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[2015] ZAGPPHC 725
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Longueira and Another v Bashir and Others (21623/13) [2015] ZAGPPHC 725 (15 May 2015)
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
[GAUTENG DIVISION,
PRETORIA]
DATE:
15/5/2015
CASE NUMBER:
21623/13
In
the matter between:
RUI
DUARTE SOUSA
LONGUEIRA
FIRST APPLICANT
VERONICA LONGUEIRA
SECOND APPLICANT
and
CHARLOTTE
CATHERINA BASHIR
FIRST
RESPONDENT
CORNE
MYLES ATTORNEYS
SECOND
RESPONDENT
REGISTRAR
OF DEEDS, PRETORIA
THIRD RESPONDENT
JUDGMENT
DA
SILVA AJ
I
NTRODUCTION:
[1]
The First Applicant is married to the Second Applicant. On 21 March
2012 the Applicants concluded a purchase agreement with
the First
Respondent for the purchase of an immovable property in Daspoort,
Pretoria. The Second Respondent was the conveyancing
attorney who was
responsible for the transfer of the immovable property transferred in
terms of the purchase agreement.
[2]
The Applicants' notice of motion contains 31 prayers, and on studying
the Applicants' notice of motion it appears that the Applicants
seek
the following relief:
2.1
Confirmation of the cancellation of the purchase agreement and
ancillary
relief (prayers 1 - 10).
2.2
Alternatively, the Applicants seek an order that the transfer of the
immovable
property be declared null and void (prayers 11 - 24).
2.3
Further alternatively, the Applicants seek an order directing the
First
Respondent forthwith to effect the necessary repairs to the
electrical installation of the property in order to ensure full
and proper compliance with the relevant provisions of the
Occupational Health and Safety Act, Act 85 of 1983 (prayers 25 - 31).
[3]
The
First
and
Second
Respondents
each
filed
an
answering
affidavit
in
opposition
to
the
Applicants'
notice
of
motion.
The
First
and
Second
Respondents
raised
various
defences,
but the
gist
of
their
main
defence was
raised as a
point
in
limine,
namely
that the Applicants
should
have
foreseen certain factual disputes and
that as a result
thereof
the Applicants'
application
should
be
dismissed
with
costs.
[1]
[4]
At the outset I must also point out that the Applicants sought an
order condoning the late-delivery of the Applicants' replying
affidavit. The replying affidavit was filed approximately a year out
of time. The replying affidavit should have been filed on
4 June 2013
and in fact was filed on 10 June 2014. The Applicants explain that
settlement negotiations took place between the parties
at a
roundtable meeting which was scheduled for 20 June 2013. It appears
that draft settlement agreements were exchanged by the
parties, but
unfortunately the parties could not reach a settlement. Mr Van den
Ordel who appeared for the Respondents did not
oppose the application
for condonation and consequently I grant prayer 1 of the notice of
motion dated 10 June 2014, in that the
late- delivery of the
Applicants' replying affidavit is condoned.
BACKGROUND:
[5]
In order to understand these proceedings it is necessary to relate
the background leading to the present litigation. The Applicants
are
involved in the fresh produce industry. They were desirous of
purchasing a second property for investment purposes in order
to
provide five staff members with accommodation as they had to travel
far distances to work on a daily basis. They approached
Busy Bee
Properties in order to assist them to search for a suitable property.
One Willem of Busy Bee Properties introduced
them to the
property known as [.....], Daspoort, Pretoria. The property consisted
of a house and two flats and the Applicants were
immediately
interested in the property because they could accommodate their staff
in the house and let the two flats in order to
earn an additional
income to cover the maintenance and related expenses of the property.
[6]
On 21
March 2012 the Applicants signed the purchase agreement
[2]
and it
appears
that the First Respondent accepted the offer to purchase on the same
day.
