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[2013] ZAFSHC 143
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Valodia v Cooper Bezuidenhout Inc and Others (2387/2013) [2013] ZAFSHC 143 (29 August 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 2387/2013
In the matter between:-
HASSAN MAHOMED
VALODIA
...................................................
Applicant
and
COOPER BEZUIDENHOUT
INC
.........................................
1
st
Respondent
DONOVAN THEODORE
MAJIEDT N.O.
............................
2
nd
Respondent
BRIAN ITUMELENG
NAKEDI N.O.
....................................
3
rd
Respondent
NORMAN KLEIN N.O.
.........................................................
4
th
Respondent
JAICHAND HARIPERSAD
N.O.
.........................................
5
th
Respondent
VIDHIAWATHIE
HARIPERSAD N.O.
..................................
6
th
Respondent
THE MASTER OF THE
HIGH COURT
................................
7
th
Respondent
_______________________________________________________
HEARD ON:
15 AUGUST 2013
_______________________________________________________
JUDGMENT BY:
DE WET, AJ
_______________________________________________________
DELIVERED:
29 AUGUST 2013
_______________________________________________________
[1] The applicant brought
an urgent application on the 25
th
of June 2013 for an
order
1.1. restraining first,
second, third and fourth respondents from transferring, alienating or
otherwise disposing of the amount
of R3 393 750.00 together with any
interest that might have occurred thereon held in first respondent’s
trust account in
respect of the sale of the immovable property
described as Erf 24957 (on which the shopping centre is situated)
corner of Barkley
Road and Seochoreng Road, Galeshewe, Kimberley,
Northern Cape.
1.2. That the second,
third and fourth respondents and the applicant 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
the shopping centre is situated)
physically situated at Barkley Road
and Seochoreng Road, Galeshewe, Kimberley, Northern Cape, which has
not been cancelled by such
respondents.
1.3. That the first,
second, third and fourth respondents are directed to pay the amount
referred to in 1.1 above to the applicant.
1.4. That the first,
second, third and fourth respondents are jointly and severally liable
for the costs of the application, the
one paying the other to be
absolved.
1.5. That the order set
out in 1.1 above is prayed as an interim interdict with immediate
effect pending the finalisation of the
application.
[2] On the 25
th
June 2013 the following order was made by agreement between the
parties, (fifth and sixth respondents not having filed any notice
of
opposition and seventh respondent indicating that he abides by the
order of court.)
2.1. The application is
postponed for hearing on 15 August 2013.
2.2. Pending the outcome
of the application, the first, second, third and fourth respondents
undertake not to alienate transfer,
pay out or dispose of the amount
of R1 778 990.37 together with interest thereon.
2.3. The first, second,
third and fourth respondents file an opposing affidavit by not later
than 19 July 2013.
2.4. The applicant file a
replying affidavit, if any, on or before 2 August 2013,
2.5 Costs to stand over.
[3] On 13 August 2013 the
fifth and sixth respondents filed an answering affidavit without any
notices of opposition or any indication
that they intend applying for
condonation as a result of their late filing of the affidavits.
[4] On 14 August 2013
first, second, third and fourth respondents gave notice to fifth and
sixth respondents of a number of irregularities
to which notice the
fifth and sixth respondents replied on 15 August 2013 alleging that
the notice by first, second, third and
fourth respondents in terms of
rule 30 of the Uniform Rules of Court is only a stratagem by first,
second, third and fourth respondents
to prevent the proper
ventilation of the real issues between the parties.
[5] At the hearing of the
application on 15 August 2013 the court enquired from Mr Johnson, on
behalf of fifth and sixth respondents,
whether he intends applying
for condonation in view of the opposition to the late filing of the
fifth and sixth respondents’
opposing affidavits and he was
referred to the decision of Poswa J in
Waltloo Meat and Chicken
SA (Pty) Ltd v Silvy Luis (Pty) Ltd and Others
[2008] ZAGPHC 136
;
2008 (5) SA
461
(T).
