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[2011] ZAKZDHC 10
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Zamisa v Kali and Others (15249/2009) [2011] ZAKZDHC 10 (17 February 2011)
IN THE KWAZULU-NATAL
HIGH COURT, DURBAN
REPUBLIC OF SOUTH
AFRICA
CASE NO.
15249/2009
In the matter between:
THOKOZILE PRINCESS
ZAMISA
…....................................
APPLICANT
and
DONALD BONAR MALIZO
KALI
…......................
FIRST
RESPONDENT
DANANA SARAH ZAMISA
…...........................
SECOND
RESPONDENT
SANDILE MASONDO
…........................................
THIRD
RESPONDENT
THE REGISTRAR OF
DEEDS,
KWAZULU-NATAL
…........................................
FOURTH
RESPONDENT
JUDGMENT
Delivered
on 17 February 2011
SWAIN J
[1] The applicant seeks
an order setting aside the sale of a certain immovable property, by
the first respondent, in his capacity
as the duly appointed Executor
in the estate of the late Zephaniah Zamisa to the third respondent,
and the setting aside of the
transfer of the property to the third
respondent, in pursuance of the agreement. Thereafter, the applicant
seeks an order directing
the first respondent to transfer the
property into the name of the applicant.
[2] It is common cause
that the property in question formed part of the estate of the late
Zephaniah Zamisa (the deceased) and that
in terms of the will of the
deceased, the first respondent was obliged to sell the property and
divide the proceeds of the sale,
amongst certain named beneficiaries.
[3] The third respondent
resists the claim of the applicant on the basis that the third
respondent purchased the property from the
first respondent, in terms
of a written agreement of sale for a purchase price of R138,000.00.
The third respondent alleges that
he fully performed his obligations
in terms of the agreement and consequently the first respondent
effected transfer of the property
into his name.
[4] In order to assess
the competing claim of the applicant to transfer of the property, it
is necessary to examine the validity
of the agreement upon which the
applicant relies. This is because the applicant in reply to the
second respondent’s answering
affidavit, does not dispute the
averments made by the second respondent that:
[4.1] The third
respondent offered to purchase the property for R138,000.00, and that
the first respondent and the second respondent
accepted the offer and
duly signed the written agreement.
[4.2] The third
respondent signed the written agreement on 12 August 2007 whilst the
first respondent signed it on 13 November 2007.
The second respondent
alleged that the first respondent inadvertently wrote the year 2000
on the agreement, which was clearly incorrect.
[4.3] The written
agreement is annexed to the second respondent’s answering
affidavit marked “Z3”.
[5] As will become
apparent the date when this agreement was concluded, decisively
determines the validity of the applicant’s
claim.
[6] As regards the second
respondent’s evidence of the correct date upon which the first
respondent signed the agreement,
it is clear that a clause in a
written contract recording the date on which it purports to have been
signed, is not a term of the
contract, but is no more than the
recording of an objectively determinable fact. If this fact is
wrongly recorded, evidence of
the true fact may be given and the
parol
evidence rule has no application
Christie –
The Law of Contract – 5
th
Ed pg 204
Otto v Heymans
1971
(4) SA 148
(T) at 154 A
[7] That the first
respondent signed the agreement on 13 November 2007 and not in
November 2008, is borne out by the fact that the
first respondent,
together with the second respondent, signed the consent to pass
transfer to the third respondent on 25 January
2008.
[8] It is therefore clear
on the papers that the agreement of sale was concluded between the
first and third respondent on 13 November
2007. The first respondent,
I would have thought, could have placed this issue beyond any doubt,
by dealing with this in his affidavit.
The first respondent, who is
an attorney, has however chosen to play a completely supine role in
the present dispute, saying that
his only interest in the matter is
that the property is sold for not less than R138,000.00 and that
“for
that reason, I do not believe that I should say anything relating to
the merits of the disputes in which the parties
are embroiled”
.
As will become apparent,
the cause of the dispute between the parties is in fact, the conduct
of the first respondent.
