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[2015] ZAFSHC 54
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Majiedt N.O. and Others v Valodia (A37/2014) [2015] ZAFSHC 54 (26 February 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION:
BLOEMFONTEIN
Appeal
Number: A37/2014
In the matter between:-
DONOVAN THEODOR MAJIEDT N O
& TWO
OTHERS
…...................................................................................................
Appellants
and
HASSAN MAHOMED
VALODIA
….......................................................................
Respondent
CORAM:
JORDAAN
J,
et
DAFFUE, J
et
NAIDOO,
J
JUDGMENT:
DAFFUE,
J
HEARD ON:
24
NOVEMBER 2014
DELIVERED:
26
FEBRUARY 2015
I
INTRODUCTION
[1] This is an appeal to the full bench
of the Free State High Court against the judgment of De Wet AJ, leave
to appeal having been
granted by the Supreme Court of Appeal on 24
January 2014.
[2] The
dramatis personae
are the
following: The appellants who are the trustees of the insolvent
estate of the Barkley Road Development Trust (“the
trustees”),
the respondent and applicant in the initial proceedings in the court
a quo
, to wit Hassan Mahomed Valodia (“Valodia”);
Cooper Bezuidenhout Inc (“Cooper Bezuidenhout”), a firm
of
attorneys cited as first respondent in the court
a quo
but
which did not feature as a party in the further proceedings and
finally, the Haripersad Trust and/or its trustees (“the
Haripersad Trust/trustees”, as the case may be).
[3] The court
a quo’s
orders read as follows:
“
1.
The second, third and fourth respondents (the trustees in the appeal)
are declared to have concluded a valid and binding agreement
for the
purchase and sale of the immovable property described as erf 24957
Galeshewe (on which a shopping centre is situated) physically
situated in Barkley Road and Seochoreng Road, Galeshewe, Kimberley,
Northern Cape with the applicant (Valodia) and that the agreement
has
not been cancelled by the respondents, but by the applicant after
such agreement was repudiated by the aforesaid respondents
and the
repudiation was accepted by the applicant.
2. Second, third
and fourth respondents are directed to pay the amount of
R3 393 750.00 to the applicant.
2.1 Second, third
and fourth respondents are directed to pay interest at the rate of
15.5% per annum a tempore more to the applicant.
3.
Second, third and fourth respondents are jointly liable for the costs
of the application, including the costs of 25 June 2013.”
[4] Adv FH Terblanche SC assisted by Adv
JW Steyn, appeared for the trustees before us, whilst Adv PU Fisher
SC appeared for Valodia.
II
THE ISSUES AS DEFINED IN THE
APPLICATION PAPERS
[5] Valodia sought a declaratory order
in terms whereof the deed of sale concluded between the trustees and
himself in respect of
the aforesaid property be declared valid and
binding and not having been cancelled by the trustees. He also
sought an order
for the payment by Cooper Bezuidenhout and the
trustees jointly and severally of the amount of R3 393 750.00
which was
paid by him as a deposit in respect of the aforesaid
transaction as well as the costs of the application. It has
always been
Valodia’s case that he borrowed the money to pay
the deposit. The lender turned out to be – on Valodia’s
version - the Haripersad Trust.
[6] It is the trustees’ case that
although the deed of sale entered into with Valodia was not formally
cancelled, they entered
into a new agreement with the trustees of the
Haripersad trust as this trust paid the deposit and not Valodia, that
Valodia was
fully aware of the new transaction and the eventual
cancellation thereof by the trustees following Haripersad trustees’
breach
of contract and that Valodia and the Haripersad trustees are
in cahoots in that they devised a scheme in terms whereof Valodia
would claim the deposit, which the Haripersad trustees could not
claim due to its breach and the consequent cancellation of their
deed
of sale.
[7] The trustees also rely on the fact
that Valodia had the right in terms of the first deed of sale to
appoint a nominee and that
he appointed the HaripersadTrust as his
nominee.
[8] The trustees also rely on estoppel,
claiming that Valodia should be estopped from relying on the fact
that he was the actual
purchaser.