[7]
The express terms of the purchase agreement are the following:
7.1
The Applicants would purchase from the First Respondent the immovable
property described as the
Remaining Extent of [.....], Daspoort
Township, Registration Division J.R. Gauteng Province, or commonly
known as [.....], Daspoort,
Pretoria for an amount of R570 000.00.
7.2
The purchase price was to be deposited by the Applicants with the
conveyancer within 14 days of
acceptance of the offer and the
purchase price would be payable to the First Respondent upon
registration of the transfer of the
property into the names of the
Applicants.
7.3
Occupation of the property would be given and taken by the Applicants
on the date of transfer.
7.4
Should either party breach any provision of the agreement and fail to
remedy such breach within
7 calendar days after despatch of written
notice requiring such breach to be remedied, the aggrieved party
shall be entitled, without
prejudice to any other rights in law, to
cancel the agreement forthwith or claim immediate specific
performance of all the defaulting
parties' obligations, whether or
not due for performance in either event without prejudice to the
aggrieved parties' rights to
claim damages.
7.5
The parties chose their
domicilium
citandi
et
executandi
for all purposes under the agreement the
address stated under their respective names in the agreement.
7.6
The First Respondent would obtain, at her expense, a certificate of
compliance for the electrical
installation in accordance with the
regulations under the Occupational Health and Safety Act, Act 85 of
1983.
[8]
The First Applicant testified that their bank had brought it to the
Applicants' attention that the offer to purchase had expired
and that
a new contract was required before the money could be paid over.
[9]
On 29 May
2012 the Applicants
and the
First Respondent entered into a written
addendum
to
the
purchase
agreement.
[3]
It
is
clear
from
the
written
addendum
that the
parties
intended to
revive the
original
purchase agreement. The written addendum was admitted by the First
Respondent
[4]
and
the
Second
Respondent
[5]
and
the
agreements
are
common
cause
between
the
parties.
[10]
The express terms of the written addendum were the following:
10.1
The ceiling boards in the flat facing the road must be fixed.
10.2
The 4 Geysers must be in working order.
10.3
The electrical metre that is missing must be replaced.
10.4
The tenants are to get immediate 1 months' notice after the
guarantees
are delivered.
10.5
The following additional conditions were added by the addendum:
10.5.1
Should the occupants of the property not vacate the premises by the
time
transfer had been taken place an amount of R4 000.00 per month
shall be levied against the First Respondent for as long as the
tenants remained on the property.
10.5.2
The funds shall be paid into the conveyancer's trust account and be
invested in an interest bearing account until date of registration of
the transfer.
10.5.3
The Applicants reserve the right to sign the transfer documents only
after inspection of the property and after the certificate of
compliance had been issued.
[11]
The full purchase price was paid by the Applicants into the trust
account of the Second Respondent in compliance with the Applicants'
obligations in terms of the purchase agreement. The Applicants
thereafter made enquiries in regard to when they could occupy the
property.
[12]
The First Applicant attended at the property on 25 August 2012 and
upon his arrival he found that none of the work that was
supposed to
have been done to the property in terms of the agreement had been
done. There was no running water or electricity supply
on the
property and the electrical installation was in a very dangerous
state. He testified that there were open plugs and exposed
electrical
wires. He stated that he could not start with any repairs to the
property due to the fact that there was no running
water and no
electricity supply to the property.
[13]
At that
stage the
Applicants
approached
an
attorney,
Ms
Janette
Rodrigues
for
assistance and she
wrote a
letter
dated
4 September
2012 pointing out that the conditions contained in
the
main
agreement and
the
addendum
had not
been complied with,
but that
the
registration
of the property had been proceeded with.
In
a letter
dated 6 September 2012
[6]
the
Second
Respondent
replied to
the
aforesaid
letter and
stated
the
following in
paragraph
2
of
the letter:
'
We
agree with vou that the conditions in the
agreement had not been
finalized
or
partially finalized but as discussed with
your client, we agreed to
start
work
as
soon
as
they
have
taken
occupation
or
made arrangements
for someone to
look after the house.
