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[2012] ZAGPPHC 69
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Bouba v Van Staden NO and Others (21046/2007) [2012] ZAGPPHC 69 (24 April 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT
(PRETORIA)
REPUBLIC OF SOUTH AFRICA
Case
No: 21046/2007
Date
heard: 23 and 24/04/2012
Date
of judgment: 24/04/2012
In
the matter between:
ASMA'OU
BOUBA
...........................................................................................................
Plaintiff
And
PETRUS
JACOBUS MARYN VAN STADEN
N.O.
...........................................
First
Respondent
AND
TIRHANI SITOS DE SITOS AAATHEBULA N.O.
DEON
MARIUS BOTHA N.O.
And
.................................................................
Second
Respondent
KGASHANE
CHRISTOPHER MONYELA N.O.
RICHARD
BARRY NEL
N.O.
...............................................................................
Third
Respondent
ESTER
EMERENTIA NEL
N.O.
........................................................................
Fourth
Respondent
MARIZE
COETZEE
N.O.
......................................................................................
Fifth
Respondent
MORAFIC
BOND ORIGINATORS
CC
...............................................................
Sixth Respondent
JUDGMENT
PHATUDI
J:
[1]
The plaintiff caused issue of summons against Morafic Homes CC
(Morafic Homes) and Moraffic Properties CC (Morafic Properties)
as
the first and second defendants respectively. The first and second
defendants have since been liquidated. The first defendant
has been
substituted by liquidators Petrus Jacobus Maryn Van Staden N.O. and
Tirhani Sitos De Sitos Mathebuia N.O. The second defendant
substituted by Dean Marius Botha N.O. and Kgashane Christopher
Monyela N.O respectively.
[2]
The third, forth and fifth defendants( the defendants) are sued in
their capacity as the trustees for the time being of Morafic
Trust; a
trust duly registered in terms of Trust Properties Control Act 57 of
1988. The sixth defendant is Morafic Bond Originators
CC.
[3]
At the commencement of the trial, plaintiff's counsel places on
record that on or about 9 July 2005, the plaintiff purchased
certain
immovable property known as 83 Leisure Bay. Annexure B1 to
particulars of claim is a copy of the deed of sale. During December
2006, plaintiff entered into a written building contract to build a
house on the purchased property. Annexure B2 to the particulars
of
claim is a copy of the contract.
[4]
The plaintiff paid R93, 000-00 as a deposit in terms of B2. The
plaintiff further paid R529 954-23 being the total of R378,
000-00
(balance of purchase price in terms of B1) and R151 954-23 (in
compliance with the collateral requirement) The plaintiff
claims
refund or restitution of the amount paid to Morafic Trust.
[5]
The defendants raises two points in limine as special plea -non
joinder as the first point and the second, Arbitration.
Non
Joinder
[6]
The defendant's counsel submits that Pretoria Waterfront (Pty) Ltd
(Waterfront), the seller of the property the plaintiff purchased
(a
party to B1), has an interest in this matter and should have been
joined as a party to the proceedings. The document purporting
to be a
deed of sale is duly signed by the parties thereto. Counsel further
submits that an amount of R93, 000-00 has been paid
as a deposit.
[7]
In rebuttal, counsel for plaintiff submit that Waterfront has, by way
of letter written by attorneys Ettiene Bedeker Incorporated,
confirmed that B1 is indeed a nullity. The letter written in
Afrikaans is read on record in the "English version". The
letter is annexed to the affidavit of plaintiff attorneys, Pieter
Aubrey Van Eck.
[8]
Plaintiff counsel further refers me to section 67 of Town Planning
and Township Ordinance No 15 of 1986, which provides:
"67(1)
After an owner of land has taken steps to establish a township on his
land, no person shall, subject to the provisions
of section 70 -
(a)
enter into any contract for the sale, exchange or alienation or
disposal in any other manner of an erf in the township;
(b)
grant an option to purchase or otherwise acquire an erf in the
township.
until
such time as the township is declared an approved township: Provided
that the provisions of this subsection shall not be construed
as
prohibiting any person from purchasing land on which he wishes to
establish a township subject to a condition that upon the
declaration
of the township as an approved township, one of the erven therein
will be transferred to the seller
67(2)
any contract entered into in conflict with the provisions of
subsection (1) shall be of no force and effect.
any
person who contravenes or faiis to comply with subsection (1) shall
be guilty of an offence.
