Visvanathan and Another v Provincial Department of Housing for the Province of Kwazulu-Natal and Another (11184/2008) [2009] ZAKZPHC 59 (18 September 2009)

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[2009] ZAKZPHC 59
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Visvanathan and Another v Provincial Department of Housing for the Province of Kwazulu-Natal and Another (11184/2008) [2009] ZAKZPHC 59 (18 September 2009)

IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
,
PIETERMARITZBURG
CASE NO. 11184/2008
In the matter between:
RUGIN
VISVANATHAN FIRST
APPLICANT
AVASHA
VI
SVANATHAN
SECOND APPLICANT
and
THE
PROVINCIAL
DEPARTMENT OF
HOUSING FOR THE PROVINCE OF
KWAZULU-NATAL
FIRST RESPONDENT
THE
REGISTRAR OF DEEDS FOR THE
PROVINCE
OF KWAZULU NATAL SECOND RESPONDENT
JUDGMENT
SISHI J:
[
01] On
15 September 2008, the Applicants applied for and were granted an
order in the following terms:
(1)(a) “
That
the purported cancellation by the First Respondent of the purchase
and sale agreement entered into between the First and the
Second
Applicant on the one hand and the First Respondent on the other on 29
April 1999 be and is hereby set aside.
That the First and the Second
Applicants provide guarantees to the First Respondent in respect of
the balance of the purchase
price payable by Applicants to the First
Respondent in terms of annexure “A” to the Founding Affidavit.
That upon
Applicants’ complying with sub-paragraph (b) above, the First
Respondent
be
directed to forthwith do all things necessary including but not
limited to the signing of all documents necessary to effect
the
transfer of ownership of the property described as Lot 238,
Copesville situated at 12 Opal Terrace, Copesville,
Pietermaritzburg,
KwaZulu-Natal, from the name of the First
Respondent and its successor in title into the names of the First
and Second Applicants.
That in the event
of the First Respondent failing to comply with paragraph (c) above,
the sheriff or his duly authorised deputy
be and is hereby directed
forthwith to do all things necessary including but not limited to
the signing of all documents necessary
to effect transfer of
ownership of the property, from the name of the First Respondent and
its successor in title into the names
of the First and Second
Applicants.
That pending the determination of
this application, the First Respondent be and is hereby interdicted
and restrained from dealing
in and with the property and from
alienating or entering into any agreement relating to the use,
occupation and/or ownership
of the property.
(2)
That
pending the return date of the rule nisi the relief set out in
paragraph 1(e) above operate as an interim relief with immediate

effect”.
[02] This is the
return date of the
rule
nisi
granted by this court on 15 September 2008. The main issue in this
case is whether the cancellation by the First Respondent of
an
instalment sale agreement in respect of an immovable property
referred to in paragraph 1(c) of the Notice of Motion was properly

done.
[03] The First
Respondent based its right to cancel the agreement on the following
grounds:
T
hat
the Applicants let out the property without first obtaining the
written consent of the First Respondent and in so doing, the

Applicants breached clause 14.2 of the agreement of sale.
That the
Applicants failed to pay the requisite instalments and were in
arrears with their payment obligations, which conduct
on the part of
the Applicants constituted a breach of clause 5 of the sale
agreement.
The First Respondent contends that it
was entitled to cancel the agreement as the Applicants were in breach
of the sale agreement.
[04] Although the
Applicants allege that on 1 April 1993, they took occupation and
possession of the said property in terms of the
Self Help Building
Development Scheme instituted by the First Respondent, evidence has
established that the Diaram family in fact
took possession and
occupation of the same property under the same scheme in terms of an
agreement of sale the Diaram family signed
with the First Respondent
on 6 February 1997.
[05] On 29 April
1999, the Applicant signed and entered into a purchase and sale
agreement with the First Respondent (as it was
then known as the
KwaZulu-Natal Provincial Housing Development Board).
[
06]
To achieve its objective and to give effect to section 26 of the
Constitution of the Republic of South Africa which provides
that
everyone has the right to have access to adequate housing, the First
Respondent has instituted a number of programs and one
of such
programs is the self help upbringing development scheme. In terms of
this program, individuals were given land and a grant
which they used
to purchase materials from an approved supplier and then build their
own houses. Through such schemes, the First
Respondent assists
purchasers to buy their own homes, subject to the conclusion of
agreements of sale. The Applicants and the
First Respondent entered
into such agreement in respect of the said property.
[
07] The
said property was sold to the Applicants for R29 771,00, payable
by a purchaser over a period of 30 years calculated
at the date of
occupation. The clauses of the sale agreement between the Applicants
and the First Respondent which are relevant
to this application are
the following:
Paragraph
5.1
“The balance of the purchase price, together with interest thereon
including penalty interest shall be paid in monthly instalments
as
set out in the letter of advice and reduction of the amount
outstanding. Unless otherwise specified in such letter of advice,