The area
where the
property
is
situated
to
prone
to
vandalism
whe
1
left uninhabited. The electrician
issued
the
electricity
certificate
of compliance
on
the 6
th
August
2012 (a copy attached hereto).
The
plumber
brought the new
geyser
and it was installed
on the B1h
August
2012.
Both
the electrician
and the plumber
already
received
payment
and
the seller gave
us
instructions
to transfer the money to buy the material
to fix the ceiling and gutter."
(My emphasis).
The
certificate of compliance had apparently been issued by an
electrician, a certain Mr MJ Venter.
[14]
Ms Rodrigues conducted a deeds search on 5 September 2012 and
established that the property had been registered in the Applicants'
names on 6 August 2012. At that stage Ms Rodrigues established that
there was an amount of R50 817.72 outstanding in respect of
the
municipal account which was due to the City of Tshwane Metropolitan
Municipality.
[15]
The Applicants approached another electrician, Mr GE Venter who found
that the electrical installation was not reasonably safe
and that it
did not comply with the SABS 0142 Wiring Code and the
Electrical
Installation Regulations.
[16
]
During
early October 2012 the Applicants
approached
Mr Piet de Jager of PG
de Jager
Attorneys, who addressed a letter dated 9 October 2012 to the
Respondents.
[7]
The
letter was
directed to
the
First
Respondent's
domicilium
citandi ex executandi
and
in the aforesaid letter Mr De Jager said the following:
"1.
Take notice that you have been notified of material breach of the
above deed of sale on 25-09-2012, in writing, by my colleague
J
Rodrigues,
and
you
have
failed
to
rectify
tt.e
said
breach.
2.
Take
further notice in terms of clause 6
of the "Offer
to
purchase",
of the following:
2.1
1 Ad clauses 12,
16.
The
Certificate of Compliance,
tendered
by the
seller.
is
invalid and as such.
rejected
by the purchaser. (Annexure
" hereto)
2.2
Ad
addendum
2.3
The purchasers
were never informed of
a
time to inspect the property,
alternatively,
of
a
time to sign transfer
documents.
2.2.A
If
this notice,
2.2,
in terms of clause
6, is
disputed, kindly forward:
2.2.A.1
A
copy
of your
notice
to
carry
out inspection of the
premises.
2.2.A.2
A copy of the signed transfer
documents.
3.
Take further notice that statements
reflecting
the route of monies paid by the Purchasers are requested.
The calculation of interest earned should also be reflected in
the statements.
4.
In terms
of clause 6,
you have
7 (seven)
days
to
comply.
failure of
which will afford
the
Purchasers
the
right
to cancel
the agreement and demand
restitution."
(my emphasis)
[17]
In
a letter
dated 15
October
2012 the Second Respondent confirmed that she
had
attended
to
the
transfer
of
the
property.
[8]
The
Second
Respondent
stated in reply that she had given a copy of the Inspection
Authority's
report to
the electrician who had issued the certificate. She stated that she
had informed the electrician that
it was
concluded
that there
was no
match
between the issued
certificate
of compliance and
the actual
installation.
She
suggested
to
the
electrician
that
he
should
comply
with
the
regulations
as
stipulated
in
the
report,
failure
of
which would
result in
the matter
being handed over to the
Department
of Labour.
[18]
On
18
October
2012
[9]
Mr
De
Jager
stated
in a
letter
that
unless
a
valid
and
fully
compliant
certificate
of
compliance
was
issued
before
26 October
2012,
the
Applicants
would exercise
their right
to
cancel
the
agreement
and claim
restitution
and
damages.
In
the aforesaid
letter Mr
De Jager stated that all necessary
repairs to
the electrical system
should be
effected
before
the
certificate
of
compliance
is
issued
and
that
the
Applicants insisted
that
an
electrical
contractor
nominated
by
them
be present
during
the final
inspection
before the
issuing
of the
certificate
of
compliance.