[9] It is evident that the above deposit
was paid to the appointed auctioneer and not to Cooper Bezuidenhout,
although Cooper Bezuidenhout
received the amount of R1 778 990,37
from the auctioneer after having deducted his fees and expenses.
When Valodia
was confronted with this aspect in the answering
affidavit, he indicated that he would proceed with joinder
proceedings, but the
auctioneer was never joined.
III
THE FINDINGS OF THE COURT
A
QUO
[10] The court
a quo
found:
1. the deposit was
paid by Valodia as alleged by him, he having borrowed the money from
a third party who transpired to be the Haripersad
Trust, which trust
transferred the money directly to the account of the auctioneer;
2. the version of
Ms Norval of Cooper Bezuidenhout regarding Valodia’s verbal
nomination of the Haripersad Trust as purchaser
was not acceptable
and that in any event, the deed of sale required a written
nomination;
3. the trustees
ignored the first deed of sale in the absence of any written
confirmation and/or authority from Valodia and concluded
a second
deed of sale with the Haripersad Trustees which they eventually
cancelled, where after the property was sold and transferred
to a
third party;
4. the trustees
never invoked the provisions of clause 15 of the deed of sale
relating to cancellation vis-à-vis Valodia
and they therefore
repudiated the agreement with Valodia which repudiation he accepted,
entitling him to restitution of the full
deposit;
5. although there
might be a suspicion that Valodia and the Haripersad trustees were in
cahoots, it could not make such a finding
on the papers;
6. consequently, a
valid deed of sale having been entered into between the trustees and
Valodia, which has been repudiated by the
trustees, which repudiation
was accepted by Valodia, he was entitled to restitution and
return of the deposit of R3 393 750.00.”
IV
GROUNDS OF APPEAL
[11] The main grounds of appeal can be
summarised as follows:
1. The court
erred in directing payment of R3 393 750.00 whereas the
trustees and Cooper Bezuidenhout, the firm
of attorneys acting on
their behalf, received the amount of R1 778 990.37 only (as
their auctioneer kept the balance).
2. The court
a quo
erred in ignoring the e-mails (referred to above)
indicating that Valodia at the very least never objected to the
conclusion of
the new deed of sale and thereby indicating his
agreement therewith.
3. It erred
in not finding that it was in fact the Haripersad Trust which made
the deposit.
4. It erred
in not accepting Ms Norval’s version that Valodia had nominated
the Haripersad Trust and that his behaviour
was indicative of a
stepping away and abandoning of the transaction.
5. In not
finding that Valodia and the Haripersad Trustees were in cahoots.
6. In not
finding that Valodia’s attempt to rely on the Shifren principle
could not be countenanced in circumstances
that offended public
policy.
V
SALIENT COMMON CAUSE FACTS IN
CHRONOLOGICAL ORDER
[12] I refer to the following facts in
chronological order, and insofar as there might be differences
pertaining to these and the
allegations under oath, I rely on the
objective facts as apparent from the documentation attached to the
papers.
1. On
12 December 2012 the auctioneer appointed by the trustees
conducted an auction of the above property on behalf of
the
trustees. Valodia’s telephonic bid was accepted.
2. Valodia signed
the deed of sale the same day, it having been faxed to him. The
words “or nominee” were written
in just after Valodia’s
surname on the last page of the document.
3. On
19 December 2012 the deposit of R3 393 750.00 was
paid into the bank account of the auctioneer by way
of an electronic
funds transfer (EFT)..
4. On
20 December 2012, a day later, the trustees signed the deed
of sale.
5. On
21 December 2012 one Vishal, apparently one of the
Haripersad trustees, sent an e-mail to the auctioneer, informing
him
that all further instructions pertaining to the transaction would be
given by the Haripersad family, that the deposit was paid
by the
Haripersad Family Trust and not Valodia and furthermore, that Valodia
would not be included in the further development of
the transaction.
On the same day Valodia caused the Haripersad Trust Deed and letters
of authorisation to be sent to Ms Norval
of Cooper Bezuidenhout - his
version being that he intended to conclude a back-to-back transaction
with the trust pertaining to
the property..
