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[2009] ZAGPPHC 60
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Groenewald v Pieters and Others (24781/2008) [2009] ZAGPPHC 60 (15 May 2009)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
AND SOUTH GAUTENG HIGH COURT, PRETORIA)
DATE:
15/05/2009
CASE
NO: 24781/2008
UNREPORTABLE
In
the matter between:
JACOBA
FRANCINA GROENEWALD
APPLICANT
And
JOHANNES
JACOBUS DEWALD PIETERS
1
ST
RESPONDENT
MAGDALENA
BEATRIX PIETERS
2
ND
RESPONDENT
W.E.
SAAIMAN ATTORNEYS
3
RD
RESPONDENT
JUDGMENT
RAULINGA,
J
The
applicants launched an application against the respondents couched in
the following terms:
“
1.
Dat die Eerste en Tweede Respondente gelas word om die
oordragdokumente van Erf [....], C [....] [....],
Karen Park,
Pretori Noord, Gauteng te teken ten einde oordrag te laat
geskied aan die Applikant;
2.
Alternatiewelik
dat die Balju Wonderboon Distrik gemagtig word
om die oordragdokumente van Erf [....], C [....] [....], Karen Park,
Pretoria Noord,
Gauteng namens die Eerste en Tweede Respondente
te teken, indien die Eerste en Tweede Respondente nie die
oordragdokumente wil
teken nie;
3.
Dat die koste van hierdie aansoek deur die Eerste en Tweede
Respondente betaal word op ‘n
prokureur en klient skaal;
4.
Dat die Derde Respondent gelas word om die oordragkostes van die
oordrag van Erf [....],
Cyclamentweg [....], Karen Park,
Pretoria Noord, Gauteng te betaal de bonis propriis;
”
In
view of the fact that the first applicant’s daughter Natasha
Groenewald and her mother Catherine Johanna Maria Venter are
co purchasers and signatories to the second contract, the first
applicant applied for them to be joined as second and third
applicants respectively. The respondents did not oppose this
application and they were accordingly joined as second and third
applicants. The third respondent, an attorney, elected to abide
by the order of the court. The applicants have as a
result
abandoned a
de bonis propriis
cost order.
In
2005 when the first applicant and her late husband, one Daniel
Johannes Groenewald (married in community of property) experienced
financial difficulties, they approached the first and second
respondents with a view to enter into a contract with them, whereby
the respondents would loan money to them and in turn the first
applicant and her late husband’s house would be sold to the
first and second respondents. Further that a bond would be
registered against the house of the first applicant and her late
husband as security. A bond of R385 000.00 was registered
in favour of Rand Merchant Bank. The said agreement
is annexed
as “
JFG1
”. It was also agreed that once the
terms in clause 9 of the agreement have been fulfilled, the house
would be transferred
back to the purchasers.
It
was agreed that the purchasers would remain on the property.
The purchasers were to service the bond which they continued
to do.
After
her husband died on 26 May 2007 the first applicant fell in
arrears but she later managed to bring that up to date.
Annexure “
JFG2
” reflects that the first applicant
and the respondents confirmed that there were no moneys outstanding
and as a result an
undertaking was made by the said respondents to
transfer the property into the first applicant’s names.
The said undertaking
was confirmed by both the first and second
respondents on 16 October 2007. As a result of this
undertaking, a second
agreement was entered into between the first,
second and third applicants and the first and second respondents –
annexure
“
JFG3
”.
However,
the first applicant later received correspondence from the first and
second respondents’ attorneys that the transfer
cannot be
continued with since she was still in arrears – annexure
“
JFG4
”.
Since
a guarantee had been obtained and payments were up to date, the first
applicant was therefore entitled to have the property
transferred
into her names. The guarantee is annexed as “
JFG5
”,
dated 21 May 2008.
The
first applicant further avers that the third respondent ought not to
have transferred the property into the names of the first
and second
respondents since it was registered as security and that is
prohibited in terms of section 91 of the Deeds Registration
Act 47 of
1937.
The
respondents concede that an agreement was indeed entered into between
the first applicant and her husband and themselves at
the instance of
the first applicant and her late husband on 26 July 2005.
However, the first applicant and her
late husband were at times in
arrears. Further, that the conditions in terms of clause 9 have
not been met.
If
section 91 of Act 47 of 1937 is applicable then the applicant must
first ask for an order setting aside the “
first agreement
”.
If the “
first agreement is void
” then the “
second
agreement does not exist
”.
The
first applicant and her husband were in arrears in the amount of
R46 000.00. First applicant still owes them R6 368.38
in respect of municipal services and taxes which was supposed to have
been paid on 9 June 2008. There is also another
outstanding mortgage payment of R20 135.85. An amount of
R10 000.00 was paid on 18 March 2008 and another
R15 000.00 was paid on 20 March 2008 leaving a balance
of R9 773.51 still outstanding – annexure “
P1
”.
