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[2014] ZAFSHC 68
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Parker v Paradigm Investments 444 (Pty) Ltd and Others (2840/2013) [2014] ZAFSHC 68 (20 March 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION. BLOEMFONTEIN
Case No: 2840/2013
In the matter
between:
RICHARD
WILLIAM PARKER
…................................................................................................
Applicant
and
PARADIGM
INVESTMENTS 444 (PTY) LTD
….............................................................
First
respondent
(IN
LIQUIDATION)
(REGISTRATION NUMBER
2001/012281/2007)
ABSA
BANK LIMITED
…..............................................................................................
Second
Respondent
THE
REGISTRAR OF DEEDS, KING WILLIAMS
TOWN
….............................................................................................................................
Third
Respondent
THE
MASTER OF THE FREE STATE HIGH COURT.
BLOEMFONTEIN
….......................................................................................................
Fourth
Respondent
CORAM:
MONALEDI,
AJ
HEARD
ON:
21
NOVEMBER 2013
DELIVERED
ON:
20
MARCH 2014
MONALEDI. AJ:
[1] The Applicant
herein gave notice of his intention to make an application seeking
the following orders:
1. An order
declaring the sale of the immovable property known as and described
as Erf 602 Cintsa, Local Municipality of Great Kei,
Division of East
London, Eastern Cape Province situated at 602 Seagull Street, Cintsa
East, Eastern Cape (in extent: 973 square
metres) (hereinafter "the
property") in terms of a written deed of sale concluded between
the Applicant and the First
Respondent on or about the 13th of April
2012 in Bloemfontein in the Free State Province (hereinafter "the
deed of sale"),
null and void;
2. An order
directing the First Respondent to pay within five (5) days of
granting of this order by this honourable Court and then
specifically, from the purchase price received by the First
Respondent in terms of the deed of sale, all and any monies due and
payable by the Applicant to the Second Respondent in respect of bond
loan account number 807 645 1487/001 to a maximum amount of
R 861
052-00 in settlement in full, of the outstanding loan amount and/or
bond amount owing by the Applicant to the Second Respondent
and which
loan has been secured by way of a bond over the property;
3. An order
directing the First Respondent to pay within five (5) days of
granting of this order by this honourable Court to the
Applicant, all
and any monies in excess of the amount already paid by First
Respondent to the Second Respondent in terms of prayer
2 supra, but
then limited to an amount not greater than R 861 052-00;
4. An order
instructing the Third Respondent upon payment by the First Respondent
to Second Respondent of any and all monies due
and payable by the
Applicant to the Second Respondent in terms of bond account number
8076451487/001, to cancel the bond held in
favour of the Second
Respondent over the property and thereupon, to cancel the transfer of
ownership of the property in terms of
the deed of sale so as to
reflect the First Respondent as the registered owner and title holder
of the property;
5. An order
instructing the First Respondent to pay all and any costs in order to
enable the Third Respondent, upon payment by the
First Respondent to
Second Respondent of any and all monies due and payable by the
Applicant to the Second Respondent in terms
of bond account number
8076451487/001, to cancel the bond held in favour of the Second
Respondent over the property and thereupon,
to cancel the transfer of
ownership of the property in terms of the deed of sale so as to
reflect the First Respondent as the registered
owner and title holder
of the property;
6. Leave be granted
to the Applicant to institute action against the First Respondent in
due course for damages suffered as a result
of the void deed of sale
(as referred to in prayer 1 above) once the Applicant is in a
position to quantify his damages in full;
7. An order
directing the First Respondent to pay the costs of this application.
[2] Only the first
Respondent opposed the application.
[3] The issues
herein revolves around a property described in paragraph 1 of the
Notice of Motion and are the contentions of the
applicant that:
a) That the transfer
of the property in question in terms of an agreement of sale which is
void or voidable;
b) a completed house
was pointed out to the Applicant by a representative of the First
Respondent;
c) Applicant took
occupation of a different property to that described in the Deed of
Sale and had in fact, in terms of the written
Deed of Sale, purchased
a different property to that pointed out to him by First Respondent's
representative;
d) Applicant did not
have the intention or would have purchased the property as described
and referred to in the Deed of Sale as
it was incomplete;
e) The liquidators
of First Respondent were only appointed as provisional liquidators of
the First Respondent by the Fourth Respondent
and did not have the
authority to conclude a sale agreement.
[4] The first
respondent counters with the following arguments in relation to the
facts:
a) The First
Respondent denies that its representative introduced the applicant to
the property and avers that it was the Applicant
whom had identified
and pointed out a property to the First Respondent's representative
and thereafter indicated that he wishes
to make an offer on Erf No.
602;
b) that the
liquidators of First Respondent was appointed as provisional
liquidators on the 23
rd
of March 2012;
c) that even if the
agreement of sale is void or voidable due to the liquidators of First
Respondent's failure to comply with
section 18(3)
of the
Insolvency
Act, 24 of 1936
, then in terms of the abstract system of acquiring
ownership of immovable property in South Africa, the Applicant is
bound by the
agreement of sale.