6. Still on
21 December 2012 Ms Norval sent transfer documents to
Valodia by e-mail to be signed by him in his personal
capacity as
purchaser.
7. On 9 January
2012 Ms Norval sent amended transfer documents to be signed by the
“appointed trustee of the trust”
by e-mail. The
heading of the e-mail makes it clear that the transferee was the
Haripersad trust. A similar e-mail
was sent on
14 January 2013. The first and second e-mails were
addressed to Valodia’s secretary and to him
personally,
although it is clear that the first e-mail was not sent to Valodia
but to an incorrect e-mail address. The date
of sale in the
documents attached to the e-mails is reflected as 20 December 2012
which is clearly a mistake as by then
no deed of sale had been
concluded with the trustees of the Haripersad Trust, and particularly
not on 20 December 2012. The
new deed of sale was only signed
in Durban on 10 January 2013 by one of the trustees of the
Haripersad Trust and on 12 January 2013
in Bloemfontein by
the trustees. Strange as it may sound, the auctioneer co-signed
this document, alleging that he conducted
the auction on which the
property was sold to the new purchaser.
8. Ms Norval’s
further e-mails of 17, 24 and 25 January 2013 seeking
payment of the transfer costs and guarantee
for the balance of the
purchase price were sent to Valodia.
9. Further letters
were sent by e-mail to Valodia on 28 and 29 January 2013.
On 29 January 2013 transfer
documents were again forwarded
to Valodia for signature.
10. On
1 February Ms Norval, probably after establishing her mistake,
sent the transfer documents to one Vishal, as stated
herein earlier,
apparently one of the Haripersad Trustees. She followed up her
e-mail with another e-mail of 4 February 2013.
11. On
12 February 2013 the Haripersad trustees were placed in
mora
pertaining to their failure to sign the transfer
documents, to provide a guarantee for the balance of the purchase
price and in
respect of the payment of transfer costs.
12. On
13 February 2013 Vishal faxed the signed transfer documents to
Ms Norval.
13. On
14 February 2013 the transfer costs were paid by the
Haripersad Trust, but on 19 February 2013 the Haripersad
trustees were informed of the trustees’ cancellation of the
deed of sale due to their breach of contract.
14. The
property was hereafter sold and transferred to a third party and
registration of transfer took place on 9 April 2013.
A few days earlier, on 4 April 2013, Valodia’s
attorney wrote a letter to Cooper Bezuidenhout insisting on transfer
of the property into his client’s name.
VI
THE KEY ISSUES
[13] Mr Terblanche submitted that the
central issue in this appeal is the applicability of the Shifren
principle and whether or
not it should be applied
in casu.
[14] The trustees submit that the
Shifren principle should not be applied slavishly and that recent
case law supports their view
that we should refuse to apply it if its
application would be contra public policy. This was not raised
pertinently in the
trustees’ answering affidavit and the court
a quo
did not consider it. It is uncertain whether this
issue was argued at all.
[15] Valodia’s version is quite
simple, i.e.:
1 he concluded a
deed of sale with the trustees,
2 he made the
required deposit, although using borrowed money,
3 he was never
placed in
mora
in respect of any alleged breach of contract,
and
4 the deed of sale
entered into with him was not validly cancelled.
The key aspect in this regard is really
whether the trustees’ insistence that the Shifren principle
should not be applied
should be adhered to. It is common cause
that they have not placed Valodia in
mora
and they have not
validly, formally and in writing, cancelled the deed of sale in
accordance with the terms of the document.
[16] A further issue is whether Valodia
could have been entitled to restitution in circumstances when he did
not pay the deposit
which he claimed back as submitted by Mr
Terblanche. Other grounds of appeal will be considered as well.
VII
EVALUATION OF THE COURT
A
QUO’S
JUDGMENT
[17] The court
a quo
concluded
that Valodia in his personal capacity entered into the deed of sale
as purchaser and that, although he indicated that
he might nominate
another party in his stead, such nomination did not take place in
accordance with the terms of the deed of sale
which required written
nomination.
