About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 275
|
|
Yonda Investments CC v Rohr and Another (A716/2012) [2014] ZAGPPHC 275 (23 May 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A716/2012
DATE:
23/5/2014
IN THE MATTER
BETWEEN
YONDA INVESTMENTS
CC
.................................................
APPELLANT
(Registration
number: 2001/070192/23)
AND
FRIEDRICH
ROHR
.....................................................
1ST
RESPONDENT
ANNA ELIZABETH
ROHR
.......................................
2ND
RESPONDENT
JUDGMENT
MAKGOBA, J
[1] This is an
appeal against the whole of the judgment and order of a single judge
(Baqwa J), which judgment was delivered on 25
June 2012, dismissing
the appellant's claim with costs.
[2] The appellant
(plaintiff a quo) instituted action against the first and second
respondents wherein it claimed specific performance
in terms of a
Deed of Sale concluded between the appellant and the first respondent
dated 25 June 2006. The property that was
sold in terms of the Deed
of Sale was known as Residential Unit number 11 in the sectional
title scheme known as Wild Fig ("the
property"). The
purchase price amounted to R475 000,00 of which the purchasers were
to pay a deposit of R5 000,00.
After summons was
issued the appellant accepted the respondent's repudiation of the
Deed of Sale and sold the property to a third
party for an amount of
R425 000,00. The appellant then amended its cause of action to claim
payment of R45 000,00 in damages calculated
as the lesser purchase
price obtained for the property, R39 900,00 in damages calculated as
occupational rent for the months of
December 2008 to November 2009
and R4 258,80 in damages calculated as levies for the months December
2008 to November 2009. The
total claim is therefore one for payment
of an amount of R89 158,80.
[3] The court a quo
in dismissing the appellant's claim found that the appellant failed
to prove that a binding and enforceable
agreement was entered into
and also failed to prove the quantum of the alleged damages.
[4] The parties to
this appeal are ad idem that for the appellant to succeed in the
appeal and for the judgment of the trial court
to be reversed, all of
the following aspects need determination in favour of the appellant:
4.1 Could the
appellant sell the immovable property at the time the Deed of Sale
was entered into on 25 June 2006?
4.2 Did the
appellant prove that Ms Tania Erasmus who signed the purported Deed
of Sale on behalf of appellant as seller, did have
written authority
to sell the immovable property at the time the Deed of Sale was
signed on 25 June 2006?
4.3 Was the
purported Deed of Sale signed on 25 June 2006 invalid by virtue of
the provisions of
section 15(1)
and (2) of the
Matrimonial Property
Act 88 of 1984
?
4.4 Did the
appellant prove the quantum of its damages?
[5] The following
facts are common cause or have not been disputed at the trial:
(a) On 25 June 2006
the appellant, a close corporation and represented by its employee,
one Tania Erasmus, entered into a written
agreement of sale of the
property with the first respondent for the sum of R475 000,00.
(b) At the time of
signing the Deed of Sale on 25 June 2006 the appellant was not yet
the registered owner of the land or the property
to be sold. The
appellant became the registered owner of the property on 25 July
2006.
(c) Ms Tania Erasmus
who signed the Deed of Sale on behalf of the appellant did not have
and could not produce any written authority
by the appellant to sell
the property on its behalf or sign the Deed of Sale on its behalf.
(d) The first
respondent was married in community of property to the second
respondent. At the time of signing the Deed of Sale
on 25 June 2006
the first respondent did not have the consent of the second
respondent to purchase the property. The second respondent
also did
not sign the Deed of Sale.
(e) Tania Erasmus
was a friend of the respondents and knew for the last four years that
the parties were married in community of
property.
[6] I proceed to
deal, ad seriatim, with the issues raised in the determination of
this appeal.
Could the appellant
sell the immovable property at the time the Deed of Sale was entered
into on 25 June 2006?
[7] The appellant
contends that there was a valid contract of sale despite the
appellant not being the owner of the property. In
this regard
counsel for the appellant relied on Wessels: The Law of Contract in
South Africa, par 3400 at page 977:
"According to
our law, a person can sell the property of another, whether it be
land or movables, and if the vendor fails to
carry out his contract,
he is liable in damages as if the property which he offered to sell
were his own."