[19]
In
reply,
in
a
letter
dated
26
October
2012
[10]
the
Second
Respondent
stated the
following:
"1.
I
t is now abundantly clear that the electrician, who
issued the
COG
(Certificate of Compliance),
is refusing and/or neglecting
to
fix the
electrical wiring;
2.
Our
client
is
willing to
appoint
a
reliable electrician,
Mr Oouw Kleynhans. Mr
Kleynhans
has
already
met
with
our
clients
and gave them
a
quotation.
3.
Our clients
will pay
Mr Kleynhans'
account
and should your
client
want to have any extra work done,
such
work
will then be for their account."
(My emphasis).
[20]
In
reply,
in
a
letter
dated
2
November
2012
[11]
addressed
to
the
Second
Respondent,
Mr
De
Jager,
stated
on
behalf
of
the
Applicants
that
the
Applicants
were
prepared to
accept the
First
Respondent's
proposal,
but there
were
certain
conditions
that
had
to
be met.
He set
out
the
conditions to be met in the letter of 2 November 2012.
[21]
In
a
l
etter
dated
7
November
2012
[12]
Mr
De
Jager
addressed
a
further
letter
to
the
Second
Respondent
on
behalf
of the
Applicants
and
stated the
following
at
paragraph 3 of the letter:
"3. Jy
moet
baie
duidelik
met
mnr
Kleynhans kontrakteer.
Vo/gens
die verslag van GJ Venter
sal
die elektriese
installasie eerder R200 000.00
as
R60 000.00
kos om
te
voldoen aan die
C.O.C.
3.
1
Die
C.O.C.
se geldigheid
sal
voor aanvaarding,
en
ondertekening
van
die
hereregteverklaring
weer
deur
GJ Venter van Electrical Circuit ondersoek
moet word...".
[22]
In a
further
letter
dated
15
November 2012
[13]
Mr De Jager
set
out further
conditions
in regard to the payment of the electrician, Mr Kleynhans.
[23]
On 15
January
2013
[14]
Mr
De
Jager
addressed a
further
letter
to
the
Second
Respondent
in regard
to the fulfilment
of the
"agreement"
which had
been reached in regard to obtaining the certificate of compliance.
[24]
The
Second
Respondent
replied
to
the
aforesaid
l
etter
on
21
January
2013
[15]
and
stated
that
she
could
not
trace
the
First
Respondent.
She
then
deals
with
further
terms
that
had
to
be
complied
with
in
order
to
achieve an
agreement
between the
parties.
[25]
Mr De Jager
then wrote
a further
letter on
22 January
2013
[16]
stating
that
if
an agreement
had to
be achieved
by the
parties three
phase
electricity had to be installed on the property.
[26]
It
appears
from
the
papers
that
the
parties
made
a
valiant
attempt
in order to
attempt to reach some type of arrangement
in regard
to how the certificate of compliance would be obtained and in regard
to the electrical installation
that
would
be
installed
on
the
property.
The
First
Applicant concludes
his
evidence
in
regard to the electrical
installations
by stating
that as at 21 January 2013 a compromise could not be achieved between
the
parties.
[17]
1t
appears
that
negotiations broke
down
at
that
stage.
[27]
It must be pointed out that the letters that I have referred to above
are not disputed by
the First
and
Second
Respondents. In
dealing
with
the various
letters the
First
Respondent
states
that
these
paragraphs
are
a
duplication of
the
content of
the
letters
and
e-mails
which
were
exchanged
between
the
Applicants'
attorneys
and
the
Second
Respondent.
[18]
The Second Respondent adopts a similar attitude.
[19]
[28]
From the aforesaid it is clear that the certificate of compliance
which had purportedly been issued on behalf of the First
Respondent
in terms of the purchase agreement did not comply with the provisions
of the purchase agreement. On a proper consideration
of all the
evidence it appears from the papers that the
certificate of compliance tendered
by
the First Respondent did not comply with the provisions of
clause 12 of the purchase agreement.
