocent party would think he intended to do; repudiation is
accordingly
not
a
matter of intention, it is
a
matter of
perception. The perception is that
of
a
reasonable person placed in the position of the aggrieved
party. Th
e
test is whether such
a
notional reasonable
person would conclude that
proper performance (in accordance
with
a
true interpretation of
the
agreement)
will not be forthcoming. The inferred intention
accordingly
serves as the criterium for determining the nature of the threatened
actual breach."
20.
Apart
from the reliance in paragraph 12 of the particulars of claim by the
Plaintiff on eviction from the property,
alternatively
denying
the Plaintiff the further use of the property as proper repudiation,
the Plaintiff (Mr Bedwell) in his evidence, confirmed
that the
discussion he had on 8 April 2008 with Mr Pretorius, led him to
believe that Mr Pretorius is no longer intending to comply
with his
obligations in terms of the contract. But, says Mr Bedwell, he never
understood from the discussion of Mr Pretorius, that
Pretorius would
be entitled to sell the house and not comply with the requirement
that the house is to be transferred back to the
Plaintiff once he is
in a position to obtain a bond in his own name.
21.
The
problem of course for the Plaintiff is that he relied on repudiation
of the contract of sale by the Defendant, which he accepted
and which
would then in turn entitle the Plaintiff to cancel the agreement and
claim damages from the Defendant. This the Plaintiff
indeed did.
22.
Whatever
the reasons of the Defendant were to deny the Plaintiff any further
access or occupation to the property, the subjective
intention of the
Defendant matters not. The enquiry is how a reasonable person in the
position of the Plaintiff, perceived the
discussion and instructions
of the Defendant to the Plaintiff. The Plaintiff himself described
the
"instructions"
of the Defendant to the Plaintiff
to vacate the property and deny him any further access to the
property, as
"threats" .
He recorded these
"threats"
in the letter quoted above.
23.
Paragraph
12 of the particulars of claim describes the conduct of the Defendant
as a repudiation of the contract. The repudiation
under these
circumstances, is a matter of perception of a reasonable person
placed in the position of Bedwell. Bedwell himself
understood that
performance by Pretorius of his obligations in terms of the contract,
would not be forthcoming. He admitted as
much. The fact that he did
not understand Pretorius to then be entitled to sell the property, is
neither here nor there. Apart
from the fact that this is not
contained in the contract, once repudiation of a contract is alleged
by the Plaintiff and accepted
as it is by the Plaintiff in this
instance, it is the end of the contract in its entirety and
prescription would start running.
24.
The
obligation of Pretorius to grant Bedwell unrestricted access and
occupation of the property constitutes a debt for purposes
of the
determination of prescription. The word 'debt' clearly includes any
liability arising from and being due to or owing under
a contract.
See
Leviton and Son v de Klerk's Trustee
1914 CPD 685
at 691,
HMBMP Properties (Pty) Limited v King
1981 (1) SA 906
(N) at 909 A -
B
.
25.
The
Plaintiff relies on the explicit terms of the contract as recorded in
paragraph 18 of the rectified contract that reads:
"Nieteenstaande
transport van die eiendom sal die verkoper in okkupasie van die
eiendom bly en ongestoorde besit van die eiendom
geniet tot op
tydstip van terug transportering van die eiendom aan die verkoper
deur die koper soos hierin later voorsien."
This
condition as read with paragraph 12 of the particulars of claim (that
the Plaintiff may no longer occupy the property ) and
as read with
the fax of the Plaintiff to the Defendant dated 8 April 2008, makes
it clear that the Plaintiff is not relying on
an implied or tacit
term of the contract. The principles of interpretation are set out in
Coopers and
Lybrand v
Bryant
[1995] ZASCA 64
;
1995 (3) SA 761
(A)
at 767 E - 768 E
:
"According
to the golden rule of interpretation the language in the document is
to be given its grammatical and ordinary meaning,
unless this would
result in some absurdity, or some repugnancy or inconsistency with
the rest of the instrument."
