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[2013] ZAKZPHC 64
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Kadwa N.O and Others v Standard Bank of South Africa Limited and Others (8054/2011) [2013] ZAKZPHC 64 (30 October 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, PIETERMARITZBURG
CASE
NO: 8054/2011
In the matter between:
ZUBEIR GOOLAM HOOSEN KADWA N.O.
First Applicant
LAYLA MAHOMEDY N.O. Second
Applicant
AHMED YOUSUF KADWA N.O.
Third Applicant
And
STANDARD BANK OF SOUTH AFRICA LIMITED
First Respondent
GARLICKE & BOUSFIELD ATTORNEYS
Second Respondent
REGISTRAR OF DEEDS (PIETERMARITZBURG)
Third Respondent
JUDGMENT
SISHI J
Introduction
[1] The applicants seek an
interim relief, interdicting the first and/or second respondents from
transferring certain immovable
property to any person or legal entity pending
the final determination of an action to be instituted by the applicants within
ten
(10) days of the grant of any order for transfer of the said property into
the name of the Trust of which the applicants are the
trustees.
[2] The first and second
respondents oppose the relief sought by the applicants and seek an order that
the application be
dismissed with costs.
[3] The third respondent is not
opposing the application.
[4] The property which is the
subject matter of this application is fully described as:
Remainder of portion 54
of the farm Geelhoutboom No.982, registration Division FT, Province of KwaZulu-Natal,
in extent: 17.7117
hectares (hereinafter referred to as the property).
Background
[5] The following facts are
either common cause or not in dispute:
[5.1] On 3 December 2009, the
applicants concluded a purchase and sale agreement with the first respondent.
This agreement
is annexure A to the founding affidavit. The applicants were
the purchasers and the first respondent was the seller of the immovable
property in question.
[5.2] The purchase and sale
agreement contained a suspensive clause in clause 12 thereof.
[5.3] The suspensive clause of the
agreement was that the applicants would pay a deposit of R90 000,00 and
raise a guarantee
in the sum of R810 000,00 within 14 days of signature of
the agreement.
[5.4] The applicants did not
comply with the suspensive condition of the agreement within the time frame
referred to in clause
12 thereof.
[5.5] There was no provision made
for the extension of the 14 day period to fulfil the suspensive condition when
the agreement
was still extant.
[5.6] On 25 January 2010, Albaraka
Bank sent a letter to the first respondent informing them that there was
sufficient funds
in an account held with it by the first applicant, in the sum
of R900 000,00 and that the account was still open as at the
said date.
[5.7] On 29 January 2010, the
first respondent wrote to the second respondent and instructed them to proceed
urgently with the
transfer of the property in terms of the agreement. First
respondent further enclosed the signed agreement and bond grant.
Issue for determination
[6] The issue to be determined
in this matter is whether the Agreement of sale marked annexure A in the
applicants founding
affidavit is extant or whether it is void
ab initio
with effect from fourteen (14) days of signature of the agreement, i.e. e
December 2009.
The Merits
[7] It was submitted on behalf
of the applicants that as at 29 January 2010, the first respondent did not rely
on the suspensive
condition as contained in clause 12 of the agreement, as it
allowed for the late serving of the banks letter of confirmation of
availability
of funds. Although, technically the letter was not a bank guarantee, the first
respondent accepted that the letter
was sufficient in order to proceed with the
sale and transfer of property.
[8] The second respondent
proceeded with the transfer of the property into the name of the trust. The
second respondent
continued to give effect to the transfer to the extent that
it received a transfer duty clearance from the Receiver of Revenue.
[9] The second respondent then
applied for rates clearance certificate. The said certificate could not be
obtained, as the
plans and engineers approval for the improvements to the
property from the Municipality were not approved. The applicants were
advised
that in order to obtain the rates clearance certificate, the municipality
required a stability report from an engineer
on all structures, as the property
was showing signs of instability. The stability report could not be obtained.
[10] First respondents
opposition to the relief sought is reliance on the non-compliance with the
suspensive condition and
further that any action on the part of the second
respondent, after the period mentioned in the suspensive condition was a
misapprehension
of the correct status of the agreement.
[11] It was submitted on behalf
of the applicants that the author of the letter representing the first
respondent clearly instructed
the second respondent to effect transfer of the
property into the name of the trust. The said respondents and more
specifically
the first respondent, is aware that the author of the said letter
was informed by the first respondent that the purchase and sale
agreement did
not contain the correct description of the property. The aforesaid was common
cause and the agreement was accordingly
amended to correct the description of
the property by way of an addendum.
[12] It was further submitted on
behalf of the applicants that the agreement was signed in December, the author
of the letter
informed the first applicant that due to the lateness in the
year, the agreement would be amended in January. It was further brought
to the
authors attention that a loan was no longer required in order to purchase the
property, as the trust had the full purchase
price in the bank account with
Albaraka Bank. In January 2010, the author informed first applicant that he
should accordingly
send her the letter from Albaraka Bank confirming that the
account was in operation and that the funds were available. It is for
that,
that the letter sent was not a bank guarantee.
[13] It was submitted on behalf
of the applicants that they did not fail to comply with the period in terms of
the suspensive
condition. They contend that it was the second respondent,
through an error that extended the period for compliance.
[14] The applicants submitted
that, the second respondent through its representative condoned/extended the
terms of the suspensive
condition in that, the first applicant was allowed to
provide letters from his bank that sufficient funds existed for the purchase
of
the property rather than provide a bank guarantee.