[6] Mr Johnson then
advised the court that he is not moving for condonation and that he
will remain in court on a watching brief
only.
[7] The attempt of the
fifth and sixth respondents to place at the very late stage opposing
affidavits before court without any
condonation application were
dismissed. The fifth and sixth respondents are ordered to pay the
costs occasioned by the aforesaid
attempt on a party-and-party scale.
[8] On 25 June 2013 as
aforementioned, applicant was ordered to file his replying affidavit
on or before 2 August 2013, but filed
his replying affidavit only on
6th August 2013 necessitating a condonation application which was not
opposed by first, second,
third and fourth respondents and
condonation was granted and applicant is ordered to pay the costs
occasioned by the condonation
application on an unopposed basis.
[9] The following are
important:
9.1. The application is
presently an application for final relief and a final order can be
granted only if the facts averred in
the founding affidavit which
have been admitted by the respondents … together with the
facts alleged by the latter, justifies
such order.
See
Plascon-Evans
Paints (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A) at 634E – 635C;
National Director of Public
Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at 290D –
291B.
9.2. The legal issues
must be resolved based on common cause facts.
The following facts are
common cause between the parties:
9.2.1. Second, third and
fourth respondents “the trustees” are the duly appointed
trustees of the insolvent estate of
the Barkly Road Development
Trust.
9.2. Park Village
Auctions Central (Pty) Ltd was appointed by the trustees to conduct
and auction of the fixed property, the property
of Barkly Road
Development Trust.
9.3. The applicant
participated in the auction by means of telephonic bids and its final
bid in the sum of R22 625 000.00 was accepted
by the auctioneer.
9.4. Pursuant to the
auction the terms and conditions of the sale of the property by
public auction were forwarded to the applicant,
he duly signed same
and returned it to the auctioneer.
9.5. A duly completed and
accurate version of the aforementioned document was annexed to the
respondents’ papers and contains
the signature of not only the
applicant as purchaser, but also those of the auctioneer and the
trustees as sellers.
9.6. Pursuant to the sale
agreement being signed, payment of the deposit in the sum of R3 393
750.00 was made on 19 December 2012
directly into the account of Park
Village Auctioneers. From the telefax simile sent to the auctioneer
as proof of payment of the
deposit it was not possible to discern who
had made the deposit payment.
9.7. On the 21
st
December 2012 an email from one Vishal: West Mead Group was forwarded
to the auctioneer:
“
Hi John
please see attached documents for the shopping centre purchased at
Kimberley. I would appreciate it if all information need
for the
transfer to be forwarded to me and any further instructions will be
done by me. (The Haripersad Family Trust)
And Barry will not be included in the
further development of this transaction. The deposit was made from
the Haripersad Family Trust
and not Barry.
Regards,
Vishal”
Attached to the said
email was a copy of the Trust Deed of the Trust, the letter of
authority of the trustees of the Trust and a
copy of the identity of
the fifth and sixth respondents.
9.8. On the 10
th
January 2013 first respondent was advised by the fifth
respondent that hence forth the sale agreement was to be concluded
with the
Haripersad Family Trust (the trust) and that all
documentation had to make provision for signature by fifth respondent
on behalf
of the Trust as the Trust was now going to purchase the
property.
9.9. Mr Cooper, on behalf
of first respondent, then instructed the auctioneer to obtain a sale
agreement in terms whereof the Trust
is in fact the purchaser.
9.10. Pursuant thereto
and between 10 January 2013 and 12 February 2013 a fresh purchase
agreement, as well as relevant affidavits
were signed on behalf of
the Trust in this regard.
