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[2013] ZAFSHC 197
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Cornelissen v Norris and Others (2569/2013) [2013] ZAFSHC 197 (21 November 2013)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION
SOUTH AFRCIA
Case No: 2569/2013
In the matter between:
MURIEL
CORNELISSEN
............................................................
Applicant
and
NATASHA COLLEEN NORRIS
....................................
First
Respondent
SHA-IESTAH HAYMAN
............................................
Second
Respondent
EG COOPER MAJIEDT
INGELYF
..............................
Third
Respondent
THE MASTER OF THE HIGH
COURT,
BLOEMFONTEIN
......................................................
Fourth
Respondent
THE REGISTRAR OF
DEEDS, BLOEMFONTEIN
......
Fifth
Respondent
ABSA BANK BEPERK
...............................................
Sixth
Respondent
JUDGMENT BY: SESELE,
AJ
HEARD ON: 17 OCTOBER
2013
DELIVERED ON: 21
NOVEMBER 2013
[1] This is an
application to compel the first respondent to pass transfer of the
property known as Erf 849 Ashbury, district Bloemfontein,
Free State
Province (“the property”) to the applicant,
alternatively, for an order authorising the sheriff of this
court to
take such steps on the first respondent’s behalf to transfer
the property to the applicant.
[2] The applicant also
launched applications for condonation for the late filing of the
replying affidavit and non-compliance with
the court order. These
applications are dealt with later in the judgment.
[3] The property
initially belonged to the applicant and her late husband. The
property was transferred to the applicant during
1988.
[4] The applicant
experienced financial difficulties and during 2000 the property was
transferred to the applicant’s son,
who is now deceased. The
applicant’s son and the first respondent were married in
community of property on 7 August 2004.
[5] A mortgage bond
number B190/2000 for R80 000,00 was registered against the property
in favour of the sixth respondent during
2000.
[6] During 2005 a second
mortgage bond number B19280/2005 was registered against the property
in favour of the sixth respondent
for R65 000,00.
[7] The first respondent
and her former husband divorced on 19 October 2006. The deed of
settlement of the divorce matter did not
regulate the division of the
joint estate and the first respondent therefore remained the owner of
the undivided half share in
the property.
[8] During December 2011
the first respondent brought an application against her former
husband under case number 5478/2011 to compel
the former husband to
take transfer of the undivided half share in the property and/or
cause the endorsement to be registered to
the effectthat the former
husband would be the sole owner of the property and that the first
respondent would be released from
liability to the sixth respondent
in respect of the first and the second mortgage bonds.
[9] On 21 January 2012,
while the above case was pending, the first respondent and her former
husband sold the property to the applicant
in terms of the written
Agreement of Purchase and Sale (“the agreement”).
[10] The first respondent
and her former husband reached settlement which was made an order of
court.
[11] This application
turns on non-compliance with the terms of the said court order. The
court order under case no 5478/2011 provides
inter alia
that:
“
1.
Applikante die koopkontrak (Agreement of Purchase and Sale deur Adams
Real Estate), aangeheg tot die aansoek stukke as aanhangsel
“X”,
binne vyf (5) dae na verlening van hierdie bevel onderteken indien sy
dit nog nie onderteken het by verlening
van die bevel nie.
2. Applikante dring nie
aan op stiptelike nakoming van paragraaf 1.3 van aanhangsel “X”
nie en moet Respondent toesien
dat waarborge deur die koper binne een
(1) maand na verlening van hierdie bevel aan die oordraggewende
prokureurs (EG Cooper Majiedt
Ing. – Donovan Majiedt) verskaf
word.
3. Oordrag van die
eiendom in naam van die koper (
Muriel Cornelissen
) moet binne
drie (3) maande na verlening van hierdie bevel geskied en word
Respondent gelas om toe te sien daartoe.”
[
12]
Paragraph 1.3 of the agreement to which the court order relates
provides:
“
1.3
The PURCHASER shall provide GUARANTEES from a financial institution
on or before 01/03/2012 (DATE) to secure payment of the
said amount
(BALANCE / WHOLE) to the SELLER on registration of transfer of the
property into the name of the PURCHASER and registration
of a
mortgage bond if necessary.”
[13] As the court order
was granted on 3 May 2012,it is apparent from the terms of the court
order that the applicant had until
about 4 June 2012 to obtain the
guarantees which her son, the first respondent’s husband,
should have delivered to the transferring
attorneys.
[14] The applicant
further had until about 2 August 2012 to take transfer of the
property. The court order states that the first
respondent’s
former husband should see to it that the property is transferred to
the applicant.
[15] The court order
granted on 3 May 2012 has not been set aside and therefore remains
valid. (
Bezuidenhout v Patensie Sitrus Beherende Bpk
2001 (2) SA 224
(ECD) at 229B.) Significantly, the court order only
changed the date of the furnishing of the guarantees. In other words,
the court
order did not do away with the suspensive condition but
merely changed the deadline for furnishing of the guarantees.
[16] Since the date for
furnishing the guarantees has lapsed the court will not order
specific performance because performance has
become impossible –
Benson v S A Mutual Life Assurance Society
(1) SA 776
(A) at 783E – F, Christie,
The Law of Contract,
5
th
Edition, page 145.
[17] The effect of
non-fulfillment of a suspensive condition is that the contract
naturally lapses upon non-fulfilment of the condition.
The court
in
Kovacs Investments 724 (Pty) Ltd v Marais
2009 (6) SA
560
(SCA) which was decided in the context of a suspensive condition
which provided for cancellation of the contract upon non-fulfilment
of the suspensive condition did not find differently.
[18] The applicant’s
explanation for the delay to take transfer of the property does not
change the fact that the guarantees
were not furnished on the due
date in terms of the court order. The late filing of the replying
affidavit also has no effect on
the non-fulfilment of the suspensive
condition.
[19] The costs must
follow the result
ORDER
[20] The application is
dismissed with costs, including costs for the applications for
condonation for the late filing of the replying
affidavit and
non-compliance with the court order.
_________________
L. M. SESELE, AJ
On behalf of the
applicant: Adv. L. A. Roux
Instructed by:
Plaaitjies Attorneys
BLOEMFONTEIN
On behalf of the
respondent: Adv. N. Snellenburg
Instructed by:
Honey Attorneys
BLOEMFONTEIN
/ebeket