The first respondent had promised to sign the transfer documents on
condition the payments were up to date.
Annexure “
JFG5
”,
is according to the respondents not a guarantee it only indicates a
guarantee would be issued. The agreement in terms
of annexure
“
JFG3
” was cancelled by the respondents on
10 March 2008. Annexure “
P2
”.
The respondents declare that if the agreement is not cancelled, it is
thereby cancelled as per the second respondent’s
affidavit.
The
common cause facts are that the parties entered into the “
first
agreement
”. However, the first and second respondents
contend that the applicants ought to have applied for an order to
cancel
the “
first agreement
” if the transfer of
the property were to be voidable.
If
the applicants were to be successful in their endeavours, they should
prove that they have a clear right, that they would suffer
irreparable harm and that they have no alternative remedy.
The
“
first agreement
” between the parties was
cancelled as envisaged by section 91 of Act 47 of 1937.
Otherwise, there is no need for the
formal cancellation of the first
agreement by a court order. However, one must note that certain
essentials of the “
first agreement
” are ancillary
to the “
second agreement
”. If certain
conditions were fulfilled under the “
first agreement
”
there would be no need to fulfil same again, unless new conditions
are inserted in the “
second agreement
” which are
not at all dependent on the “
first agreement
”.
In casu
the servicing of the mortgage bond is an issue in
place. If this obligation were discharged under the “
first
agreement
” there would be no need for it to rear its head
again, in the “
second agreement
”.
Considering
that the “
first agreement
” was cancelled when the
“
second agreement
” was entered into it therefore
remains that the pendulum should swing towards the “
second
agreement
”.
The
first and second respondents rely on the suspensive condition which
is reflected in clauses 2.1 and 2.2:
“
2.1 This
agreement is subject to the suspensive condition that the Purchaser
(or the Seller or the agent on the purchaser’s
behalf) is able
to raise a loan upon the security of a first mortgage bond to be
passed over the property for the sum of not less
than R… at
prevailing rates and conditions within 30 days of date hereof.
2.2 This
condition shall lapse and the sale become unconditional upon the date
that formal, written notice is
given by the relevant financial
institution of the grant of the aforementioned bond, provided that
such notice is given within
the time period specified in clause 2.1
above.
”
Clause
9 reads as follows:
“
In the event of the
Purchaser failing to make payment or committing a breach of any of
the conditions of this agreement and failing
to make such payment
and/or failing to remedy such breach within 7 (seven) days after
written notice has been given to him by or
on behalf of the Seller
requiring him to remedy such breach or make such payment, the Seller
shall be entitled, without further
notice and without prejudice to
any other rights available in law.
9.1
to claim immediate payment of the entire balance of the purchase
price outstanding and all other amounts due and owing in terms of
this agreement in respect of rates, taxes, levies, imports and
any
other municipal charges, vat, and/or transfer costs, payable by the
Purchaser in terms of this agreement together with payment
of
interest thereon at a rate equal to the prime bank rate of interest
plus 2% (two percent) as charged by Standard Bank of South
Africa
Limited from time to time on bank overdraft, or alternatively;
9.2
to cancel this agreement payments already made as liquidated
damages.
”
Although
I have indicated
supra
that the “
first agreement
”
may not be applicable it is important to note that in the addendum to
that agreement the sellers had an option to buy the
property from the
estate in the event of one of the purchasers dying. The first
and second respondents chose the option to
sign a “
second
agreement
” instead.
The
“
second agreement
” was signed on 17 August 2007.
In October 2007 the first and second respondents were already
aware of
the outstanding amounts. However, on 15 October 2007
after an amount of R46 200.00 was paid apparently by the first
applicant, they sent an acknowledgment of payment to the first
applicant offering to sign the necessary documents – annexure
“
JFG2
”. Surprisingly, on 16 January 2008,
the respondents’ attorney sent a letter to the applicants’
attorneys in which a plethora of issues were raised
inter alia
complaint that the mortgage bond payments were in arrears.
Further that the respondents were prepared to sign on condition
the
guarantee was made available to them. They threatened to cancel
the agreement if payment was not made immediately and
the guarantee
was not made available. One would accept that in doing so the
respondents were acting in terms of clause 2
– the suspensive
condition as well as clause 9 – the breach. The
applicants only reacted to this demand in correspondence
dated
21 May 2008 in which they confirmed that an amount of
R370 000.00 was available for guarantees – annexure
“
JFG5
”. This was after the respondents had
indicated the cancellation of the agreement as per correspondence
dated 10 March 2008
– annexure “
P2
”.
In short the “
so called
” guarantee was
submitted too late.