9.11. On the 12
th
February 2013 the first respondent, acting on behalf of
the trustees, addressed a letter to the Trust and also send a copy of
the
letter to the applicant informing them that they being the Trust
have not complied with section 2.3 of the said agreement of sale
by
not delivering a guarantee for the balance of the purchase price as
provided for in the agreement within the period mentioned
therein or
at all. The trust is further advised that they have not signed and
returned the transfer documents sent to them, which
were requested on
numerous occasions and they have also not paid the transfer costs as
provided for in paragraph 9.1 of the agreement
despite numerous
requests and they are therefore informed that unless the above
breaches are remedied within four days of date
of the notice, the
seller will cancel the agreement and retain all amounts paid by the
Trust as “rouwkoop”.
9.12. Thereafter on 14
February 2013 the transfer costs in the amount of R91 633.40 was paid
by the Trust.
9.13. On 18 February 2013
a further email was directed to the Trust only by Me Adele Norval,
secretary of the first respondent,
informing fifth respondent:
“
I have not
heard anything from you about the guarantee. It is my instructions
from the liquidators that if we do not receive the
guarantee by close
of business today, they will cancel the agreement and you will
forfeit all monies already paid, as breach of
the contract. The
property will then be put back on auction. Please let me know.
Regards,
Adele
Coopers Bezuidenhout”
9.14. Subsequently on 19
February 2013 a letter addressed to the Haripersad Family Trust by
email (a copy of which was sent to the
applicant’s email
address) informed the Trust that
“
We therefore
inform you herewith in terms of paragraph 5 of our said letter as
read with clause 15 of the said agreement of sale,
that the sellers
herewith cancel the said agreement of sale, between our clients, as
the sellers, and you the purchaser and the
sellers retain all amounts
paid by you as rouwkoop which you forfeit to our clients as provided
for by the said agreement.”
[10] It is clear that the
agreement entered into between the trustees and the applicant had
never at any stage been cancelled in
terms of the provisions of the
agreement or otherwise. The only contention of the respondents
regarding cancellation of the agreement
with the applicant, were that
the applicant had stepped away from the agreement, thereby apparently
abandoning it, according to
the respondents.
[11] The following
disputes of fact exist
inter alia
on the papers:
11.1. The applicant
alleges that he sought and obtained a loan from the Trust for the
deposit amount in the sum of R3 393 750.00
and although there was
some delay in securing the deposit, it was ultimately paid to the
auctioneer. He then attaches a copy of
the deposit slip reflecting
the transfer of the funds “from the party from whom I had
loaned such funds namely the Trust”.
He further attaches a copy
of the confirmation letter from the auctioneers.
11.2. The respondents
reiterate that as is confirmed by the auctioneer he could not see
from the proof of payment who had paid the
deposit and thought at
that stage that it was the applicant, but it only later turned out
that the deposit was paid by the Trust.
Neither the auctioneers nor
the respondents have any first-hand knowledge of how, why and by whom
the deposit was paid. The respondents
clearly rely for their believe
on the letter of 21st December 2012 (referred to above) by the
Haripersad Family Trust instructing
that the deposit was paid by the
Haripersad Family Trust and not by the applicant.
11.3. The fifth and sixth
respondents tried to file opposing affidavits as referred to above,
but their attempt were opposed by
the first, second, third and fourth
respondents and the attempt without a condonation application was
turned down by the court.
There is therefore no evidence except that
of the applicant in regard to the deposit payment.
11.4. Although the first,
second, third and fourth respondents attempt to deny that the payment
was made on behalf of the applicant
and criticises the applicant for
not giving more and fuller details regarding the loan that he alleges
he received from the Trust,
there is nothing on the papers except the
aforesaid letter gainsaying what the applicant alleges and his
version must therefore
be accepted.
12.1. The respondents
allege that during the course of the morning of 21 December 2013 and
after being advised by the auctioneer
that the deposit had been paid,
the conveyancing secretary employed by first respondent, Me Adele
Norval, contacted the applicant
who then informed her that he has
nominated the Haripersad Family Trust as the purchaser. She then
requested from the applicant
the necessary documentation relating to
the Trust to enable the first respondent to draft the necessary
documentation for the conveyancing
process and the applicant then by
way of email produced a copy of a letter of authority from the Trust,
a copy of the Trust Deed,
as well as a copy of an identity document.