[29]
From the evidence set out above and more particularly paragraphs 17
and 19 above, it is clear that the Second Respondent on
her own
version rejected the certificate of compliance. At all material times
she was representing the First Respondent.
[30]
Mr Grundlingh who appeared for the Applicants submitted in argument
that the Respondents' version that the electrical installation
was in
a proper condition on 6 August 2012 and that a valid certificate of
compliance was issued in respect thereof, is not only
far-fetched,
but is inherently improbable and palpably false. He submitted that
the tests required for a valid certificate of compliance
could only
be conducted if there is a supply of electricity to the electrical
installation. I agree with this submission. Consequently,
I reject
the Respondents' version that a proper and valid certificate of
compliance was tendered by the First Respondent on 6 August
2012.
[31]
It is clear from the letter written by Mr De Jager dated 9 October
2012, Annexure "P" to the founding affidavit,
that the
First Respondent was put on terms in terms of clause 6 of the
purchase agreement. At paragraph
68
of the founding affidavit the First Applicant states
that the First Respondent has failed to remedy the
breach and
the Applicants have cancelled the agreement, alternatively, cancel
the agreement herewith.
CANCELLATION
OF THE AGREEMENT:
[32]
Prof Christie
in
"
The
Law
of
Contract
in
South
A
frica"
[20]
states
the
following in regard to the cancellation of an agreement:
"If
the
contract
lays
down
a
procedure
for
cancellation, that
procedure must be followed or
a
purported
cancellation will be ineffective."
[33]
In considering
whether
the
purchase
agreement
has been
properly
cancelled by
the
Applicants,
it
is
instructive
to
consider
the
approach
adopted
by
the
court
in
the
matter
of
Bekker
v
Schmidt
Bou
Ontwikkelings
CC
and
Others
[21]
.
At
paragraph
11
the
Learned Judge summarises the position as follows:
"[11] The
breach
clause
referred to
in
th€ preceding paragraph contemplates
placing the
purchaser in
mora
in
the
event
of
breach.
It provides that
the
seller,
in
the
event
of
a
breach
of
any
material
term and
condition
by
the
purchaser, shall
call
on
the
purchaser
to
remedy such
breach within
seven (7)
days
of
despatch of
a
notice
calling
on her
to remedy
the breach.
The notice must
stipulate
the
nature
of the breach.
The
notice
should be sent to the purchaser
per prepaid registered
post. It is only in the event of the purchaser failing to remedy the
breach
within
seven
(7)
days
of
despatch
of
the
notice
that
the
seller
can
proceed to
cancel
the
agreement
and
invoke
any
of
the remedies available as set out
in the breach clause. The seller must rely on the
provisions
of the cancellation clause to cancel the contract."
[34]
In considering all the evidence I am of the view that the Applicants
have complied with the provisions of clause 6 of the purchase
agreement. In Mr De Jager's letter dated 9 October 2012, Annexure "P"
to the founding affidavit, it is clearly set out
that the certificate
of compliance tendered by the First Respondent is invalid and was
rejected. This establishes a breach of the
purchase agreement by the
First Respondent. In the aforesaid letter the Respondents were given
7 days in which to comply with the
purchase agreement and failing
such compliance the Applicants would have the right to cancel the
agreement and demand restitution.
The First Respondent failed to
remedy the breach. It is clear that the Applicants have cancelled the
purchase agreement as appears
from paragraph 68 of the founding
affidavit.
[35]
In
regard
to
the
payment
of
an
amount
of
R11.281.80
the
Applicants state
that
they
paid this
amount
to
effect
the
transfer
of the
property
into
their
names
and
that
they
are
entitled
to
repayment
of
such
an
amount.
[22]
The First
Respondent does not dispute this evidence. The
First
Respondent
merely
states at
paragraph 31
of
the
answering affidavit that she cannot comment
on the
payment
made by the
Applicants
but denies
that the Applicants
are
entitled
to
repayment
of the
transfer costs.
[23]
The
Second Respondent adopts a similar attitude
in her
answering
affidavit.
[24]
I am of the
view that
if the
Applicants
are
entitled
to
the
cancellation
of
the
purchase
agreement
then
they
would be
entitled
to
payment
of
the
sum
of
R11
281.80.
[36]
With
reference
to
the
payment
of
the
sum
of
R8 547.33
which
the
Applicants paid
to the City
of
Tshwane
Metropolitan Municipality in
order to
transfer
the
municipal
account
into
the
name
of
the
Applicants,
the First Respondent appears to adopt a similar attitude. The First
Respondent
states that
she is not in a position to admit or deny any payments made to the
City of Tshwane
Metropolitan
Municipality.
[25]
The Second
Respondent testifies in
a similar
vein.
[26]
[37]
It appears from the aforesaid
facts that
there
is
no real dispute of fact as
is
envisaged
in
Room
Hire
Co
(Pty)
Ltd
v
Jeppe
Street
Mansions
(Pty)
Ltd.
[27]
The
evidence
tendered
by the
Applicants
in regard
to the
breach of
the purchase agreement, the non-fulfilment
of the
breach by the First Respondent and the cancellation of the purchase
agreement is not
contradicted
by
the
First
and
Second Respondents.
[38]
In the light of the aforesaid I come to the conclusion that the
Applicants have correctly cancelled the purchase agreement
and that
they are entitled to all the concomitant relief that accompanies such
a cancellation.
[39]
In the light of the aforesaid finding, I believe that it is not
necessary to consider the alternative relief claimed by the
Applicants as set out in paragraphs 2.2 and 2.3 above.
ATTORNEY
AND
CLIENT
COSTS:
[40]
In paragraph 8 of the Applicants' notice of motion the Applicants
seek an order against the First Respondent that the First
Respondent
be ordered to pay the costs of the application on 'the attorney and
client scale. Attorney and client costs are the
cost an attorney is
entitled to debit from a client for the disbursements made on behalf
of the client for his professional services.
It includes all the
costs that the attorney is
e
ntitled to recover against the
client on taxation of the bill of costs, but in the narrow and more
technical sense the term is applied
to those costs, charges and
expenses as between attorney and client that ordinarily the client
cannot recover from the other party.
[41]
In
The
Law of South Africa
[28]
the learned
author in dealing with attorney and client costs
states
the
following:
"The
ordinary
rule
is
that
the
successful
party
is
awarded
costs
as between party
and party. An
award of attorney and client costs
is not lightly granted by the court. The court leans against awarding
attorney and
client
costs
and
will
grant
such
costs
only
on
rare
occasions,
normally
only
where special
grounds
are present.
A party
should not be
penalised if
he
or
she
is
misguided
in
bringing
a
hopeless
case
before the
court.
The
court
will
not, however, hesitate
to
award attorney
and
client
costs
where
there
is
an
absence
of bona
tides
in bringing or
defending an action."
[42]
I am of the view that in considering all the facts of this case the
Respondents' conduct cannot be classed as one of those
"rare"
cases. If I were to grant a special order for costs in this matter, I
am of the View that there would be no distinction
between this matter
and all the other matters that are on the roll and that all litigants
would be entitled to a special order
for costs.
[43]
I am of the view that the Applicants are entitled to their party and
party costs, but not to costs on a punitive scale.
[44]
A further aspect that I took into consideration was whether the
Second Respondent should be mulcted with a costs order. In
prayer 9
the Applicants state that they seek costs against all the Respondents
who oppose this application. The Second Respondent
opposed the
application. However, I take into account that the Second Respondent
was in fact acting as the First Respondent's attorney.
In exercising
my discretion I believe it fair and equitable that the First
Respondent bears the costs of these proceedings and
not the Second
Respondent.