In
their answering affidavit the first and second respondents mentioned
other outstanding amounts which were never raised in their
letters to
the applicants. One should be mindful of the fact that when the
letter of 15 October 2007 was sent to
the applicants by the
first and second respondents in which they offered to sign the
necessary documents, the end of September 2007
had already
passed. At a glance one may be tempted to think that they were
not at all genuine because this fact ought to
have been mentioned in
the letter of 15 October 2007 already. One may also
be of the view that this was an after
thought used to somersault from
the original position as reflected in correspondence of 15 October
2007.
However,
the first and second respondents give the details of the amounts
owing and the items for which they are outstanding.
Cognisance
must also be taken of the fact that these amounts are disputed by the
applicants. There is a need to enquire if
the dispute is
genuine.
When
the first and second respondents made an offer to sign the documents,
the applicants were willing to come to the party.
Further, when
they were informed that there are certain amounts owing, they again
were willing to come to the party – they
made certain payments
without raising any concrete dispute. However, they later cried
foul by claiming that they are owed
R566.60. I am of the view
that the applicants did not canvass this issue seriously and
satisfactorily. They only raise
the purported amount when the
first and second respondents show their unwillingness to sign the
documents. This argument
does not advance their cause.
In
their submissions the applicants argue that in terms of the
provisions of section 91 of Act 47 of 1937 the “
first
agreement
” is void. However, the first and second
respondents aver that if that be the case then the applicant must
first ask
for a court order to set the “
first agreement
”
aside. Section 91 reads as follows:
“
No transfer of land …
except a mortgage bond made as security for a debt or other
obligation shall be attested by any Registrar
or registered in any
Deeds Registry.
”
If
this section were to be given its literal meaning, the applicant’s
case would be sustained. However, the respondents’
case
finds solace in a number of authorities which reflect a contrary view
that the section says that the Registrar may not attest
such a
transfer and that means no more than that if a document is presented
to the Registrar of Deeds for attestation, he may not
attest and
register it if it
ex facie
is a transfer as security. It
does not
impose upon the Registrar of Deeds a duty to enquire in
each case into the background of the transaction to discover whether
in
fact it is a transfer as security or an out and out transfer
.
(My emphasis) This does not make the transfer void.
Lewis
v Petsch Properties (Pty) Ltd
1961 1 SA 260
(N) 292 293.
The argument of the first and second respondents is therefore
sustained.
I
do not wish to dwell into other aspects which may not add value to
this judgment. What I think is worth discussing are the
suspensive conditions and the breach. The suspensive condition
was not complied with – clauses 2.1 and 2.2. Clause
9 of
the contract was breached. The applicants failed to pay rates
and taxes to the municipality. The mortgage bond
was itself in
arrears.
When
a contract fixes the time for performance
mora
is said to
arise from the contract itself (
mora ex re
) and no demand
(
inter pellatio
) is necessary to place the debtor in
mora
because, figuratively, the fixed time makes the demand that would
otherwise have to be made by the creditor – Christie. –
The Law of Contract in South Africa 5
th
ed, page 498
and also
Laws v Rutherfurd
1924 AD at 261 262.
The
parties had inserted a clause in their agreement which fixed the time
for performance and the time stated was of the essence
which in terms
of the contract was a forfeiture clause. The respondents as the
creditors had the right to cancel the agreement
after the applicants
had been given notice to rectify the default within a further
prescribed time and failed to comply –
Christie supra
at 506.
The
operation of a suspensive condition is illustrated in Melamed and
Another v B P Southern Africa (Pty) Ltd
2002 2 SA 614
at 625 (D E):
“
A suspensive condition is a condition suspending the
operation of the obligations from the contract pending the occurrence
or non occurrence
of a particular specified event.
”
The agreement under consideration is subject to a suspensive
condition. This entails that the agreement would
be discharged
ipso iure
on non fulfilment of the conditions. The
applicants have no clear right.
When
this matter was argued counsel for the applicants made reference to a
judgment of my colleague HARTZENBERG, J. I
had the
privilege of reading the judgment to wit. “
ILZE
EICHSTAD TD PROKUREURS & 7 andere Applicants en S. J. & 1
Ander:
“
Respondent
.”
This
case bears no relevance to the current matter and as a result it does
not assist the cause of the applicants.
Based
on the above reasoning, I am convinced that the applicants’
case cannot succeed.
It
therefore follows that the following order must be made:
1.
The applicants’ application is dismissed.
2.
The applicants are jointly and severally ordered to pay the costs of
the application, the
one paying the others to be absolved.
T
J RAULINGA
JUDGE
OF THE NORTH GAUTENG HIGH COURT
24781/2008
Heard
on
:
For
the Appellant
: Adv
Instructed
by
: Messrs
For
the Respondent
: Adv
Instructed
by
: Messrs
Date
of Judgment
: