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[2012] ZAGPPHC 245
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Mokgohloa and Another v Xue and Others (73989/09) [2012] ZAGPPHC 245 (2 November 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETOR
[REPUBLIC
OF SOUTH AFRICA]
CASE
NUMBER :73989/09
DATE:
02/11/2012
MMAKAU
ALBERT
MOKGOHLOA
.............................................................
APPLICANTS
AND
ANOTHER
and
MING
PAM
XUE
................................................................................................
1
st
RESPONDENT
DRED
MARIA
XUE
...........................................................................................
2
nd
RESPONDENT
BELA-BELA
MUNICIPALITY
..........................................................................
3
rd
RESPONDENT
HERMAN
OBERHOLZER
ATTORNEYS
.......................................................
4
th
RESPONDENT
JUDGMENT
MABENA
AJ:
[1]
The applicants brought this application seeking the following orders.
(i)
That the sale entered into by and between the Applicants and First
and Second Respondents be cancelled or declared null and
void;
(ii)
That the First and Second Respondent or the agent be ordered to
restore the possession of property known as No NEW SUNVALLEY
STAND NO
2147 EXTENSION 2 BELA- BELA to the Applicants;
(iii)
That the Fourth Respondent be ordered to refund the First and Second
Respondents money they have paid for the sale of property
mentioned
in paragraph (i) and (ii) above
paid into the trust account of the
Fourth Respondent;
(iv)
The costs of the application to be paid by any the opposing
(v)
The Third and Fourth Respondents have neither filed any notice of
intention t oppose nor any answering affidavit.
2.
The aforesaid orders sought by the Plaintiff are based on the
agreement that was concluded by the Applicants and the First and
the
Second Respondents on the 23
rd
of October 2006 the lease
agreement and details the sale agreement in regard to the property
described as NEW SUNVALLEY STAND NO
2147 EXTENSION 2 BELA-BELA
together with the business that was operated from the premises.
The
selling price of the aforesaid immovable property and business was
R305 000-00.
[3]
The First and Second Applicants entered into an agreement with the
First and Second Respondents in terms whereof:
3.1
First and Second Applications sold a business (a going concern) to
the First and Second Respondents for R305 000-00 (Three
Hundred and
Five Thousand Rand).
3.2
The immovable property, which was registered in the name of the
Municipality will be transferred into the name of the Applicants
and
subsequently in the names of the First and Second Respondents.
3.3
That the First and Second Applicants will transfer the liquor licence
in respect of that business to the First and Second Respondents.
3.4
The Respondent complied with this part of the agreement in that the
amount of R305 000-00 (Three Hundred and Five Thousand Rand)
was paid
to the trust account of the Applicants attorney of record.
[4]
Facts in dispute alleged by the Applicants are the following:
a)
That the sale agreement has since been cancelled by the Applicants
by virtue of the letter dated 4 May 2007, annexed to the
Applicants
founding affidavit and marked "MAM3";
b)
That the Applicants accordingly, are entitled to evict the First and
Second Respondents consequent upon the alleged cancellation
of the
sale agreement;
c)
That the agreement has lapsed as a result of the non-fulfilment of
the suspensive condition in the agreement, which states;
"4.1
The coming into operation of this agreement it is subject to the
following suspensive conditions to be fulfilled and or
complied with
on or before a date not later than six months from the signature date
[or such later date as the parties may agree
to in writing] namely
that :-
4.2
If any of the conditions in clause 4.1 are not fulfilled by the date
stipulated therefore, then this agreement shall not come
into
operation. It shall be null and void and the parties shall restore
each other to the status quo ante".
[5]
The purchase price was paid into the trust account of Herman &
Oberholzer Attorneys as per agreement. This purchase price
was
payable to the Applicants upon transfer of the immovable property
into the names of the First and Second Respondents. This
is
stipulated in the agreement.
However,
to date hereof, the property still remains is registered in the names
of the Bela-Bela Municipality (Municipality).