[18] Clause 14 of the deed of sale is
clear. It stipulates that where a purchaser is acting as an
agent or a nominee for a
principal, the purchaser shall be entitled
by notice in writing to that effect, addressed to the seller or
auctioneer to nominate
its principal in its place as purchaser and
such notice to be handed to the seller or auctioneer by no later than
close of business
on the day of acceptance of the offer by the
seller, indicating the name and address of the nominee so nominated
and which notice
shall also be accompanied by the principal’s
written acknowledgement as provided for in clause 14. In the
event of
the purchaser failing to nominate a principal, he shall be
bound to perform his obligations as purchaser in terms of the
agreement.
[19] Clause 22 of the deed of sale
contains a non-variation clause which is in line with clauses in
similar agreements to the effect
that no amendment of the agreement
or any provision or any term thereof and no extension of time, waiver
or relaxation or suspension
or consensual cancellation of any of the
provisions or terms of the agreement shall be binding, unless
recorded in a written document
signed by the relevant parties.
The court
a quo
cannot be faulted for finding that the first
deed of sale was never validly cancelled in accordance with the
provisions of clause
22.
[20] Clause 15 of the deed of sale is
the cancellation clause dealing with breach of contract and the right
of the seller in the
event of the purchaser failing to comply with
the provisions of the deed of sale. It is not the trustees’
case that
they have acted in terms of this clause and the court
a
quo
correctly found that Valodia was never placed in
mora
and consequently, that no cancellation of the first deed of sale had
been effected accordingly. This is not in dispute.
[21] In my view the court
a quo
is correct in its consideration of payment of the deposit.
Nothing in the papers contradicts Valodia’s version.
It
has always been his case that he borrowed the deposit, although the
lender was not identified in the founding affidavit.
On
19 December 2012 when the deposit was made, the Haripersad
Trust was under no contractual obligation to pay any money
to the
auctioneer based on the conclusion of a deed of sale or its
nomination as purchaser in accordance with the terms of the
first
deed of sale. The deed of sale entered into with the Haripersad
trustees was concluded on 12 January 2013
only.
[22] The high water mark for the
trustees is the ignorance and/or lack of response from Valodia during
January and February, notwithstanding
the e-mails forwarded to him.
It is clear that he and/or his secretary received several e-mails
relating to the transaction
between the trustees and the Haripersad
trustees. The court
a quo
did not deal specifically with
this issue, but in my view it would not make any difference. It
is not necessary to speculate,
but it is possible that Valodia might
have been prepared to play a waiting game in the hope that he might
find his purchaser to
conclude a back-to-back transaction. He
already indicated this to be his intention at an early stage.
[23] The court
a quo
can
therefore not be blamed for finding that the trustees failed to
cancel the deed of sale with Valodia and that their subsequent
actions are indicative of a repudiation of this deed of sale which
was accepted by Valodia and therefore, as the court
a quo
correctly found, Valodia was entitled to restitution.
[24] The remaining
question is whether the court could have granted an order directing
the trustees to pay the full deposit to Valodia,
notwithstanding the
fact that the auctioneer kept an amount for his fees and expenses and
paid over the amount of R1 778 990.37
only. As
mentioned, Valodia believed at a stage that it would be necessary to
join the auctioneer in the proceedings which
he failed to do.
We were not presented with any authority
showing that the court
a quo
was
incorrect in this regard. Representation is a phenomenon
whereby one person concludes a juristic act on behalf of another
whereby legal relationships are created, altered or extinguished.
The representative does not act for himself, but for his
principal.
If a contract is concluded by the representative the rights and
obligations inure to the principal and not to
him. See:
LAWSA
vol 1, 3 ed, para [126] and authorities quoted.
[25] The auctioneer was the duly
appointed agent of the trustees who not only arranged the auction,
but accepted Valodia’s
offer. The deed of sale was
eventually concluded directly between Valodia and the trustees.
The auctioneer did not
act as representative of the trustees at that
stage. On the basis that Valodia is entitled to restitution,
there is no reason
why the trustees should not be held responsible
for payment of the full deposit notwithstanding clause 5 of the deed
of sale.