[5] The court
considered the contentious issues herein as amplified in court with
the respective arguments from council. The foremost
disputes herein
are
a)
The question of the property and the identification thereof by the
parties which raises the possibility of mistake
(Justus
error);
b) the question of
authority to act in relation to the sale agreement.
[6]
In
National and
Overseas Distributors Corporation (Pty) Ltd
v
Potato Board
1958
(2) SA 473
it was held that:
“
Our
law allows a party to set up his own mistake in certain circumstances
in order to escape liability under a contract into which
he has
entered. But where the other party has not made any misrepresentation
and has not appreciated at the time of acceptance
that his offer was
being accepted under a misapprehension, the scope for a defence of
unilateral mistake is very narrow, if it
exists at all. At least the
mistake (error) would have to be reasonable
(Justus)
and
it would have to be pleaded.”
[7] The question to
be asked in cases such as this has been formulated as follows:
“
Did
the party whose actual intention did not conform to the common
intention expressed, lead the other party, as a reasonable man,
to
believe that his declared intention represented his actual intention?
To answer this
question, a three-fold enquiry is usually necessary, namely, firstly,
was there a misrepresentation as to one party’s
intention;
secondly, who made that misrepresentation; and thirdly, was the other
party misled thereby? The last question postulates
two possibilities:
Was he actually misled and would a reasonable man have been misled?”
See
Sonap Petroleum
(SA) (Pty) Ltd (formerly known as
Sonarep
(SA) (Pty) Ltd) v Pappadoqianis
[1992] ZASCA 56
;
1992
(3) SA 234
(A) at 239I-240B.
[8]
Both parties
alluded to the possibility of a dispute of fact arising from the
papers. From the arguments it is clear that there
is a real dispute
of fact regarding the identification of the property.
[9]
In such a case the general rule was stated in
Stellenbosch
Farmers' Winery Ltd v
Stellenvale Winery (Pty) Ltd
1957
(4) SA 234
(C) at p 235 E-G, to be:
“
...where
there is a dispute as to the facts a final interdict should only be
granted in notice of motion proceedings if the facts
as stated by the
respondents together with the admitted facts in the applicant's
affidavits justify such an order.... Where it
is clear that facts,
though not formally admitted, cannot be denied, they must be regarded
as admitted.”
[10] The aspect of a
dispute of fact has been the focus of numerous decided cases and this
court will refer to the most important
ones.
[11]
In
Wiqhtman v
Headfour (Pty) Ltd
(66/2007)
[2008] ZASCA 6
(10 March 2008) it was held that a real, genuine and
bona fide
dispute
of fact can exist only where the court is satisfied that the party
who purports to raise the dispute has in his affidavit
seriously and
unambiguously addressed the fact said to be disputed.
[12]
In dealing with disputes of fact in motion proceedings, Conradie J in
Cullen v Haupt
1988
(4) SA 39
(C) held:
“
I
have consulted some of the better known decisions concerning the
referral of applications to evidence or to trial. The leading
decision in this regard is, of course,
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T) at 1162, where Murray AJP said that if a dispute
cannot properly be determined it may either be referred to evidence
or to
trial, or it may be dismissed with costs, ‘particularly
when the applicant should have realised when launching his
application
that a serious dispute of fact was bound to develop’.”
[13]
The court considered the contents of the opposing affidavit. The
respondent’s allegations do not prima facie amount to
“bald
or uncreditworthy denials, raises fictitious disputes of fact, are
not palpably implausible, far-fetched or so clearly
untenable that
the court is justified in rejecting them merely on papers”, as
stated in
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA).
[14]
It is the view of this court, having regard to the legal principles
stated in this judgment that the disputes of fact referred
to are not
capable of determination on affidavits alone. Neither are the
disputes of fact capable of resolution by a common-sense
or robust
approach as suggested in
Soffiantini
v Mould
1956
(4)
SA
150(E).
[15]
It is the contention of the Respondent that the dispute was
foreseeable and the Applicant should not have followed the
application
procedure. For that reason it is submitted that the
application must fail. I had regard to this and the importance of the
matter
to the parties, as weil as the amount involved and the
property involved, and in the exercise of my discretion, finds it
will be
prejudicial to merely dismiss the application.
ORDER
[16] The following
order is made:
1. The application
is referred to trial;
2. The notice of
motion and the founding affidavit shall stand as simple summons and
the answering affidavit as entry of appearance
to defend;
3. The applicant
shall file his declaration within twenty (20) days of this order;
4. Thereafter the
applicable provisions of the Uniform Rules of Court are to apply;
5. The costs of the
proceedings to date are reserved.
On behalf of
applicant: Adv C. Snyman
Instructed by:
V. Graham Attorneys
14A Torbert Street Noordhoek BLOEMFONTEIN
On behalf of first
respondent: Adv Paul Zietsman SC
Instructed by:
Matsepes Inc 26/28 Aliwal Street BLOEMFONTEIN