Norval then prepared the necessary conveyancing documentation which
was sent by email
for the perusal and signature of the applicant, but
the duly signed documents were never received nor was the account of
the first
respondent paid and as a result Norval phoned the applicant
on 9 January 2013 to find out the whereabouts of the signed
documents.
12.2. Applicant then
informed Norval that he did not receive documents for signature. More
copies of the same documents were then
sent to the applicant for
signature, but on 10 January 2013 the fifth respondent called Norval
informing her that the purchaser
is in fact the Trust and that he is
a duly appointed trustee of the Trust. The necessary documents were
forwarded thereafter to
the fifth respondent for signature.
[13] In the replying
affidavit the applicant points out that as stated in his founding
affidavit, he was looking for an opportunity
to sell the immovable
property in what would effectively constitute a back to back
transaction. The purchaser under the second
transaction was to have
been the Trust. The applicant furthermore alleges that he learned
from the answering affidavit that the
trustee of the Trust
effectively attempted to exclude him by signing a separate purchase
and sale agreement and instructing the
respondents, alternatively the
first respondent from not having any further dealings with him.
[14] The applicant
alleges that at the end of the day he will be liable to the Trust for
the repayment of the deposit in accordance
with the loan and he
points out that the respondents cannot gainsay his contention that
the deposit was paid on his behalf. The
applicant denies the
allegation by Me Norval that he nominated the Trust as the buyer and
states that he never agreed to step away
from the transaction as
suggested by the respondents. He points out that the Trust imposed
itself as the purchaser and the respondents
agreed to this
effectively side-lining the applicant in the process. He admits to
sending the aforesaid documentation to the respondents
but alleges
that it was for the purposes of furnishing the necessary
documentation pertaining to the party to whom he would sell
the
property. He alleges that at that stage he was unaware that the fifth
respondent had instructed the respondents to have no
further dealings
with him and he was only made aware of this after receipt of the
answering affidavit.
[15] The applicant points
out that Me Norval persisted in contacting him as the purchaser of
the property, notwithstanding her allegations
of what was alleged to
have taken place on 21 December 2012.
[16] I find it stange
that after Me Norval was informed by the applicant about the
nomination of the Trust as purchaser that she
would still continue
sending him documents for signature as well as a statement of account
for payment. Clearly if he had informed
her as she alleges about the
Haripersad Family Trust being the nominated purchaser there was no
need for further communication
with the applicant.
[17] Even if Me Norval’s
version is accepted, namely that the applicant orally informed her
that the Trust was nominated by
himself as purchaser of the property,
it seems strange that neither Me Norval nor first respondent ever
requested confirmation
of that decision by the applicant in writing.
[18] Without cancelling
the agreement with applicant or receiving applicant’s written
confirmation of the nomination of the
Trust as alleged, a new
agreement was subsequently entered into between the trustees and the
Haripersad Family Trust.
[19] The relevant clauses
of the agreement read:
“
14.1. Where
the 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 a purchaser, upon the following
terms and conditions.
14.2 …
14.3. Should the purchaser fail to
nominate the principal by close of business on the date of acceptance
by the seller, then it
shall be bound to perform all his obligations
as purchaser in terms of this agreement.
15. Cancellation
15.1. Should the purchaser fail to
comply with any provisions of this agreement, and the parties
irrebutably agree that each and
every term and condition of this
agreement of sale, creating an obligation for the purchaser, is a
material term and condition,
the seller shall be entitled to give the
purchaser written notice to rectify such term and condition, and on
failure of the purchaser
to do so within the period of four days
after receipt of such written notice the seller shall, without
prejudice to any of its
other rights, be entitled to either 15.1.1
cancel the agreement in which event, the seller shall be entitled, in
the seller’s
sole discretion, either to retain all the amounts
paid by the purchaser in terms thereof as rouwkoop or …
22. Whole agreement (no amendment)
22.1. This agreement constitutes the
whole agreement between the parties relating to the subject matter
hereof.
22.2. No amendment of this agreement
or any provision or term of the agreement, or any other document
issued or executed pursuant
to or in terms of this agreement and no
settlement of any disputes arising under this agreement and no
extension of time, waiver,
relaxation of suspension or consensual
cancellation of any of the provisions or terms of this agreement or
of any agreement or
other document issued pursuant to or in terms of
this agreement shall be binding unless recorded in a written document
signed by
the relevant parties. Any such extension, waiver,
relaxation, suspension or the like which is so provided or made will
be strictly
construed as relating strictly to the matter in respect
whereof it was made or provided.
22.3. No extension of time, or waiver,
or relaxation of any of the provisions in terms of this agreement or
any agreement or other
document issued or executed pursuant to, or in
terms of this agreement, will operate as an estoppel against the
seller and/or the
auctioneer in respect of any rights under this
agreement, nor shall it operate so as to preclude the seller and/or
the auctioneer
thereafter from exercising any rights strictly in
accordance with this agreement.
22.4 …”
[20] It is clear from the
agreement that a written instruction to nominate a purchaser of the
property involved is prescribed.
See
Brisley v
Drotsky
2002 (4) SA 1
(SCA).
[21] There might have
been ample reason for the respondents to properly cancel the
agreement with the applicant, but it is also
clear that the
provisions of the aforesaid cancellation clause had to be strictly
adhered to.
See
Van Zyl v
Rossouw
1976 (1) SA 773
(NC) at 776 – 777;
De Wet
NO v Uys NO en Andere
1998 (4) SA 694
(T) at 706;
Kragga
Kamma Estates CC and Another v Flanagan
[1994] ZASCA 137
;
1995 (2) SA 367
(A)
at 374D – E.
[22] The respondents in
the absence of any written confirmation and/or authority from the
applicant in terms of the agreement, simply
decided to ignore the
first agreement and concluded a second deed of sale with the Trust on
12 January 2013 and after cancellation
of the second agreement
concluded an agreement with the third party to whom the property was
eventually transferred.
[23] It is clear from the
respondents’ papers that it never sought to invoke the
provisions of clause 15 of the sale agreement
relating to
cancellation vis-a-vis the applicant.
[24] The actions of the
respondents are clearly a repudiation of the agreement between the
sellers and the applicant, as purchaser,
and such repudiation was
accepted by the applicant, thereby cancelling the agreement between
him and second, third and fourth Respondents
(The sellers).
See
Datacolor
International (Pty) Ltd v Intamarket (Pty) Ltd
[2000] ZASCA 82
;
2001 (2) SA
284
(SCA).
[25] It follows from the
cancellation of the sale agreement between Applicant and the sellers
of the property that the applicant
is entitled to restitution of the
deposit in the amount of R3 393 750.00. It was alleged and argued on
behalf of the respondents
that the applicant is acting in cahoots
with the fifth and sixth respondents in the present matter. The
argument was considered
and although there may be a suspicion that
they are so acting, there is nothing in the papers on which the court
can rely for such
a finding.
[26] I accordingly make
the following order:
The second, third and
fourth respondents 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 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.
Second, third and
fourth respondents are directed to pay the amount of R3 393 750.00
to the applicant.
Second, third and
fourth respondents are directed to pay interest at the rate of
15,5% per annum
a tempore morae
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.
_____________
P.J.T. DE WET
On behalf of applicant:
Adv. P.U. Fischer
Instructed by:
Lovius Block Attorneys
BLOEMFONTEIN
On behalf of respondents:
Adv. Steyn
Instructed by:
Christo Dippenaar
Attorneys
BLOEMFONTEIN
/sp