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[2016] ZAGPPHC 805
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Humphries and Another v Import Export 2020 (Pty)Ltd (92006/2016) [2016] ZAGPPHC 805 (9 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION,
PRETORIA)
REPORTABLE
OF
INTEREST TO OTHER JUDGES
Case
No: 92006/2015
DATE:
9/9/2016
In
the matter between:
LOURENS
JOHANNES
HUMPHRIES
................................................................
1
st
Applicant
ZACHARIA
GERTRUIDA MAGDALENA HUMPHRIES
.....................................
2
nd
Applicant
and
IMPORT
EXPORT 2020 (PTY)
LTD
....................................................................
Respondent
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
HF
JACOBS, AJ:
[1]
The respondent applies for leave to appeal in terms of
section
17(1)(a)(i)
of the
Superior Courts Act 10 of 2013
. The respondent
submits that an appeal would have a reasonable prospect of success
for an order dismissing the application with
costs.
[2]
The outstanding contractual obligation the respondent was by its own
admission bound to perform was registration of transfer.
The
appointed conveyancer and the seller of land could, objectively
viewed, not have interpreted the letter of 15 May to mean anything
but to demand registration of transfer or presentation of the
documents to be submitted to the Deeds Registry for that purpose
within 7 days. I am of the opinion that there exists no reasonable
prospects of success that a Court of Appeal would find otherwise.
[3]
Paragraphs 1-3 of the notice of appeal suggests that the finding was
arrived at by placing an onus on the respondent to prove
that the
letter of demand did not provide for a reasonable time to the
respondent to perform its obligation. It is not correct
as appears
from paragraph [7] of the judgment. The letter of demand and
cancellation has not been considered in isolation. The
letter of
demand must be considered in context by having regard to the facts
set out in the affidavits which are mostly common
cause.
[4]
When the applicants demanded performance from the respondent on 15
May 2015 the tender to perform later recorded in paragraph
11 of the
letter of cancellation of 12 October 2015 did not oblige the
applicants to accept the tender and did not cause them to
abandon
their right of cancellation. The respondent was at that stage
in
mora
and remained
in
mora.
Mr Van Heerden on behalf of the respondent insisted that 2 months
would be required to effect transfer of the property. Two months
passed and the transfer was still not registered. The respondent
remained
in
mora
for a further 5 months
until cancellation of the contract on 12 October 2015. The conduct of
the respondent did not purge its default.
On its own account of the
events it fell
in
mora
and remained
in
mora
for 2 months and beyond until the contract
was, again, cancelled.
[5]
When the respondent sought 2 months from the applicants to register
transfer
of
the
property
and still
failed
to
do
so,
it fell
in
mora
ex
lege.1
[1]
On
the
respondent's
own
account it
could
and
did
not
perform
its
obligation
within
two
months
(or 60
days).
The
applicants
showed
that
they
afforded
the
respondent
the time it requested to register transfer. That
self-imposed
period must have been reasonable and, when the respondent failed
to perform
its obligation, the applicants became entitled to cancel the
contract as
they did on 12 October 2015. The conduct of the respondent seeking
the 2 month
extension or its belated letter of the transfer attorney did not
alter the position and, in my view, did not preclude
the applicants
from cancelling the contract.
[6]
I am not of the opinion that there exists a reasonable prospect of
success that a Court of Appeal might find otherwise. Under
the
circumstances the application for leave to appeal is dismissed the
costs.
_________________________________
H
F JACOBS
ACTING
JUDGE OF THE HIGH COURT
Date:
9 September 2016
HUMPHRIES
& HUMPHRIES V IMPORT EXPORT 2020-DISMISSAL OF LEAVE TO APPEAL
[1]
Boland Bank Ltd v Pienaar & Another
1988 (3) SA 618
AD;
Middelburg se Stadsraad v Trans-Natal Steenkoolkooperasie
1987 (2)
SA 244
TPA at 248H.