This clause confirms the seller’s obligation to
pay commission to the auctioneer which was agreed to be earned when
the offer
is accepted, together with other agreed costs. It was
not necessary to join the auctioneer even though he signed the deed
of sale as well, stipulating that he was accepting all benefits
conferred upon him. The general principles pertaining
to
the law of agency referred to
supra,
in so far as these may
find application in respect of the auction and acceptance of
Valodia’s telephonic offer, shall prevail.
[26] The court
a quo
did not deal
with the arguments raised by the trustees before us pertaining to the
Shifren principle and aspects relating thereto.
I do not know
whether these aspects were raised at all in the court below.
These will be dealt with under the next heading.
VIII
THE SHIFREN PRINCIPLE AND RELATED
ASPECTS
[27] It was argued on behalf of the
trustees that although the Shifren principle was previously applied
slavishly, it is no longer
the case and that courts nowadays refuse
to apply the principle where its application would be contrary to
public policy.
We were then referred to the so-called modern
application in relation to the Shifren principle and several
authorities in this
regard. The judgment of the full bench in
Nyandeni Local Municipality v Hlazo
2010 (4) SA 261
(ECM) in particular was discussed. In that case a municipal
manager was dismissed after a disciplinary enquiry. Thereafter
it was contended on his behalf that the dispute should have been
resolved through pre-dismissal arbitration, that the employment
agreement between the parties contained a non-variation clause, no
amendment was effected and consequently the disciplinary enquiry
was
held in breach of the employment agreement. It was accepted
that the municipal manager through his conduct consented
to variation
of the employment contract and he also fully participated in the
disciplinary proceedings, but the full bench decided
that the facts
and circumstances of the case justified a departure from the Shifren
principle, finding at para [108] that the municipal
manager
“
invokes
the Shifren principle not for the legitimate purpose of vindicating
his rights, but for the ulterior purpose of delaying
his dismissal,
to his financial (and other) benefit, and to the financial detriment
of the municipality he serves.”
The municipal
manager never challenged the substantive fairness of his dismissal,
but belatedly relied on a procedural irregularity.
It was
eventually found that public policy dictated that a departure from
the Shifren principle was justified. This judgment
and the
other judgments referred to are clearly distinguishable on the facts
and I do not consider that this court is bound to
follow any of the
judgments and/or the reasoning contained therein.
[28] In the best traditions of the Bar
Mr Terblanche referred us to
Spring Forest Trading
v Wilberry
(725/13)
[2014] ZASCA 178
(21 November 2014),
a judgment of the Supreme Court of Appeal which was delivered a mere
three days prior to the hearing of
this matter, confirming the
Shifren principle once again. On the face of it the judgment,
as conceded by Mr Terblanche, did
away with a relaxation of the
Shifren principle although the SCA did not refer to any of the
judgments relied upon by the trustees
that support their contentions
that relaxation is possible. The SCA reiterated the
applicability of the Shifren principle,
inter alia
with
reference to
Brisley v Drotsky
2002 (4) SA 1
(SCA) and
RH Christie and GB Bradfield,
Christie’s The Law of
Contract in South Africa
, 6th ed at 464 - 466 in the
following words:
“
[13]
Before I consider these it is necessary to remind ourselves that when
parties impose restrictions on their own power to vary
or cancel a
contract - as they did in this case -
they
do so to achieve certainty and avoid later disputes
.
The obligation to reduce the cancellation agreement into writing and
have it signed was aimed at preventing disputes regarding
the terms
of the cancellation and the identity of the parties authorised to
effect it.
Our courts have
confirmed the efficacy of such clauses
.”
(emphasis added.)
[29] In
SH v GF and Others
2013 (6) SA 621
(SCA) the Supreme Court of Appeal stated as follows
at para [16]:
“
[16]
In any event the view of Kollapen AJ that in the light of the oral
agreement of variation of the maintenance order it would
offend
against public policy to enforce the non-variation clause, cannot be
endorsed. This court has for decades confirmed
that the
validity of a non-variation clause such as the one in question is
itself based on considerations of public policy, and
this is now
rooted in the Constitution…….Despite the disavowal by
the learned judge, the policy considerations relied
upon are
precisely those that were weighed up in Shifren. In Media 24
Ltd and Others v SA Taxi Securitisation (Pty) Ltd (Avusa
Media Ltd
and Others as amici curiae)
2011 (5) SA 329
(SCA) para 35 Brand JA
said: ‘As explained in Brisley v Drotsky
2002 (4) SA 1
(SCA)
(para 8), when this court has taken a policy decision, we cannot
change it just because we would have decided the matter
differently.