[8] On the other
hand the respondents contend that there is no valid agreement of
sale. Reference was made to the case of Kleynhans
Bros v Wessels
Trustee
1927 AD 271
at 290 where the following was said:
"No doubt one
person may sell the property of another but, as the contract of sale
is a contractus bona fide, the seller warrants
the absence of dolus
in every case. And where a person knowingly sells the property of
another as his own without the owner's
consent, he commits a fraud
upon the buyer and cannot found on his own fraudulent conduct."
In this case fraud
is defined in a narrower sense as "a false statement made with
knowledge of its falsehood for the purpose
of inducing the other
party to enter into a contract". It gives as one of the
examples of fraud the case of a seller holding
himself out as the
owner of the property when it is not his. In casu the appellant no
doubt knew that it was not yet the owner
of the property but
purported to sell the property to the first respondent.
[9] In the case of
Peter Flaman & Co v Kokstad Municipality
1919 AD 427
at 434
Solomon ACJ said:
"By civil law a
contract is void if at the time of its inception its performance is
impossible: impossibilium nulla obligatio.
So also where a contract
has become impossible of performance after it had been entered into
the general rule was that the position
is then the same as if it had
been impossible from the beginning."
In casu the
appellant only became the owner of the property upon registration of
Deed of Transfer no T91415/2006 on 25 July 2006
a month after the
Deed of Sale was entered into on 25 June 2006. It is trite that
ownership of land may only be transferred from
one owner to another
by a deed of transfer executed and attested by the Registrar of
Deeds.
[10] No evidence was
produced at the trial to the effect that the erstwhile owner of the
immovable property gave authority to the
appellant or Ms Tania
Erasmus to proceed with the sale of a part of the immovable property
prior to the transfer or ownership thereof
to the appellant on 25
July 2006.
The learned judge a
quo therefore correctly found that prior to 25 July 2006 the
plaintiff close corporation could simply not sell
the property
referred to in the Deed of Sale as it was not the owner thereof. Any
attempted representation that the appellant
was the owner of the
property was simply incorrect and consisted of a misrepresentation as
shown in the case of Kleynhans Bros,
supra.
Did the appellant
prove that Ms Tania Erasmus who signed the purported Deed of Sale on
behalf of the appellant as seller, did have
written authority to sell
the immovable property at the time the Deed of Sale was signed on 25
June 2006?
[11]
Section 2
of
the
Alienation of Land Act 68 of 1981
provides that no alienation of
land (including a unit in a sectional title scheme) shall be of any
force and effect if not contained
in a written deed of alienation
signed by the parties thereto or by their agents acting on their
written authority.
In casu the Deed of
Sale was clearly not signed by the appellant's sole member and only
authorised representative to sign a contract
of sale of land on
behalf of the close corporation, Mr Den Dunnen. It is common cause
that the Deed of Sale was signed by Ms Tania
Erasmus on behalf of the
appellant.
[12] A member of a
close corporation need not have written authority to enter into a
contract for the sale of land. But when a
member authorises a third
person to enter into a contract for the sale of land, the
authorisation must be in writing. See: Northview
Shopping Centre
(Pty) Ltd v Revelas Properties Johannesburg CC and another
2010 3 SA
630
(SCA) par [25] at 640E.
[13] It is common
cause that Ms Tania Erasmus is not a member of the appellant.
Therefore she required express written authority
of the appellant to
sign the Deed of Sale. On the facts of this case she did not have
such express written authority. The appellant
contends that the
written authority need not appear from a separate document but can be
read or gleaned from the written agreement
itself. In the written
agreement in casu the name of Tania Erasmus was added by herself in
handwritten form in the blank space
purporting to show that she was
duly authorised.
[14] In my view such
purported authorisation cannot be sufficient to constitute a written
authority emanating from a principal.
The reason being that the
objective of the requirement of written authority is to minimise risk
of subsequent disputes concerning
the authority of the agent who
signed having the extra degree of certainty which a written document
affords. If the parties to
the agreement did not themselves sign the
agreement, there should be no doubt as to the authority of the agent
who signed on their
behalf.