[9] Before dealing with
the validity of the applicant’s claim, it is necessary to deal
with the dispute between the parties,
as to the need for the second
respondent to consent to any sale of the property. The second
respondent maintains that her consent,
as the surviving spouse of the
deceased to whom she alleges she was married in community of
property, was required before the property
could be sold. The
applicant takes issue with the second respondent’s assertion
that the marriage was one in community of
property, asserting that in
terms of the provisions of the repealed Section 22 (6) of the Black
Administration Act No. 38 of 1927,
civil marriages of black persons,
were automatically out of community of property. In order to bring
about community of property
and of profit and loss, where no
ante-nuptial contract was entered into and registered, black persons
were obliged to make a declaration
in this regard before a marriage
officer, one month prior to the celebration of the marriage. The
second respondent consequently
alleges that the agreement of sale,
concluded between the applicant and first respondent
is
invalid and unenforceable
in the absence of her
consent.
The applicant in turn
alleges that
“the second respondent had no business in
signing the agreement of purchase and sale”
concluded
between the first respondent
and the third
respondent. I find it unnecessary to resolve this dispute, because
its resolution is irrelevant to decide the matter
between the
parties. If the consent of the second respondent to the sale of the
property was not required, then the fact that she
furnished her
consent to the sale of the property by the first respondent to the
third respondent, by signing the agreement, can
have no effect upon
its validity. In such a case the signature of the second respondent,
would be superfluous and regarded as
pro non
scripto.
As regards the absence of the second
respondent’s consent to the sale of the property by the first
respondent to the applicant,
it is not necessary to decide this
issue, because the applicant’s claim cannot succeed in any
event, for the reasons set
out below:
[10] The applicant
alleges that:
[10.1] During November
2006 she offered the first respondent R45,000.00 for the property
which was accepted.
[10.2] The amount of
R45,000.00 was paid to the first respondent on 18 November 2006.
[10.3] The first
respondent made her complete the first part of the sale agreement and
sign the deed of sale. The first respondent
advised her that he would
complete the rest of the document and he would favour her with it as
soon as he had completed it. The
applicant did not complete the date
and place portion of the sale agreement. A copy of the sale agreement
is annexed to the applicant’s
founding affidavit marked “TPZ4”.
[10.4] In December 2007
the applicant learnt that the first respondent had sold the property
to another person. The applicant’s
attorneys consequently wrote
to the first respondent by letter dated 13 December 2007, advising
that he had sold the house to the
applicant, that the sale of the
property to anybody else would be unlawful, and demanding transfer.
The first respondent replied
to this letter by way of a letter dated
18 January 2008 stating
inter alia
,
the following:
“
Mr. Zamisa’s
second wife insists on the sale of house Q336 Umlazi for much more
than the amount of R45,000.00 agreed upon
with Mr. Zamisa’s
first wife. And she did indeed find a buyer who was prepared to pay
R138,000.00. In the circumstances,
there was no way in which the
Executor could reject the second buyer’s offer”.
In this context the
“first wife”
is the applicant and the
“second wife”
is the second
respondent and Mr. Zamisa is the deceased.
[10.5] In a later letter
dated 01 April 2008, the first respondent wrote to the applicant’s
attorneys stating the following
“
Please note
that the house at Q336 Umlazi was sold long ago, but that it has not
been transferred. The only way, in our view, that
you can bring the
transfer process to a halt is to reach an agreement with the buyers
or obtain a Court order”.
[10.6] The applicant in
her replying affidavit in answer to the allegation made by the second
respondent, that the third respondent
purchased the property for
R138,000.00, stated that she was not aware that the property had been
placed in the open market for
sale and added the following
“
As soon as I
became aware that the property had been offered to the third
respondent I immediately approached the first respondent
which
resulted in the amendment of the agreement of purchase and sale to
reflect the purchase price as R138,000.00”.
[11] When the written
agreement relied upon by the applicant is examined, it is clear that
the amount of the purchase price is R138,000.00,
and this figure has
never been altered to delete an original purchase price of
R45,000.00. Indeed the fact that the agreement of
sale in question
never reflected such a purchase price, is made clear by the fact that
the following is recorded in the agreement
“
R48,000.00
has been paid; the balance to be paid on or before 14 May 2008”.
The applicant alleges
that after the first respondent agreed to a purchase price of
R45,000.00 she paid to him this sum, plus an
additional amount of
R3,000.00, in respect of transfer costs.
[12] In terms of the
Alienation of Land Act No. 68 of 1981
, the material terms of an
agreement of sale must be reduced to writing and signed by both
parties.
