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[2011] ZAKZDHC 83
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Pillay and Another v Bisnath and Others (6793/2010) [2011] ZAKZDHC 83 (14 December 2011)
IN THE KWAZULU-NATAL HIGH
COURT, DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO 6793/2010
In the matter between:
VASUDEVAN ARNAJALA
PILLAY
…...............................................
FIRST
PLAINTIFF
VARSHA PILLAY
…......................................................................
SECOND
PLAINTIFF
and
D BISNATH
….................................................................................
FIRST
DEFENDANT
G BISNATH
…............................................................................
SECOND
DEFENDANT
REGISTRAR OF DEEDS
…...........................................................
THIRD
DEFENDANT
Order
[1] The plaintiffs’
claim is dismissed with costs.
[2] The plaintiffs are
ordered to pay the costs of the interdict proceedings.
JUDGMENT
Date:14 December 2011
PLOOS VAN AMSTEL J
[1] The plaintiffs seek
an order for the transfer to them of an immovable property which the
first plaintiff purchased from the
first and second defendants in
terms of a written agreement dated 18 January 2002. I will refer to
them herein as ‘the defendants’.
The third defendant, who
is the Registrar of Deeds, played no part in the proceedings. The
property is described as 894 Phoenix
and is situated at 14 Fieldhaven
Place, Forest Haven, Phoenix, Durban. The defendants in turn seek an
order declaring the agreement
to have been validly cancelled, the
ejectment of the plaintiffs from the property, occupational rental
and damages for holding
over.
[2] The defendants raised
three special pleas and contended in the alternative that the
agreement had been cancelled. The special
pleas were, firstly, that
the claim for transfer of the property has been extinguished by
prescription, secondly, that the agreement
is invalid for want of
compliance with the provisions of
s 2(1)
of the
Alienation of Land
Act 68 of 1981
and, thirdly, that the agreement is invalid in terms
of
s 15
of the
Matrimonial Property Act 88 of 1984
as it was
concluded without the written consent of the second plaintiff, to
whom the first plaintiff is married in community of
property.
[3] I propose to deal
only with the issue of prescription because the conclusion to which I
have come disposes of the matter. For
the sake of brevity and
convenience I refer to Mr Pillay as the plaintiff and to Mr Bisnath
as the defendant. The agreement was
concluded on 18 January 2002. The
purchase price was the sum of R95 000, which was payable on the date
of registration of transfer.
The obligation of a seller to give
transfer of an immovable property pursuant to an agreement of sale is
a debt which is subject
to the provisions of the
Prescription Act 68
of 1969
. In terms of
s 11
(d) of the Act the period of prescription
is three years.
[4] The plaintiffs’
answer to the prescription point is that the defendant gave repeated
undertakings from about February
2002 until the year 2009 that the
property would be transferred to them. As a result, they contend, the
running of prescription
was interrupted and prescription commenced to
run afresh in terms of
s 14
(2) each time such an undertaking was
given.
[5] The defendant
disputes that he gave any such undertaking after 20 March 2003, which
is the date on which he says he cancelled
the agreement. The
background against which this dispute should be considered is the
following.
[6] Clause 9 of the
agreement provides as follows: ‘All expenses of and incidental
to the preparation and registration of
the transfer and of the Bond
(if any), shall be borne by the purchaser and transfer shall be
passed by the seller’s conveyancers
after the purchaser has
paid all amounts due in terms of this agreement and has also
furnished the guarantees herein referred to.
The purchaser undertakes
within 7 (seven) days after being called upon to do so, to pay to the
said conveyancers the estimated
costs including transfer and stamp
duty and the proportion of rates for which the purchaser is liable
and to provide all such information
and to sign such documents as may
be required for the purposes of transfer.’
[7] The plaintiff was not
able to pay these costs from his own funds. His application for a
loan was for an amount of R105 000,
while the purchase price was R95
000. The difference was intended to cover the transfer costs. The
loan was however only approved
in an amount of R95 710. On 5 March
2003 the plaintiffs signed an acknowledgment of debt in favour of
Sunitha Bisnath Attorneys,
who had been appointed as the conveyancers
responsible to deal with the transfer. In terms thereof the
plaintiffs undertook to
pay the transfer and associated costs to the
attorneys in instalments of R500 per month ‘on each salary
date’.
[8] The defendant
testified that the plaintiff had undertaken to arrange for a debit
order against his bank account in respect of
the instalments of R500
to cover the transfer costs. He failed to do so, as a result of which
the defendant gave him written notice
that he was in breach of his
obligation to pay the costs, and that if he failed to do so within
seven days the agreement would
be cancelled. The costs were not paid
and on 20 March 2003 the defendant gave the plaintiff notice of the
cancellation of the agreement.
[9] The action was
instituted by the plaintiffs on 30 August 2010 and the summons was
served on 1 September 2010. It is plain that
by then the claim for
transfer would have been extinguished by prescription, unless
prescription began to run afresh as alleged
by the plaintiffs. The
onus is on the plaintiffs to establish this on a balance of
probabilities.
