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[2015] ZAFSHC 46
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Theron and Another v Evans N.O. and Another (2598/2014) [2015] ZAFSHC 46 (12 March 2015)
IN THE HIGH
COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case
No: 2598/2014
In
the matter between:
FRANK
DE VILLIERS THERON
…..............................................................................
1
st
Applicant
KARIEN
THERON
….....................................................................................................
2
nd
Applicant
and
ERNST
EVANS N.O
.
…..................................................................................................
1
st
Respondent
ANNA
JOHANNA MAGDALENA N.O.
….................................................................
2
nd
Respondent
CORAM:
LEKALE, J
et
HINXA,
AJ
JUDGMENT
BY:
HINXA, AJ
HEARD
ON:
23 FEBRUARY 2015
DELIVERED
ON:
12 MARCH 2015
[1]
This is an appeal against a decision of the magistrate, given in the
Regional Court, Bloemfontein whereby he made the following
order:
a)
Payment of an amount of R122 980.00 in
respect of claim 1;
b)
Payment of an amount of R1731.19 in respect
of claim 2;
c)
Each party to pay his or her legal costs.
The
appellants were the defendants and the respondents the plaintiffs in
the court a quo. For the sake of convenience, I will refer
to them as
appellants and respondents respectively.
[2]
The respondents issued a summons against the appellants, the two
claims being set out therein as follows:
1.
Claim 1: Payment of the amount of
R150 000.00 being the balance of the purchase price owed by the
1
st
and 2
nd
appellants to the 1
st
and 2
nd
respondents in respect of the purchase of the property situated
at Lilyvale Road, Rayton Ridge, Bloemfontein.
1.1 In terms of the
written contract of sale the relevant terms were the following:
1.1.1
The purchase price was R5 100 000.00;
1.1.2
The property was sold voetstoots;
1.1.3
The 1
st
and 2
nd
appellants confirmed that they had inspected the property and were
satisfied and there was no guarantee made by the sellers and
their
agents.
1.2
The 1
st
and the 2
nd
appellants paid only R4 950 000.00.
1.3
[3]
Claim 2: In terms of the contract annexed, the 1
st
and
2
nd
appellants were entitled to occupy the aforesaid
property with effect from 1 October 2013 at a monthly rental of
R20 000.00
per month, payable in advance. The appellants omitted
to promptly pay in advance and were liable for interests of R1731.19.
[4]
The appellants entered an appearance to defend the action whereupon
the respondents lodged and served an application for summary
judgment. That application was opposed by the appellants on the
following grounds:
a)
Latent defects in the property;
b)
The real respondent was a trust and there
was no averment that Messrs Evans and Roberts (1
st
and 2
nd
respondents) were authorised by the aforesaid trust to bring this
action.
c)
The respondents had not averred that they
had performed their part in terms of the contract.
d)
Clause 6 of the contract was a “
lex
commisaria
” and the respondents
had to give seven (7) days’ notice before taking any action.
e)
The claim was subject to the
Consumer
Protection Act, 38 of 2008
.
[5]
The court a
quo
having found no merit in all the aforementioned grounds, granted
summary judgment as prayed for, hence this appeal.
[6]
At this juncture I deem it prudent to state that the appellants, in
pursuance of this appeal, premised it only on three (3)
grounds. This
is evinced by both their Heads of Argument and oral submissions in
court. Therein, they encapsulated two grounds
from the initial ones
i.e. latent defects and non-compliance with seven (7) days’
notice. In addition, they advanced a new
ground, to wit, interest on
rent was not liquidated in so far as it was not agreed upon in the
contract.
[7]
I propose to deal with the aforestated grounds in turns with view to
establishing whether the findings of the magistrate were
sound or not
and whether the new ground bears substance or not.
[8]
I will start with the latent defects. The trial magistrate reasoned
as follows:
“
`n
Latent defek is nie enige defek nie. Vir a defek om `n voetstoots
kousule te negeer, moet die defek so ernstig wees dat die koop
item
nie gebruik kan word vir die doel waarvoor dit gekoop was nie.”
For
this dictum he placed reliance in a substantial measure on
Odendaal
v Ferraris
[2008] JOL 22304
(SCA).
I
find the magistrate’s reasoning in this regard to be manifestly
sound as it is premised on trite law.
[9]
It bears mentioning that the appellants did not rest their case here.
They further contended on appeal that the respondents
cannot rely on
the voetstoots clause because they (respondents) fraudulently avoided
bringing the latent defects to their (appellants’)
attention.
I
hasten to mention that the appellants did not see it fitting to
provide any ground in the form of facts upon which they based
their
allegation and from which the court could reasonably infer same.