[6]
The Applicants contend, in their founding affidavit that the fact
that the property is still registered in the name of the
Municipality, the Applicants are not in a position to transfer same
into the names of the First and Second Respondents pursuant
to the
agreement These are the reasons that promoted the present
application.
[7]
The First and Second Respondents, in their answering affidavit made
the following averments'-
(i)
That the agreement allowed the occupation of the property and
possession of it on the effective date been the date of signature;
(ii)
That the attempt by the Applicants to cancel the agreement by way
annexure "MAM3", a letter dated the 4
JP
of May
2007 was not accepted by the Respondents;
(iii)
That an allegation that the occupation of the property is "illegal"
cannot he accented in view of the valid agreement
of sale entered
between the parties;
(iv)
That the Applicants do not have a locus standi to bring the
application for eviction seeing that they are not owners of the
property in question.
[8]
There is merit on these contentions. The First and Second Respondents
gained occupation of the property in question following
a valid
agreement. The Applicants also lacks locus standi to bring eviction
proceedings based on ownership of the property since
the registered
owner is the Bela-Bela Municipality.
In
the light of the aforesaid, and on this issue only, Applicants are
not entitled to the relief prayed for in the notice of motion.
[9]
The applicants, in their replying affidavit introduced a new relief
which relates to a non-fulfilment of a suspensive condition.
The
Applicants aver that the suspensive condition as contained in
paragraph 4.1 and 4.2 of the sale agreement, which is quoted,
in.
paragraph
3.4 above, have not been fulfilled and as such, agreement has lapsed
by virtue of the fact that six months has since lapsed
from the date
of signature.
[10]
The First and Second Respondents aver that the Applicants are the
sole cause of failure to comply with the transfer of the
property and
the liquor licence. It is an averment that the Applicants prevented
the condition from being fulfilled and cannot
afterwards rely on the
suspensive condition whilst they were the cause of the unfulfilment
of the condition. It was submitted that
this condition was clearly
for the benefit of the First and Second Respondents. Therefore
Applicants failure to cooperate in passing
transfer of the property
and the liquor licence was calculated at attaining cancellation of
the agreement. There also seems to
be merit in this contention
[11]
It is
apparent ui3i no steps were taken by the First and
Second Applicants to have the property in question registered into
their own
names so as to enable further transfer of the property from
the names of the First and Second. Applicants to the names of the
First
and Second Respondents. The First and Second Applicants
founding affidavit omits details regarding any endeavours on their
part
to have the immovable property transferred from the ownership of
the Municipality into theirs.
Also
dubious is the fact that the issue of "compliance with the
suspensive condition within a period of 6 months", as
raised by
the First and Second Applicants in their replying affidavit, seems to
be an afterthought. The First and Second Applicants
council described
the issue of a suspensive condition as central in the whole
application, but it strikes one as odd and peculiar
in that it only
surfaced in the replying affidavit, ostensibly prompted by the First
and Second Respondents revelation in their
answering affidavit that
the primary reason for failure on the part of the First and Second
Applicants to effect transfer of the
premises in question to the
First and Second Respondents is due to the former inaction.
Had
they expeditiously facilitated transfer of the ownership into their
names, that would have resulted in the First and Second
Applicants
being able to transfer the ownership of the property to the First and
Second Respondents.
Failure
on the part of the First and Second Applicants to effect transfer of
the immovable property as aforesaid, is causally connected
to the
non-fulfilment of the suspensive condition relied upon by the First
and Second Applicants
See:
Thanolda Estates (Pty) Ltd v Bouleigh 145 (Pty) Ltd
2001 (3) SA 196
[12]
In the premises, the Applicants application is dismissed with costs.
MH
MABENA
ACTING
JUDGE OF THE
NORTH
GAUTENG HIGH COURT
Delivered
on 2 NOVEMBER 2012
For
Applicants: Mr Matloba
Matioba
Attorneys Pretoria
For
Respondents: Advocate G J Scheepers
Barnard
& Patel Attorneys Pretoria