the first such instalment shall be payable on or before the 1
st
day of the month subsequent to the date of this agreement and
thereafter instalments shall be paid on or before the 1
st
day of each succeeding month until the whole of the capital and
interest and any other sums of money due under the agreement shall
be
paid in full”;
Paragraph 12
“ The Board shall cause a letter of advise to be written to the
purchaser from time to time in which it is set out the amounts
to be
paid to the Board in terms of the agreement”;
Paragraph
14.1
“During the currency of this agreement the purchaser shall not
without the written consent of the Board having been first heard
and
obtained, mortgage, assign or pledge or in any way encumber the
property hereby sold or any part thereof nor pass any general
bond or
any bond containing a general clause, or cede, transfer or make over
rights under this agreement”.
Paragraph
14.2
“The purchaser shall be bound and obliged personally to occupy the
property hereby sold for a period of five years from the date
of this
agreement and shall not without written consent of the Board having
been first had and obtained let the property or any
portion thereof
within the stipulated period or until the whole of the balance of the
purchase price and interest thereon has been
paid whichever period is
the longer.
Paragraph
14.3
“In terms of section 52 of the Act, the property may not be sold
or otherwise alienated by the purchaser or his successors in
title
within a period of 5 years from the date of this agreement except to
a person approved by the Board and then only after he
has first
offered it for sale to the Board, at the purchase price reflected in
clause 3 not withstanding the fact that the total
amount of the
purchase price together with all interest thereon has been paid and
the mortgage bond which secured such purchase
price has been
cancelled by reason of such payment. This condition shall be
embodied in the deed of transfer registered within
the said period
and shall be binding on the registered owner even though the total
amount of the purchase price together with all
interest thereon may
have been repaid”.
Paragraph 21
“In the event of a breach by the purchaser of any of the
conditions and obligations imposed upon him in this agreement, or if

it is appearing that any statements recorded in his application and
any accompanying documents for the purchase of the property
are
false, the Board shall have the right to enter upon and take
possession of the property and to cancel this agreement by written

notice addressed to the purchaser and in the event or such
cancellation the purchaser shall be bound and obliged immediately to

vacate the property, the property hereby sold...”
[08
] As
indicated above the grounds upon which the First Respondent cancelled
the sale agreement between it and the Applicants is that
they
breached clauses 5.1 and 14.2 of the agreement of sale dealing with
the non-payment of instalments and the letting of the
property
without the consent of the First Respondent respectively.
[
09] In
a letter dated 13 November 2007, the Applicants were informed by the
First Respondent that they were in breach of clause
14.2 of the
agreement in that they had without the necessary consent; let the
property before such time as the balance of the purchase
price had
been paid. They were also informed that they were in breach of
clause 5 of the agreement, in that they were in arrear
with the
instalment payments and that the Applicants were obliged to make in
terms of their agreement. They were further informed
that should the
Applicants not remedy the situation within 30 days, the agreement
would be deemed cancelled. In a further letter
dated 13 December
2007, the Applicants were granted an extension up to 13 January 2008
to rectify their breaches.
[10
] In
the letter of 13 November 2007 from the First Respondent, the
Applicants were specifically informed that the department had

received an affidavit that the property in question is being sublet
to one Twala. As they were no longer in occupation of the
above
mentioned property, they were in breach of the conditions in clause
14.2 of the memorandum agreement of sale which states
that they shall
not without written consent of the department having been first had
and obtained let the property or any portion
thereof within the
stipulated period until the whole of the balance of the purchase
price and interest thereon has been paid whichever
period is the
longer. They were further informed that they had an outstanding
balance of R167 410,05, and that they were
in contravention of
clause 5 of the memorandum of sale for non payment of instalments.
[11
] In
a letter dated 5 December 2007, and through their attorneys, the
Applicants disputed that they were in breach of the sale agreement.

