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[2011] ZAKZPHC 15
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Nortje v Fakie (AR643/10) [2011] ZAKZPHC 15; 2013 (1) SA 577 (KZP) (7 April 2011)
9
IN THE KWAZULU-NATAL
HIGH COURT OF SOUTH AFRICA PIETERMARITZBURG
CASE NO. AR643/10
In the matter between:
J. L. NORTJE
…..........................................................................
APPELLANT
and
M. FAKIE
….............................................................................
RESPONDENT
______________________________________________________
APPEAL
JUDGMENT
delivered
on 07 April 2011
_______________________________________________________
SWAIN J
[1] The appellant
challenges the decision of the Magistrate at Pinetown, in which two
preliminary issues, placed before the Magistrate
in terms of Rule 29
(4) of the Magistrates’ Court Rules, were decided in favour of
the respondent.
[2] The two issues were:
[2.1] Whether the
appellant’s notice (plaintiff in the Court
a
quo
) in terms of Clause 12 of the agreement,
was a proper notice, it being the respondent’s contention
(defendant in the Court
at quo
)
that because the notice was sent by the appellant’s attorney
and not the conveyancer, it was invalid, thereby non-suiting
the
appellant.
[2.2] Whether the
appellant’s alternative cause of action, based
in
delict
is sustainable in law, it being the
respondent’s contention that it is not.
[3] Clause 12 of the
agreement provides as follows:
“
MORA
INTEREST
In the event of there being any delay
in connection with the registration of transfer for which the
PURCHASER is responsible, the
PURCHASER undertakes, in addition to
any payments due in terms of clauses 3 and 8, to pay interest on the
purchase price at the
rate of 18% per annum, calculated from the date
on which the PURCHASER is notified in writing by the Conveyancers as
being in mora
to date upon which the PURCHASER has ceased to be in
mora, both dates inclusive”.
[4] It is trite that the
provisions of Clause 12 must be interpreted in the context of the
agreement as a whole
Swart v Cape Fabrix
(Pty) Ltd.
1979 (1) SA 195
(A)
at 202 C
[5] Additional clauses in
the contract, which are relevant to such an exercise are the
following:
[5.1] Clause 3.3 which
provides that the amount of R800,000.00 (referred to in paragraph 6.2
of the Schedule), payable from the
sale of the purchaser’s
property
“…
.
shall
be paid in accordance with the written directions of the conveyancers
and shall, on their written request be secured by bank,
or other
guarantees acceptable to the seller”.
[5.2] Clause 9 which
provides that the costs of and incidental to the preparation and
registration of the documents of transfer
and bond, including
transfer and stamp duty plus any Value Added Tax payable on such
costs, shall be borne by the purchaser and
paid to the conveyancers
“on their request”.
It also provides
that the documents related to the transfer shall be prepared and
registered by the seller’s conveyancers,
and both parties
agreed to supply the conveyancers
“on request”
with all documentation and information necessary, in
order to prepare transfer and/or bond documents. They also undertook
to sign
all transfer and bond documents
“on request by
the said conveyancers”.
[5.3] Clause 15 which
provides that in the event of the purchaser failing to pay any
amounts due in terms of the agreement, or to
furnish guarantees on
the due date, or in the event of the purchaser committing a breach of
any of the other provisions of the
agreement, the seller is entitled
to give written notice requiring the purchaser to make such payments,
or to furnish such guarantee,
or to remedy such breach, within seven
days after receipt of the notice. If the purchaser is still in
default at the expiration
of the notice, the seller is entitled to
enforce the agreement and/or to declare the full amount of the
purchase price to be immediately
due and payable, or to cancel the
agreement. It further provides that whatever action the seller may
choose, shall be without prejudice
to the right of the seller to
claim damages.
[6] It is therefore clear
that the parties to the contract, accorded to the conveyancers, the
right to determine when performance
was due by the respondent
(purchaser) to the appellant (seller) in terms of the contract. This
is so whether the performance required
was the payment of the balance
of the purchase price from the proceeds of the sale of the
respondent’s property, the furnishing
of guarantees by the
respondent to secure payment of this amount, the costs of transfer,
as well as the signature of documents
to effect transfer.
[7] Seen in this context
the conveyancers would be the party pre-eminently qualified to
determine, for the purposes of Clause 12,
firstly, whether there has
been a delay
“in connection with the registration of
transfer”
and secondly, of greater importance,
whether the respondent
“is responsible”
for
the delay. The clause clearly confers upon the conveyancers the power
to make a value judgment on the conduct of the respondent
and to then
notify the respondent in writing that the respondent in placed
in
mora.
It is also clear that the conveyancers
are conferred with the power, to determine the date from which the
respondent will be deemed
to be
in mora.
It is from this date that the respondent will be obliged
to pay interest at the rate of eighteen per cent per annum, until the
respondent
ceases to be
in mora
.
[8] I find it difficult,
regard being had to the aforegoing, to accord to Clause 12 the
meaning contended for by the appellant,
namely that in addition to
the conveyancers, the appellant enjoyed the right as seller, to
furnish such notice to the respondent,
and thereby place the
respondent
in mora
for the purposes of this Clause. Mr. de
Beer S C, who appeared for the appellant, argued that this was so
because there was nothing
in the agreement to prevent the appellant
from giving notice herself. In addition, the conveyancers were
nominated by the appellant
as conveyancers in terms of the agreement
and it was therefore permissible for the appellant, as principal, to
give the notice
which the conveyancers, as the appellant’s
agent, had failed to do. It is however clear, as submitted by Mr.