Their omission as postulated above is in stark contrast
to the trite
exposition of our law. In Odendaal v. Ferraris (422/2007) [2008] 8
ZASCA paragraph 29 the court held,
“
It
is trite that if a buyer hopes to avoid the consequences of a
voetstoots sale, he must show not only that the seller knew of
the
latent defect and did not divulge it but also that he or she
deliberately concealed it with the intention to defraud (dolo
malo) …
But as this court has said, fraud will not lightly be inferred,
especially when sought to be established in motion
proceedings. And
where a party seeks to do so, the allegation sought must be clear and
the facts upon which the inference is sought
to be drawn succinctly
stated”.
I
find this dictum not only apposite but also instructive in the
situation obtaining in
casu
.
[10]
I deal next with non-compliance with the seven (7) days’ notice
(“
lex commisaria
”).
The magistrate overruled this ground in following manner,
“
Die
klousule oor 7 dae kennis gee is nie gebiedend nie. Klousule 6 in die
kontrak stel duidelik dat die applikant `
n
keuse
het om sewwe (sic) dae kennis te
gee of nie. Dit kan nie teen hom gehou word omdat hy sy
keuse
uitgeoeen (sic) het nie.” (my
underlining)
[11] 11.1 At the
onset, I hasten to find that the magistrate misdirected himself in
reading in the contract a choice (“keuse”)
that otherwise
does not exist in the aforesaid contract (hence my underlining
supra
). For the sake of clarity and emphasis, I see it apt to
hereunder reproduce the aforestated clause 6 both in Afrikaans and
English
since the contract is written in both.
11.2 The Afrikaans
version reads as follows:
“
Indien
die koper nagelaat het om enige betalings te maak wat hierin versien
word of andersiens `n voorwaarde hierna uitbreek of
nagelaat het om
sy verpligtinge teenoor SARS na te kom, wat die uitreiking van
die here regte kwitansie mag vertraag, en
in versuim bly 7 (sewe) dae
nadat `n geskrewe kennisgewing per geregistreerde pos aan hom
afgestuur is waarin van hom vereis word
om sodanige betaling te maak
of sodanige kontrakbreuk te herstel sal die Verkoper geregtig wees om
sonder benadeling van enige
erder regte wat hy regtens mag he”.
10.3 The English
translation in the contract is as follows:
“
Should
the purchaser fail to make any payments provided for herein, or
otherwise commit a breach of any conditions hereof, or fail
to comply
with any obligations to SARS which may delay the issue of a transfer
duty receipt, and remain in default for 7 (seven)
days after written
notice is given to him to make such payments or to remedy any other
breach, the Seller shall be entitled to,
and without prejudice, any
other rights available at law”.
[11]
In concluding on this topic, it bears mentioning that the contract
does not, in both languages, either expressly or implicitly,
provide
for any choice (“keuse”) for the seller. If anything, it
(seller) is expressly obliged, in both languages,
to give 7 (seven)
days’ notice to the purchaser of its intention to take any
legal action. The only difference which is not
material for the
purpose of this topic is that the Afrikaans version expressly states
that such notice must be given per registered
post, whilst the
English translation does not encapsulate such a clause. It follows
thus that this point was properly taken by
the appellants in the
trial court and should have been entertained by the magistrate.
In
the context aforesaid, the appeal deserves to be upheld on this point
alone without any further ado.
[12]
That having been said, I nevertheless see it apt to deal with the
last ground as well for the sake of completeness. This is
more so
that this ground also provides further merit for the appeal. As
alluded to
supra
, the trial court did not have opportunity to
consider whether an interest not agreed upon in the contract is a
liquid claim or
not since this contention was advanced for the first
time on appeal. This issue was settled long ago by the court in
Oll
Purpose Space Heating v Schweltzer
1970 (3) SA 560
(D) at 563
as follows,
“
A
claim for interest, if it is not agreed interest, is a claim in the
nature of a claim for damages, but a claim for agreed interest
is a
claim for a liquidated amount in money in respect of which summary
judgement may be granted”.
[13]
It admits of no doubt that the contract in this matter makes no
provision for the interest on the arrear rent which is the
second
bone of contention (claim 2) herein. I am therefore driven to a
conclusion that this ground of appeal is also meritorious
and should
be countenanced.
[14]
In the circumstances, the following order is made:
14.1
The appeal is allowed with costs.
14.2
The order of the trial Court is set aside and there is substituted an
order in the following terms:
“
Summary
judgement is refused and the appellants are granted leave to defend
the action”.
14.3
The costs of the application for summary judgment are left over for
decision by the trial court.
M.
D. HINXA, AJ
I
agree.
L.J.
LEKALE, J
On
behalf of the applicants: Adv.
Instructed
by:
BLOEMFONTEIN
On
behalf of the respondents: Adv.
Instructed
by:
BLOEMFONTEIN