26.
In
interpreting the term of the contract, one is reminded never to
interpret the particular word or phrase in isolation
(in vacuo)
by itself. See
Swart
en Ander
v
Cape
Fabrix
(Pty)
Limited
1979 (1) SA 195
(A) at 202
C
(per Rumpff CJ):
"
Wat natuurlik aanvaar moet word, is dat, wanneer die betekenis van
woorde in 'n kontrak bepaal moet word, die woorde onmoontlik
uitgeknip en op 'n skoon stuk papier geplak kan word en dan beoordeel
moet word
om
die betekenis
daarvan te bepaal. Dit is vir my vanse/fsprekend dat 'n mens na die
betrokke woorde moet kyk met inagneming van die
aard en opset van die
kontrak en ook na die samehang van die woorde in die kontrak as 'n
geheel."
27.
Although
the Defendant's repudiation is explained in paragraph 12 of the
particulars of claim, this Court still has regard to the
context in
which the phrase is used in the contract, and its interim relation to
the contract as a whole, including the nature
and purpose of the
contract. I take cognisance of the background circumstances which
explains the purpose of the contract, i.e.
to matters probably
present in the minds of the parties when they contracted. Both
parties gave evidence regarding the background
and the purpose of the
contract. I have no doubt that the purpose of the contract was to
transfer the property in the name of the
Defendant and that the
Defendant would remain owner of the property for as long as the
Plaintiff fails to obtain a bond in his
own name and it is only then
that the Plaintiff would be obliged to retransfer the property into
the name of the Plaintiff.
28.
The
Defendant repudiated the contract and according to paragraph 12 of
the particulars of claim, the Plaintiff accepted the repudiation.
From then (8 April 2008), the impediment to litigation (if ever there
was one) was removed and the Plaintiff was entitled to institute
legal proceedings forthwith as soon as he has given notice.
Accordingly, prescription began to run no later than the giving of
notice. The Plaintiff regarded the conduct of the Defendant on 8
April 2008, as a clear indication that he no longer regarded himself
as bound by the contract and the Plaintiff accepted this repudiation
as such.
29.
Prescription
will only be interrupted by service on the Defendant (debtor) of any
process whereby action was instituted.
In Santam
Insurance
Company
Limited
v Vilakasi
1967 (1) SA
246
(A
), the majority judgement recorded at 253 H:
"It
is clear that the service referred to in Section 6(1)(b) (of the
Prescription Act 18 of 1943) which is consistent with
the clear
wording of Section 15(6) the Act that provides that: 'for the purpose
of this section, process includes a petition, a
notice of motion, a
rule nisi, a pleading in reconvention, a third party notice referred
to in any rules of court and any document
whereby legal proceedings
are commenced' must be service whereby action is instituted in a step
in the enforcement of the claim
or right. The underlying reason why
such a service interrupts prescription, is that the creditor has
thereby formally involved
his debtor in court proceedings for the
enforcement of his claim."
30.
The
Plaintiff issued summons against the Defendant on or about 11 October
2011, which is on a date more than three years after the
date on
which the Plaintiff's claim against the Defendant arose.
31.
Since
the repudiation, objectively occurred on 8 April 2008, prescription
had commenced to run in respect of the claim of the Plaintiff
against
the Defendant and summons was issued on 11 October 2011, the claim
have become prescribed.
32.
As
a consequence, I make the following order:
32.1.
The Defendant's plea of prescription
in limine
is upheld;
32.2.
The Plaintiff's claim is dismissed with costs, such costs consequent
upon the employment of Senior Counsel.
Case
number
….............
: 58497/2011
Matter
heard on
….........
: 5 May 2016
For
the Plaintiff
…...........
:.Adv J
Moller
…
Instructed
by
..................
: Lourens
Atorneys
.............
For
the Defendant
…......
: Adv BC
Stoop SC
Instructed
by
....................
: Pennels
Attorneys
Date
of Judgment :
5 September 2015