[15] The requirement
of the phrase in the
Alienation of Land Act "their
written
authority" is that the grant of the authority must be in writing
and the writing must be authenticated as that of
the authorising
principal, even when concise phrases like the contents of a telegram
or even an sms is used because the identity
of the sender is
determinable. See: Hugo v Gross
1989 1 SA 154
(C).
[16] Counsel for the
appellant put much reliance on the case of Van der Merwe v DSSM
Boerdery Bk
1991 2 SA 320
(T) to drive home the point that the
written authority need not be contained in a separate document but
can be gleaned from the
Deed of Sale itself. In this case an estate
agent who was present when the contract of sale of a farm was signed
filled in the
particulars of the parties on the printed offer to
purchase. Above the words "the seller" the estate agent
had filled
in the applicant's (Van der Merwe's) name followed by the
words "acting on behalf of T K van der Merwe (applicant's wife)
in the sale of the undermentioned property". The applicant's
wife was present. The question that arose was whether the inclusion
of these words in the Deed of Sale constituted written authority for
purposes of
section 2(1)
of the
Alienation of Land Act. The
court
(Schabort J) was of the opinion that the evidence showed that the
abovementioned words were intended to be the seller's authorisation
to her husband and that, although it was an unconventional place and
manner in which the estate agent had documented such written
authority, the courts had to bear in mind that formalism and
comprehensiveness were often to be sacrificed in the heat of business
transactions. The court accordingly held that the authorisation
complied with the formal requirements of
section 2
of the Act and
that the contract was valid.
[17] With respect,
the judgment in the abovementioned case cannot be sound. It is a
judgment of a single judge and we, sitting
as a Full Bench, are not
necessarily bound by such judgment more so when we are of the view
that the judgment is clearly wrong.
The judgment does not take into
consideration the fact that the statute specifically requires
"written" authority and
clearly states this as a
requirement. The court compromised the strict requirement of the Act
on the ground that "formalism
and comprehensiveness were often
sacrificed in the heat of business transactions". This is
clearly wrong.
[18] In any event
the facts of this judgment are clearly distinguishable for the
following reasons:
18.1 The applicant
in the case (Van der Merwe) and his wife who provided him with
authorisation were both present when the agreement
was signed;
18.2 The applicant's
wife was present sitting next to the applicant when he, the
applicant, explained verbally in the presence of
his wife that she
gave him authorisation and she did not interrupt to deny this
statement;
18.3 The action of
the applicant's wife of not disputing the explanation by the
applicant that he was authorised by his wife clearly
left the
impression that she confirms the authority.
[19] In casu there
exists no evidence whatsoever that the appellant's sole member, Mr
Den Dunnen, provided any authority, let alone
in writing, to Ms Tania
Erasmus to act on behalf of the appellant in the sale of the
property. The evidence of Tania Erasmus confirms
that she did not
receive any instruction in this regard.
[20] In the absence
of written authority given by the appellant's sole member, Mr Den
Dunnen, which is common cause, the Deed of
Sale signed by the third
party, Ms Erasmus, is thus invalid. The court a quo's finding in
this regard cannot be faulted.
Was the purported
Deed of Sale signed on 25 June 2006 invalid by virtue of the
provisions of
section 15(1)
and (2) of the
Matrimonial Property Act
88 of 1984
?
[21] The relevant
provisions of
section 15
of the
Matrimonial Property Act read
as
follows:
"(1) Subject to
the provisions of subsections (2), (3) and (7) a spouse in a marriage
in community of property may perform
any juristic act with regard to
the joint estate without the consent of the other spouse.
(2) Such spouse
shall not without the written consent of the other spouse –
(a) ...
(b) ...
(c) ...
(d) ...
(e) ...
(f) ...
(g) as a purchaser
enter into a contract as defined in the Alienation of Land Act, 1981
(Act 68 of 1981), and to which the provisions
of that Act apply;
(h) bind himself as
surety.
(3) ...
(4) ...
(5) ...
(6) The provisions
of paragraphs (b), (c), (f), (g) and (h) do not apply where an act
contemplated in those paragraphs is performed
by a spouse in the
ordinary course of his profession, trade or business.