The Applicants however, called upon the First Respondent to afford
them and to allow them time to rectify the illegal occupation
of the
premises. In response to the letter of 5 December 2007, the First
Respondent afforded the Applicants until 13 January 2008
to remedy
the breach.
[12
] In
the letter dated 23 June 2008, the Applicants and their Attorney were
informed that the Applicants had had more than enough
time to remedy
their breaches of the contract, but had failed to do so, and that the
contract of sale was accordingly cancelled.
One such letter was sent
to the Applicants and the other letter was sent to the Applicants’
Attorneys. Although the letter
addressed to the Applicants is
addressed to the First Applicant, it clearly states that the sale
agreement between the Department
of Housing and Mr and Mrs
Visvanathan has been cancelled with effect from 13 January 2008. The
letter addressed to the Applicants’
Attorneys also clearly states
that the sale agreement between the Department and Mr and Mrs
Visvanathan is cancelled as from 14
January 2008, and that the
attached copies of the cancellation letters were sent via registered
mail to Mr and Mrs Visvanathan.
Although it appears that there is a
discrepancy as to the effective date of cancellation, this is neither
here or there. However,
a copy of the letter dated 23 June 2008
refers to the letter dated 13 November 2007 and colleted by the First
Respondent on 14
November 2007, giving then notice to remedy their
breach of contract within 30 days. The heading of the said letter
refers to
Mr and Mrs Visvanathan, the Applicants.
[13
] The
Applicants submitted that the only copy of the cancellation letter
that was attached to the First Respondents answering affidavit
is a
copy of the cancellation letter that was addressed to the First
Applicant and was apparently sent by registered mail to 12
Opal
Terrace, Copesville, Pietermaritzburg. The grounds for cancellation
were set out with sufficient clarity in the letters sent
to them and
the Applicants did receive these letters. The relevant letters were
put up as annexures to the founding affidavit
and it is alleged by
the Applicants that these letters were forwarded to them. I have
already indicated that there is no case
made out in the founding
affidavit that these letters were not received. It is therefore not
necessary to take this matter any
further.
[14]
Service
on a chosen
domicilum
citandi et executand:
is deemed to be service at the person who chose that address as a
domicilum
.
In terms of clause 15.1 of the sale agreement between the Applicants
and the First Respondent, the chosen
domicilum
is; postal address, 7 Vino Road, Raise Thorpe, Pietermaritzburg, and
a physical address 12 Opal Terrace, Copesville, Pietermaritzburg.

These are the addresses used by the First Respondent in communicating
with the Applicants. The allegation that therefore these
letters
should not have been sent to these addresses is unfounded.
[15] It was
conceded on behalf of the Applicant that the sale agreement clearly
prohibits the letting out of the property. On the
issue of breach of
clause 14.2 of the agreement relating to sub-letting, Counsel for the
Applicants submitted that the Twalas occupied
the property pursuant
to a Deed of Sale. The Applicants’ version is that the Twalas
refused to vacate the property when the
sale did not go through. It
was in contemplation that they would become registered owners of the
property. When the deal did
not fall through, they instead elected
to remain on the property as illegal tenants. The Twalas never
became registered owners
of the property.
[16
] It
was submitted on behalf of the Applicants that the issue of
occupational rental is different from the concept of occupying
as an
ordinary tenant. The Court was referred to the case of
Fen
Sam Jackson vs Conradie N.O. and Another
1955 (4) SA 266
(E)
.
It was submitted that in terms of this authority, the law recognises
that the word “occupy” can be used in different senses.
In terms
of this case, the word “occupy” can bear a variety of meanings.
This case is, however, of no assistance to the issues
involved in the
present case.
[17]
The
court was referred to clause 8.4 of the deed of sale between the
Applicants and the Twalas, which specifically records that
the
occupation of the property by the Twalas did not constitute an
agreement of tenancy between the parties. Eviction proceedings
were
instituted against the Twalas. Mr Chetty for the Applicants,
submitted that it is clear that the occupation contemplated
in clause
14.2 of the deed of sale between the Applicants and the First
Respondent which prohibits the letting of the property,
does not
prohibit the handing over of the property to a prospective purchaser
for the purposes of obtaining occupation. Mr Chetty
submitted
further that the Twalas in their affidavit did not set out in detail
the circumstances under which they came to be in
possession of the
property. The version of the Applicants that they handed over the
occupation on the basis that the Twalas would
become owners is
uncontradicted.
[18]
What
is clear from the arrangement between the Applicants and the Twalas
is that, the property was being let by the Applicants to
the Twalas
pending the sale and transfer of the property. Mr Crampton for the
First Respondent submitted correctly in my view
that the Twalas were
paying rental for the occupation. In terms of common law this
arrangement contains the essentials of an agreement
of lease.
[19]
There
is no doubt that the property was being let by the Applicants to the
Twalas pending the sale and transfer. The Twalas were
paying rental
to the Applicants. The Applicants also failed to evict the Twalas
timeously when the deal collapsed. Certainly when
the Applicants and
the Twalas concluded the agreement, the Applicants were in breach of
clause 14.2 prohibiting the letting of
the proceeding agreement
between the Applicants and First Respondent. Clause 21 of the sale
agreement between the Applicants and
the First Respondent is the
breach clause. In terms of this clause, if the purchaser is in
breach of any condition or obligation
in terms of the agreement, the
board or the seller shall have the right to
inter
alia
,
cancel the agreement.
[20
] The
argument by Mr Chetty for the Applicants, that the occupation
contemplated in clause 14.2 of the Deed of Sale which prohibits
the
letting of the property does not mean that the handing over of the
property to a prospective purchaser for the purposes of
occupation
cannot be correct: Firstly, this property was not simply handed over
to the prospective purchaser, for the purposes
of obtaining
occupation, in terms of the agreement, they paid rental for the
occupation pending sale or registration. Secondly,
when the sale
agreement involving the Twalas collapsed, the Applicants failed to
evict them timeously despite being given an opportunity
to do so.
[1
9] On
the further issues raised in reply, it was submitted on behalf of the
Applicants that the First Respondent’s act of cancelling
the
agreement has to be regarded as inefficient for the following
reasons:
(a) The
cancellation letter date
d
23 June 2008 read with the letter dated 13 November 2007, does not
comply with
section 19(2)
of the
Alienation of Land Act 68 of 1981
and that no adequate description of the breaches are provided. The
First Respondent provides no detail of the extent of the arrears
but
instead provides the extent of the outstanding balance due, which
balance is in any event incorrect.
(See
Section 19(1)
and (2) of the
Alienation of Land Act 28 of 1981
)
.
(b) T
he
letter dated 13 November 2007 was apparently collected by a Miss
Visvanathan, who is assumed to be the Second Applicant and the
letter
dated 23 June 2008, mentions that the letter dated 13 November 2007,
was collected by the First Applicant. Since the First
Respondent is
reliant on both letters to establish due compliance with cancellation
requirements, the discrepancy fatally undermines
the First
Respondent’s attempts in this regard, and clearly the notice of
cancellation was not unequivocal nor can it be said
that it was
conveyed to the Applicants. In this regard the Court was referred to
the cases of
Swart
v Vooslo
1965 (1) SA 100
(A); Miller & Miller v Dikson 1971(3) SA
581(A).
[20
] The
Applicant submits further that no written notice of cancellation was
given to the Second Applicant as was required by clause
21 of the
sale agreement. The notice was addressed to the Fist Applicant only.
The First Respondent provides no proof whatsoever
that the
cancellation notice was dispatched by the registered mail. The
attempt in this regard is the allegation by its Deputy
Director who
clearly played no part in the posting of the letter. The First
Respondent cannot rely on the sale agreement as its
authority for
sending a cancellation letter to 12 Opal Terrace at the time the
Applicants were not in possession and occupation
of the property.
The sale agreement, it was submitted, sanctions the addresses
nominated as chosen
domicilium
for only the periods prior to and during the times that the
Applicants were in possession and occupation of the property. The