Van Leeuwen Pipe &
Tube (Pty) Ltd. v Mulroy
1985 (3) SA 396
(D)
The essential terms of a
contract of sale are the subject matter, parties and price
Levin v Drieprok
Properties (Pty) Ltd.
1975 (2) SA 397
(A)
at 408A
Consequently, a written
contract for the sale of land which does not fix the price is void.
Coronel v Kaufman
1920 TPD 207
The contract is in terms
of the Act of no force and effect, with the result that it is void
ab
initio
and can under no circumstances confer any right of action.
Wilken v Kohler
1913 AD 135
at 143
[13] It is therefore
clear that because the purchase price of R45,000.00 was never
included in the written agreement of sale, which
the applicant says
she signed during November 2006, no valid agreement of sale was
concluded at the time.
[14] The earliest date at
which a valid agreement of sale was concluded between the applicant
and the first respondent, is the date
reflected upon the agreement
relied upon by the applicant, which is 02 April 2008. Although the
applicant maintains that the agreement
of purchase and sale was
“amended”
to reflect the purchase
price as R138,000.00, it is quite clear that this could never have
happened.
[15] By virtue of the
supine attitude displayed by the first respondent, there is no
explanation advanced by him as to how it came
about that the
agreement relied upon by the applicant was concluded on 02 April 2008
and most importantly, on what basis he was
entitled to conclude such
an agreement, when he had already concluded a valid and binding sale
agreement with the third respondent,
on 30 November 2007. In
addition, what is left unexplained is how the first respondent
believed he was entitled to conclude such
an agreement, when he had
on 25 January 2008, signed the consent to transfer the property to
the third respondent. It is also left
unexplained by the first
respondent, on what basis he signed the consent to transfer the
property to the applicant dated 13 February
2009, when he knew he had
concluded the agreement of sale with the third respondent, and had
already signed a consent to transfer
the property to the third
respondent, a year before.
[16] By virtue of the
fact that the sale of the property by the first respondent to the
third respondent, preceded the sale of the
property by the first
respondent to the applicant, the third respondent was entitled to
obtain transfer of the property. Transfer
was effected into the name
of the third respondent on 08 May 2009. Delivery of the property has
accordingly been effected with
the result that the sale is
perfecta
and may not be challenged. Mr. Kuboni, who
appeared for the applicant, submitted however that the applicant
would be entitled to
have the transfer of the property into the name
of the third respondent set aside, because the first respondent,
after signing
the consent to transfer into the name of the third
respondent, never had the intention to transfer the property to the
third respondent.
However, at no stage prior to transfer of the
property, did the first respondent instruct the conveyancers not to
transfer the
property to the third respondent. Indeed, it is
difficult to understand how the first respondent would have been
entitled to do
so, having signed the written consent to transfer on
25 January 2008. The first respondent, in his letter dated 17 April
2008,
addressed to both of the Zamisa and Masondo families simply
asked
“may the transfer process be held in abeyance in
the meantime?”
In this context, I find
it incomprehensible that the first respondent alleges in his letter
dated 14 May 2009 that the transfer
“was done behind my
back”.
As stated by the conveyancer, attorney
Ramchunder, the first time she saw the agreement between the first
respondent and the applicant
was on receipt of the application
papers. In addition, the agreement between the first respondent and
the third respondent was
never cancelled and the consent to pass
transfer by the first respondent, was never revoked.
[17] The application must
accordingly fail. However, of grave concern to me is that the dispute
between the parties and this application
was caused by the
inexplicable conduct of the first respondent, in concluding contracts
of sale for the property, with both the
applicant and the third
respondent. The first respondent has chosen not to explain his
conduct to this Court and I have given serious
consideration to
ordering the first respondent to pay the costs of all of the parties
involved, but have decided that in the absence
of any explanation by
the first respondent, it may be unfair to do so.
The order I make is the
following :
(a) The application is
dismissed.
(b) The applicant is
ordered to pay the costs of the second and third respondents.
______________
K. SWAIN J
Appearances /…
Appearances:
For the Applicant :
Mr. W. S. Kuboni
Instructed
by :
Ndwandwe & Associates Durban
For the 2
nd
& 3
rd
Respondents :
Mr. D. D.
Naidoo
Instructed
by :
Zondi & Partners
Durban
Date of Hearing
:
14 February 2011
Date of Filing of
Judgment :
17 February 2011