[9]
Further thereto counsel submits that a finding of joining Waterfront
will be for academic purpose and time wasting in that Waterfront
will
simply be joined to confirm the invalidity of the agreement.
[10]
In my evaluation of the submissions made by both counsel, it is clear
that section 67 prohibits certain contracts. The contract
concluded
by and between Pretoria Waterfront (Pty) Ltd and plaintiff in respect
of stand no 83, (as set out in the deed of sale)
measures 423 square
meters, in Township: Erasmuspark X1, District Pretoria, is alleged to
be one such contract.
[11]
If the plaintiff contends that the agreement is a nullity and
Waterfront confirms the nullity, then, in my view, Waterfront
must be
joined as a party to the proceedings being the person who entered
into the contract of sale that gave rise to the cause
of action.
Section 67(1) clearly states that "...no person shall... (a)
enter into any contract for the sale...of an erf in
the township."
I am further of the view that joinder of Waterfront will neither be
for academic purposes nor a waste of time.
Waterfront has a case to
answer.
Arbitration
[12]
The defendants counsel first refers me to clause 15 of B2. The clause
stipulate:
"15.1
Any dispute or difference between the Contractor and the Employer
arising out of this Agreement shall be referred to
Arbitration..."
1
He
further refers me to clause 11 of B2 that stipulates:
"11.1
This clause is severable from the rest of this agreement and shall
remain in full force and effect even if this agreement
is terminated"
[13]
He submits that no arbitration has taken place and as a result,
plaintiff's case stands to be dismissed with costs.
[14]
In rebuttal thereto, plaintiff's counsel submits that B2 agreement
was concluded by the plaintiff and first defendant. Counsel
submits
that the third fourth and fifth defendants were not parties to the
agreement. He further submits that the agreement is
a nullity by
virtue of B1 being void. He further thereto submits that this point
is not fatal for the plaintiff in that it will
only serve to postpone
the hearing pending finalisation of arbitration proceedings.
[15]
In my evaluation of the submissions and consideration of the
arbitration clauses read on record, it is clear that the defendants
were involved in giving effect to the agreement. They were the
"financial managers" or intended to be project managers
of
the agreement. They are, in my view, parties to the agreement.
[16]
Clause 15.4 of B2 stipulate:" Cancellation in terms of [clause]
14 hereof shall not affect the validity of this agreement
to refer
all disputes to arbitration"
[17]
Clause 11 tips the scale by its stipulation that "this clause is
severable from the rest of this agreement and shall remain
in full
force and effect even if this agreement is terminated."
[18]
An arbitration clause is, in my view, peremptory when it refers any
dispute first to arbitration. This creates an obligation
on parties
to first refer the matter on arbitration before instituting action at
a court of law. I cannot agree more with the defendant's
counsel that
this action is premature. It is correct, as both counsel submits that
a special plea on arbitration simply suspends
the matter pending
finalisation of the dispute by the arbitrator
[19]
It is trite that costs follow the event. The defendants succeed with
their special plea and are entitled to their costs occasioned
by this
postponement. The following order is thus made.
19.1
The matter is postponed sine die
19.2
The plaintiff is to join Pretoria Waterfront (Pty) Ltd as a party to
the proceedings
19.3
The matter is stayed pending finalisation of the dispute by the
arbitrator.
19.4
The plaintiff is ordered to pay the defendants wasted costs
occasioned by this postponement.
AML
PHATUDI J
Judge
of the High Court
On
behalf of the Plaintiff: Ross & Jacobs Inc.
2nd
Floor, 457 Rodericks Road
Lynwood
Pretoria
Adv.
S.G. Gouws
On
behalf of the Defendants: Neil Esterhuysen Attorneys
C/O
W.F. Watson Attorneys 2 Malan Street Riviera Pretoria
Attorney:
J. Broodryk
1
Page
51-Clause 15.1 of B2