Collingwood,
who appeared for the respondent, that the mere fact that
a conveyancer is nominated by one of the parties, does not mean that
he
acts exclusively as the agent for that party, in all of the
functions the conveyancer performs in terms of the contract. In
accepting
the appointment as conveyancer in respect of the
transaction between the appellant and the respondent, the conveyancer
became the
agent of both parties.
Basson v Remini &
another
1992 (2) SA 322
(N)
at 328 A – B
The value judgment which
I have found was conferred upon the conveyancers to determine whether
a delay in the registration of transfer
was the responsibility of the
respondent, independently of the appellant, finds support in those
cases, referred to by Mr. Collingwood,
where a party to a contract
nominates an independent professional third person who, although an
agent of the principal nominating
party, is also required to exercise
an independent professional judgment. Mr. Collingwood submits that
the well known example in
building contracts where the principal
appoints an architect, engineer, or quantity surveyor, who is
required to exercise their
own professional judgment, as to whether
or not the contract has been performed, or how it is to be performed,
finds equal application
on the facts of the present case. It is clear
that the status of such an individual, may depend not only on the
wording of the
relevant clause in the contract, but also on the
nature of the dispute
Universiteit van
Stellenbosch v J A Louw
1983 (4) SA 321
(A)
at 337 C
The conveyancers in the
present case have obviously not been vested with the power in
question, to determine any disputes between
the parties, but are
clearly vested with the power to independently decide whether the
respondent is responsible for any delay
in connection with the
registration of transfer and to place the respondent
in mora,
as a consequence. That the appellant possesses an independent power
in terms of Clause 12 to decide that the respondent is responsible
for any delay and to give the necessary notice placing the respondent
in mora
, purely on the basis that the appellant nominated the
conveyancers concerned, who therefore occupy a position akin to that
of a
principal in the law of agency, is not supported by the
provisions of Clause 12.
[9] Mr. de Beer S C, in
aid of his argument submitted that should the conveyancers refuse,
for whatever reason to place the purchaser
in mora
, the seller
would be left in an intolerable position without remedy. I find it
unnecessary to decide whether the seller in such
a situation would be
remediless against the conveyancers because, in my view, the seller’s
remedy is to be found in the provisions
of Clause 15. If the
purchaser after being called upon to perform by the conveyancer,
fails to pay any amounts due, or fails to
furnish guarantees on due
date, or fails to sign any document, the seller would be entitled
independently and in terms of this
Clause to afford the purchaser
seven days, within which to remedy the breach. In the event of the
purchaser failing to do so, the
seller would have at its disposal,
all of the remedies provided for in Clause 15. In my view, when
Clauses 12 and 15 are examined
in the context of the contract as a
whole, it is clear that they provide for two independent avenues to
be pursued, by the conveyancers
and the seller respectively, to
compel compliance by the purchaser with her obligations in terms of
the contract, with an obvious
bar to the enforcement of inconsistent
remedies. An example of the latter would be where the seller after
due notice to the purchaser
in terms of Clause 15, elected to cancel
the contract, this would obviously preclude a claim for interest on
the balance of the
purchase price, payable in terms of a notice given
by the conveyancers to the purchaser.
[10] In the result the
appellant’s attorney was not entitled to give notice to the
respondent placing the respondent
in mora
in terms of Clause
12.
[11] Turning to the
alternative cause of action based
in delict
for payment of
damages as a result of the delay in effecting transfer. The
appellant’s cause of action appears to be based
upon the
contention that the respondent owed a duty of care to disclose to the
appellant, that there might be delays in the registration
of
transfer, arising out of the winding up of the estate of the
respondent’s late husband.
[12] The following
dicta
of Grosskopf A J A (as he then was) in
Lillicrap,
Wassenaar & Partners v Pilkington Brothers
1985 (1) 475 (A) at
500 F – G and 501 E – F
are apposite.
“
In
considering whether an extension of Aquilian liability is justified
in the present case, the first question that arises is whether
there
is a need therefor. In my view, the answer must be in the negative,
at any rate in so far as liability is said to have arisen
while there
was a contractual
nexus
between the parties. While the contract persisted, each party had
adequate and satisfactory remedies if the other were to have
committed a breach. Indeed the very relief claimed by the respondent
could have been granted in an action based on breach of contract”.
“
Apart from
defining the parties’ respective duties (including the standard
of performance required) a contract may regulate
other aspects of the
relationship between the parties. Thus, for instance, it may limit or
extend liability, impose penalties or
grant indemnities, provide
special methods of settling disputes (eg by arbitration) etc. A Court
should therefore in my view be
loath to extend the law of delict into
this area and thereby eliminate provisions which the parties
considered necessary or desirable
for their own protection”.
[13] In the present case
the appellant had effective remedies in terms of Clause 15 to deal
with any breach by the respondent. In
addition, Clause 12 made
detailed provision for the role of the conveyancers, in ensuring
compliance by the respondent with her
obligations in terms of the
agreement. To accord to the appellant a cause of action based
in
delict
, would have the effect of eliminating
provisions in the agreement, which the parties considered necessary
or desirable, for their
own protection.
[14] The appellant is
accordingly not entitled to such an alternative cause of action based
in delict.
The order I make is the
following
The appeal is dismissed.
The appellant is ordered
to pay the
respondent’s costs.
_________
K SWAIN J
I agree
____________
BOOYENS A J
Appearances /
Appearances:
For the Appellant :
Mr. A. de Beer S C
Instructed by
:
Patrick Lander Attorney
C/o Tatham Wilkes Inc
For the Respondent
:
Mr. A. D. Collingwood
Instructed by
:
Mariam Cassim Associates
Pinetown
Date of hearing :
04
April 2011
Date of Judgment
:
07 April 2011