[10] The plaintiff
testified that after they had signed the acknowledgment of debt he
asked the defendant on numerous occasions
when the house would be
transferred to them. The defendant always told him not to worry as
the transfer was in progress. He once
mentioned that he was waiting
for a response from Pietermaritzburg. This continued until 2010. In
June 2010 the plaintiff became
aware that the defendant was in the
process of selling the property to someone else, and he obtained an
interdict preventing that,
pending the outcome of this action.
[11] The defendant
confirmed that the plaintiff was unable to pay the transfer and other
costs as required by clause 9 of the agreement.
He said the
conveyancer, who was his daughter, offered to assist the plaintiff by
allowing him to pay the costs in instalments.
This was why the
plaintiffs signed the acknowledgment of debt. She required him to
arrange for a debit order against his bank account,
which would be
paid monthly on the date when he received his salary. After they had
signed the acknowledgment of debt the plaintiff
went to the bank to
arrange the debit order. He returned a while later and said he had
not arranged one. This caused the defendant
to give the plaintiff a
notice that he was in breach of the agreement and calling on him to
pay the transfer costs within seven
days. The plaintiff failed to do
so and on 20 March 2003 the defendant cancelled the agreement.
[12] The plaintiff denied
that he received either the breach notice or the notice of
cancellation. He confirmed however that he
did not sign any documents
other than the agreement of sale, the application for a loan and the
acknowledgment of debt. In other
words, he never signed the bond or
the transfer documents.
[13] The plaintiff’s
assertion that the defendant assured him until 2009 or 2010 that the
transfer was in progress does not
seem to me to accord with the
probabilities. The sale agreement was signed on 18 January 2002. The
loan was approved by Standard
Bank in an amount of R95 710, which was
insufficient to cover the transfer costs in addition to the purchase
price. The acknowledgment
of debt was signed on 5 March 2003.
Although it does not in terms refer to a debit order it seems plain
that one was contemplated.
That is why the document refers to the
plaintiff’s bank account, an instalment on each salary date and
an undertaking by
him not to close the account. The plaintiff
confirmed in his evidence that he did not arrange for a debit order.
This led to the
defendant putting him on terms and cancelling the
agreement on 20 March 2003. On 18 June 2003 the plaintiff wrote to
the conveyancer
and urged her to proceed with the transfer. She
responded by fax on 25 June 2003, recording that he had been advised
that the sale
had been cancelled and advising him to seek legal
advice as he was being held liable for wasted costs and damages. On
14 August
2003 the defendant sued the plaintiffs in the Magistrates
Court for arrear rentals. The action was later dismissed for a
procedural
reason. On 16 January 2004 a further breach notice was
addressed to the plaintiffs, for reasons which were not explained in
the
evidence. The notice was followed by a further letter of
cancellation on 30 January 2004. On 16 February 2004 the defendant’s
attorney gave the plaintiffs notice to vacate the property and stated
that she was in the process of attaching the plaintiff’s
salary
in payment of the wasted costs and outstanding rental. On 28 February
2004 Standard Bank wrote to the conveyancer and confirmed
that the
plaintiffs no longer required the bond to be registered and requested
that ‘all documentation be closed’.
On 23 July 2008 the
defendant instituted a further action against the plaintiffs in the
Magistrates Court for arrear rental. This
action was also later
dismissed for a procedural reason. On 29 January 2009 the plaintiffs’
attorney wrote to the defendant
and demanded that the transfer be
proceeded with, failing which an application would be brought in the
High Court. The response
by the defendant’s attorney on 3
February 2009 was that the agreement had been cancelled and that an
application to compel
transfer would be opposed.
[14] Against this
background it seems inherently improbable that the defendant would
have given assurances about the transfer being
in progress. The
plaintiff made no payment towards the transfer costs, he signed
neither the bond documents nor the transfer documents,
the bank had
closed its fiIe and the defendant regarded the agreement as having
been cancelled. I am not now concerned with the
question whether the
cancellation was valid. The point is that the defendant regarded the
agreement as having been cancelled. There
is no reference in any of
the correspondence to the assurances which the defendant allegedly
gave with regard to the transfer.
While neither the plaintiff nor the
defendant was a flawless witness there is no basis for suggesting
that the plaintiff’s
evidence should be accepted in preference
to that of the defendant.
[15] I conclude that the
plaintiffs failed to establish on a balance of probabilities that the
defendant had given undertakings
or assurances which caused
prescription to start running afresh. The result is that the claim
for transfer has been extinguished
by prescription. It is unnecessary
in the light of this conclusion to consider the other defences raised
by the defendants.
[16] It emerged during
the trial that the defendants had obtained a default judgment against
the plaintiff, in a separate action,
for occupational rental. The
parties accordingly agreed that the counterclaim should be adjourned
sine die. The eviction order
was not pursued as the defendants need
to comply with the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act
19 of 1998.
[17] The costs of the
interdict obtained by the plaintiffs on 20 August 2010 were reserved
for determination by this court. It was
an interdict restraining the
defendants, pending the finalization of this action, from
transferring the property to someone else.
It is inevitable, having
regard to the outcome of the action, that the plaintiffs must be
ordered to pay those costs.
[18] In the result I make
the following order:
The plaintiffs’
claim is dismissed with costs.
The plaintiffs are
ordered to pay the costs of the interdict proceedings.
_______________________
PLOOS VAN AMSTEL J