CONCLUSION:
[45]
In considering all of the above factors I am of the view that the
Applicants are entitled to an order confirming and cancelling
the
purchase agreement together with the attendant relief that follows
such an order.
[46]
In the premises, I grant an order in the following terms:
1. The cancellation by
the Applicants of the purchase agreement concluded by the Applicants
and the First Respondent dated 21 May
2012, which is
annexed to the founding affidavit
as Annexure "A",
is hereby confirmed.
2. That the First
Respondent be ordered to repay the purchase price of the property
described as [.....], Daspoort Township, Registration
Division J.R.
Gauteng Province, more commonly known as [.....], Daspoort, Pretoria
in the amount of R570 000.00 to the Applicants
against delivery of
the property.
3. That the First
Respondent be ordered to pay the amount of R11 281.80 to the
Applicants, being costs, fees and expenses paid by
the Applicants in
respect of the transfer of the property.
4. That the First
Respondent be ordered to pay the amount of RS 547.33 to the
Applicants, being the amount paid by the
Applicants in respect
of the transfer of the municipal account in respect of the property
into their names.
5. That the First
Respondent be ordered to pay all the costs associated with the
re-transfer of the property into her name.
6. That the First
Respondent be ordered to take all steps necessary to effect the
re-transfer of the property into her name and
to sign all
documentation necessary for such purpose within 10 (ten) days from
the date of this order, failing which the Sheriff
or his Deputy be
authorised to sign all the documentation necessary on behalf of the
First Respondent in order to effect the re-transfer
of the property
into the First Respondent's name.
7. That the First
Respondent be ordered to pay the costs of this application.
SIGNED
AT PRETORIA ON THIS
11
th
DAY OF MAY 2015.
_____________________________
CA DA SILVA
ACTING JUDGE OF THE
COURT
(GAUTENG DIVISION,
PRETORIA)
[1]
First
Respondent's
point
in
limine
is
raised
at
p128
-
130
of
the
paginated papers
and
the Second
Respondent's
point
in
limine
is
raised
at
p151
-
152
of
the
paginated
papers.
[2]
Annexure "A" to the founding affidavit
[3]
The addendum appears as Annexure "E" to the paginated
papers.
[4]
First Respondent's answering affidavit, at p131 para 12 of the
paginated papers
[5]
Second Respondent's answering affidavit, at p157 para 12 of the
paginated papers.
[6]
Annexure "H" at p 77 of the paginated papers
[7]
The
letter
is annexed
as
Annexure
"P"
at
p92
of the
paginated
papers.
[8]
The
letter
by the
Second
Respondent
dated
15 October
2012
is annexed
to the
paginated
papers as Annexure
"Q"
at
p
93.
[9]
Annexure
"R"
to
the
paginated
papers
[10]
Annexure "X" to the paginated papers
[11]
Annexure
"Y"
to the
paginated
papers
[12]
Annexure "Z" to the paginated papers
[13]
Annexure
"C"
to
the
paginated
papers
[14]
Annexure "GG" to the paginated papers
[15]
Annexure "II" to the paginated papers
[16]
Annexure "JJ'' to the paginated papers
[17]
At
p52,
para 66
of the
founding
affidavit.
The
Respondents
admit a
break down
in
negotiations
in their
answering
affidavits.
[18]
Answering affidavit, p134, para 21 of the paginated papers.
[19]
Second Respondent's answering affidavit p162, para 27.
[20]
(6th
Edition),
LexisNexis, at p562
[21]
2007
[4] All SA 1231 (C).
[22]
Founding
affidavit
p53
para 70 of
the
paginated
papers.
[23]
First Respondent's answering affidavit p137 para 31.
[24]
Second Respondent's answering affidavit p165 para 37.
[25]
First Respondent's answering affidavit p138, para 32.
[26]
Second
Respondent's
answering
affidavit
p165 para
38.
[27]
1949 (3) SA
1155
(T)
at
1163
[28]
(2nd Edition) Volume 3
Part 2
at para 320