[15] The abovementioned
submissions by the applicants are incorrect. There is no suggestion from the
papers that the respondents
either condoned non-compliance or extended the
terms of the suspensive condition.
[16] It is common cause that the
applicants did not fulfil the suspensive condition to raise necessary finance
within 14 days
of signature of the agreement, being 3 December 2009.
[17] It was submitted, correctly
in my view, on behalf of the respondents that there is no evidence nor is it
applicants case
that the suspensive condition was waved by the parties or that
the fulfilment period was extended beyond the 14
th
day period when
the agreement was still extant.
[18] Furthermore, the letter
issued by Albaraka Bank, is not in a form of a guarantee and does not pertain
to the trust but
is rather a financial disclosure of the first applicant in his
personal capacity. The letter was issued on 25 January 2010 long
after the 14
day period in the suspensive condition lapsed.
[19] It is trite law that
non-fulfilment of a suspensive condition renders an agreement void. See
Basson
v Remini & Another
[1]
,
and
Exparte De Villiers and another NNO: In re Carbon Developments (Pty)
Ltd (In Liquidation)
[2]
.
[20] In
Basson v Remini, supra
,
Magid J stated:
In fact, the question
posed in 1.2 of the agreed issues is, on any view of the matter, not a real
issue in the case. An agreement
subject to a suspensive condition
automatically falls away if the condition is not fulfilled by the dates fixed
by the parties
for its fulfilment
(Meyer v Barnard & Another
1984 (2) SA
580
(N)).
It follows, therefore, that nothing which is done after the date
fixed for the fulfilment of the condition can affect the position.
If the
condition is held to have been fulfilled by the relevant date, the contract is
good and enforceable; if not, there is no
binding contract between the parties
thereto. No question of fictional fulfilment can therefore arise by reason of
the conduct
of one of the parties to a contract after the date fixed for the
fulfilment of the condition.
[21] As indicated above, there is
no evidence on the papers to suggest that the second respondent neither agreed
to extend
the period as contained in the suspensive condition nor condoned
non-compliance. There is also no suggestion that the first respondent
had
accordingly waved this right to any benefit it held in terms of the condition.
[22] In suggesting that the
second respondent agreed to extend the period, as contemplated in the
suspensive condition or condoned
non-compliance, applicants rely in
Sewpersadh
and Another v Dookie
[3]
and
Mahabeer v Sharma NO and Another
[4]
.
[23] In
Sewpersadh and Another v Dookie, supra
, at para 23, Swain J held: The
issue of whether an innocent party has waved an accrued right to cancel an
agreement, or wave a
purported cancellation of an agreement, and whether such
conduct is to be adjudged subjectively or objectively, can only be of
application where such conduct has not resulted in a valid and lawful
cancellation of the agreement. For if it has, there cannot
be any talk of
waiver of rights by one of the parties; what is required is a new agreement between
the parties to revive the cancelled
agreement.
[24] In the present case, the
agreement lapsed and was of not force or effect after the non-fulfilment of the
suspensive condition.
[25] In
Mahabeer v Sharma NO
& Another, supra,
the court concerned with the issue of whether the
innocent party had waved an accrued right to cancel the agreement, prior to the
purported exercise of a right.
[26] It is trite law that in
order to succeed in obtaining an interim interdict, the applicants must show:
(a) A prima facie
right;
(b) A balance of
convenience;
(c) Apprehension of
reasonable harm;
(d) Absence of a
satisfactory alternative remedy.
[28] The onus is on the
applicants to show that they have established the requirements for an interim
interdict as set out
above.
[29] I have already indicated
above that the agreement lapsed and was of no force and effect after the
non-fulfilment of the
suspensive condition.
[30] It is clear from the above
that the applicants have failed to establish any right,
prima facie
or
otherwise, as a requirement for an interim interdict.
[31] The failure to establish a
prima
facie
right by the applicant renders the application fatally defective. It
is also clear from the material before me and in the argument
advanced that the
other requirements for an interim interdict have also not been satisfied. In
the circumstances, the applicants
application falls to be dismissed.
[32] In my view, there is no
reason why the costs should not follow the result in this matter.
[33] In the result, I make the
following order:
(1) The
applicants application is dismissed.
(2) The
applicants are ordered to pay the costs of the application jointly and
severally, the one paying the others to be
absolved.
SISHI
J
APPEARANCES
Date
of hearing : 26 June 2013
Date
of judgment : 30 October 2013
Applicants
Counsel : M.R. Naidoo
Applicants
Attorneys : Hoosen Kader & Associates
C/O
Messenger King
Shop
21, DCC Campus Building
(SPU
Salon)
PIETERMARITZBURG
Counsel
for the 1
st
& 2
nd
Respondents: V. Naidu
1
ST
Respondents Attorneys : Garlicke & Bousfield Attorneys
7
Torsvale Crescent
La
Lucia Ridge Office Estate
UMHLANGA
DURBAN
2
ND
Respondents Attorneys : Garlicke & Bousfield Attorneys
7
Torsvale Crescent
La
Lucia Ridge Office Estate
UMHLANGA
DURBAN
[1]
1992(2) SA 322 (N) at 327 (C)
[2]
1993(1) SA 493 (A) 505 A-B.
[3]
2008(4)SA 127 (D)
[4]
1985(3)SA 729 (A)