We must live with that policy decision, bearing in mind that
litigants and legal practitioners have arranged
their affairs in
accordance with that decision. Unless we are therefore
satisfied that there are good reasons for change,
we should confirm
the status quo.’ ”
[30] In
Brisley v Drotsky
2002 (4) SA 1
(SCA) the Supreme Court of Appeal found that the
principles of
bona fides
, namely that the entrenchment clause
ought not to be enforced because it would in the circumstances be
unreasonable, unfair and
in conflict with the principles of bona
fides, could not be successfully invoked. See paragraphs [11]
to [34]. Regarding
good faith relied upon by the lessee in
order to avoid the consequences of the non-variation clause, the
court opined as follows
in para [24]:
“
Om
eensklaps aan Regters ‘n diskresie te verleen om kontraktuele
beginsels te verontagsaam wanneer hulle dit as onredelik
of onbillik
beskou is in stryd met hierdie werkswyse. Die gevolg sal immers
wees dat die beginsel van pacta sunt servanda
grotendeels
verontagsaam sal word omdat die afdwingbaarheid van kontraktuele
bepalings sal afhang van wat ‘n bepaalde Regter
in die
omstandighede as redelik en billik beskou. Die maatstaf is dan
nie meer die reg nie maar die Regter.”
[31] It is also important to remember
that the non-variation clause in contracts as in
casu
also,
serves to protect the interest of all the contracting parties
thereto. Unlike as indicated or as submitted by Mr Fisher
in argument, I am not satisfied that the reference to waiver and the
estoppel in clause 22 of the deed of sale are inserted for
the
benefit of the purchaser. Clause 22.3 specifically stipulates
that no extension of time or waiver or relaxation of any
other
provisions or terms of the agreement will operate as an estoppel
against the seller and/or auctioneer, nor shall it operate
to
preclude the seller and/or auctioneer thereafter from exercising any
rights strictly in accordance with the agreement.
[32] Mr Terblanche’s main
argument which runs like a golden thread through his submissions, is
that Valodia should not be
allowed the advantages of the
non-variation clause as he walked away from the first deed of sale,
he acquiesced in the conclusion
of the second deed of sale which
side-lined him and that he effectively waived all rights which he had
accrued. Although
acknowledging the non-variation clause, he
submitted that it should be applied conservatively and strictly.
If this is done
there is sufficient room for a finding, according to
him, that Valodia distanced himself from the transaction to such an
extent
that he abandoned and/or repudiated the first deed of sale.
Such action is not covered by the provisions of clause 22.2 of
the
deed of sale according to the argument. In my view the
trustees should not be allowed to rely on repudiation, abandonment,
acquiescence and/or a stepping or walking away from the first deed of
sale by Valodia. They knew very well that a valid and
binding
first deed of sale was entered into, that no written nomination of a
purchaser was effected in accordance with the terms
of the deed of
sale, that Valodia was not placed in
mora
and that they have
not cancelled the first deed of sale consequent upon his breach of
contract, or in writing accepted the so-called
repudiation and there
was also no consensual cancellation of the first deed of sale.
The trustees and/or their attorneys
were remiss in concluding a
second deed of sale with the Haripersad Trust without ensuring that
the first deed of sale was properly
and validly cancelled. The
trustees had all the contractual protection in the world at their
disposal which they failed to
apply, but now deem it appropriate to
blame Valodia for the consequences. The kind of uncertainty is
exactly that which the
parties intended to prevent in agreeing to the
inclusion of the non-variation clause. Even if there is no
doubt that the
parties orally agreed to a consensual cancellation,
but one of them decided later to renege on the verbal agreement, the
other
could not enforce that agreement as the written deed of sale
was still
in esse.