(7) ...
(8) ...
(9) When a spouse
enters into a transaction with a person contrary to the provisions of
subsection (2) or (3) of this section, or
an order under section
16(2), and –
(a) that person does
not know and cannot reasonably know that the transaction is being
entered into contrary to those provisions
or that order, it is deemed
that the transaction concerned has been entered into with the consent
required in terms of the said
subsection (2) or (3), or while the
power concerned of the spouse has not been suspended, as the case may
be."
[22] It is common
cause that the first respondent and second respondent were married in
community of property, a fact which Ms Tania
Erasmus as a friend was
aware of. On the evidence before the court a quo the first
respondent did not obtain the consent of the
second respondent when
he signed the Deed of Sale. The appellant specifically stated in its
amended particulars of claim that
the second respondent consented in
writing to the conclusion of the agreement. This is incorrect in the
light of the evidence
on record.
[23] Furthermore the
appellant specifically stated in the alternative in its amended
particulars of claim that in the event that
it is found that the
second respondent did not consent in writing to the conclusion of the
agreement (as is common cause) at the
time of the signature of the
agreement, the appellant did not know and could not reasonably have
known that the agreement was being
entered into by the first
respondent without the written consent of the second respondent –
section 15(9)(a)
of the
Matrimonial Property Act. This
averment is
denied by the respondents in their plea and the appellant was put to
the proof thereof.
[24] It is clear
from the evidence produced at the trial that the appellant's
employee, Ms Tania Erasmus, in completing the Deed
of Sale was well
aware that the respondents were married and had been aware of this
fact for about four years by 25 June 2006 as
a result of the existing
friendship. It was incumbent upon Ms Erasmus to have made an inquiry
as to the marital regime of the
respondents especially when it
relates to the contract of the purchase of immovable property. In
Visser v Hull and Others
2010 1 SA 521
(WCC) it was held that a third
party was required to take steps to establish whether the contracting
spouse had obtained the consent
of the non contracting spouse. See
also Bopape and another v Moloto
2000 1 SA 383
(T);
[1999] 4 All SA
277.
[25] The appellant
contends further that the written permission of the second respondent
was not required as contemplated in section
15(2) of the Act in that
when concluding the Deed of Sale the first respondent did so in the
ordinary course of his profession,
trade or business - section 15(6)
of the Act. In this regard appellant's counsel referred to the case
of Strydom v Engen Petroleum
Ltd
2013 2 SA 187
(SCA) par [13].
[26] The appellant's
contention or argument is misplaced. It is clear from the evidence
on record that the first respondent is
a salaried employee of the
National Parks Board. He wanted to acquire the property for
residential purposes upon his retirement.
It cannot be said that the
property would have been acquired in the ordinary course of his
profession, trade or business.
[27] The court a quo
correctly found that the purported Deed of Sale signed on 25 June
2006 was invalid by virtue of the provisions
of
section 15(1)
and (2)
of the
Matrimonial Property Act 88 of 1984
.
[28] Having decided
and/or answered the first three questions in this appeal against the
appellant, I do not deem it necessary to
decide or answer the fourth
and last question relating to proof of the quantum of damages. Once
it has been found that the Deed
of Sale is invalid and unenforceable
the question of damages does not arise.
[29] The appeal is
accordingly dismissed with costs.
E M MAKGOBA
JUDGE OF THE
GAUTENG DIVISION, PRETORIA
A716-2012
I agree
W HUGHES
JUDGE OF THE
GAUTENG DIVISION, PRETORIA
I agree
S STRAUSS
ACTING JUDGE OF
THE GAUTENG DIVISION, PRETORIA
HEARD ON: 14 MAY
2014
DELIVERED ON:
MAY 2014
FOR THE
APPELLANT: ADV B C STOOP
INSTRUCTED BY:
STEYN & CLARKE ATTORNEYS
c/o ROSS &
JACOBS INC
FOR THE
RESPONDENTS: ADV J C KLOPPER
INSTRUCTED BY: P
J LOURENS ATTORNEYS
c/o D B M
ATTORNEYS