IX
FINAL EVALUATION OF THE
EVIDENCE
[33] The trustees blame the court
a
quo
for not dismissing the application based on the factual
disputes, alternatively for not
mero motu
referring it to
trial or oral evidence so that Valodia could be subjected to
cross-examination. I am in agreement with Mr
Fischer’s
argument that the material facts are clear and undisputed and that
the trustees raised immaterial issues which
did not need to be
adjudicated.
[34] Mr Terblanche’s contention
that Ms Norval’s evidence is “deadly” for Valodia’s
case is based
on wrong facts. Her version is in conflict with
the objective facts. If she was instructed on 21 December 2012
to transfer
the property to the Haripersad trustees, the transfer
documents would be prepared to give effect thereto. However it
is clear
that the documents e-mailed on the 21
st
indicate
Valodia as the purchaser. She, or her direct supervisor and
conveyancer at least, should have recognised that transfer
of
property cannot pass to a third party without there being a proper
nexus
established.
In casu
no written nomination
was obtained.
[35] Mr Terblanche relied strongly on
payment of the deposit in order to show that Valodia was untruthful
and his evidence had to
be rejected. On 20 December 2012 the
Haripersad Trust was not contractually bound to the trustees to pay
the deposit, but
Valodia was. His version that he borrowed the
money from this trust who paid it over on his behalf is uncontested
and must
be accepted as correct. Clearly, one Vishal of the
Haripersad Trust intervened hereafter and arranged with the trustees
to
prepare a new deed of sale and amended transfer documents to
reflect the Haripersad trustees as the new purchasers and
transferees.
The trustees did this at their own peril, well
knowing that a valid deed of sale existed at the time.
[36] I agree with the court
a quo
that it is not possible to make a finding that Valodia and the
Haripersad trustees are in cahoots and that they have in fact devised
a scheme in terms whereof the deposit could be claimed back, albeit
by making use of improper means. The trustees do not
rely on
evidence in this regard and merely insist that the established facts
point to such a conclusion. Valodia’s
evidence is not all
together satisfactory and I would have expected him to explain why he
did not respond to the e-mails addressed
to him which were apparently
meant for the trustees of the Haripersad Trust. I also would
have expected him to query the
drafting of amended transfer
documents, thereby effectively sidelining him. On the other
hand I scrutinised the e-mails and
attachments thereto from a trained
legal person’s perspective. Whilst Valodia might have ignored
the documents, it cannot
be found on the papers that he intended to
defraud the trustees and/or acted in cahoots with the Haripersad
trustees. His
version that he borrowed the money from the
Haripersad Trust to enable him to pay the deposit and that he would
remain liable towards
his lender cannot be rejected on the papers.
The fact of the matter is that the first deed of sale was never
cancelled by
the trustees and the court
a quo
came to the
correct conclusion by finding that the conclusion of the second deed
of sale constituted a repudiation of the first
deed of sale which
repudiation was accepted by Valodia, entitling him to restitution.
[37] The application of the Shifren
principle is not against public policy. As again repeated by
the SCA in
Spring Forest Trading
supra
the
purpose of the parties in relying on a non-variation clause is to
achieve certainty and avoid later disputes. The present
dispute
is precisely one such dispute that the parties preferred to avoid.
The trustees, trained lawyers as they are, should
have known better
than concluding a second deed of sale in
casu
without ensuring
that the first deed of sale was properly and validly cancelled.
They should not be heard to cry foul in
the circumstances and they
have only themselves to blame. There is no merit in the
argument that the Shifren principle should
not be applied
in casu.
X
ORDER
[38] Consequently the following order is
issued:
1. The appeal is
dismissed with costs.
_________________
J. P. DAFFUE, J
I concur.
________________
A.
F. JORDAAN J
I concur.
_____________
S. NAIDOO J
On behalf of the appellants: Adv. F.H.
Terblanche SC, assisted by
Adv J.W. Steyn
Instructed
by:
Christo
Dippenaar Attorneys
BLOEMFONTEIN
On behalf of the respondent: Adv. P.U.
Fischer SC
Instructed
by: Lovius Block Attorneys
BLOEMFONTEIN