conduct of the First Respondent of sending the cancellation notice to
twelve Opal Terrace at the time that it alleges that Applicants
were
neither in possession nor occupation of the property stands simply as
unjustifiable and cannot be regarded as due fulfilment
of its
obligation regarding providing notice of cancellation of the
agreement. I have already dealt with the issue of service
on a
chosen domicilium in paragraph 14 of this judgment. In any event the
Applicants have not alleged on the papers that, their
chosen
domicilium was at any stage changed prior to the cancellation of the
contract.
[21
] A
further issue raised in reply is the non-compliance with the
National
Credit Act 34 of 2005
. The Applicant submits further that the
instalment sale agreement falls within the ambit of the
National
Credit Act 34 of 2005
and the First Respondent’s failure to comply
with the provisions of
section 129
and
130
of the said Act rendered
its claim to have cancelled the agreement based on the Applicant’s
arrears without legal force and effect.
[22
] The
Applicants argued that the First Respondent provided no evidence that
it furnished the letter of advice to the Applicants,
which was an
obligation it had to discharge in terms of the agreement before it
could demand any payment from them and as such,
it cannot place any
reliance on the issue of the arrears to justify its rights to cancel
the agreement.
[2
3] Mr
Crampton submitted that it was incumbent upon the Applicants firstly
to set out that they were not in breach of the agreement,
and that
they were not in arrears. The Applicants only made a vehement denial
that they were not in arrears. In para 37 of the
Founding Affidavit
he states:
“
I vehemently deny that I am in
arrears with the payment of instalments. I place on record that the
First Respondent has to date
hereof not provided me with any letter
of advice indicating to me what my instalments ought to have been and
of any alleged areas”
Mr Crampton
submitted
,
correctly in my view, that one would have expected the Applicants in
the Founding Affidavit to provide information to the Court
to show
that they are not in arrears.
In annexure “C” to the Founding
Affidavit, page 59 of the papers, the arrears item is clearly set out
as R53 311,00. This document
was sent to the Applicant prior to the
cancellation of the agreement. It is therefore clear from the
documentation placed before
Court by the Applicants that they were in
arrears and that they were notified that they were in arrears.
On the application
of the rule
Plascon
Evans Paints Ltd vs Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623 (A)
at 634
,
I have to decide the question of arrears, and notification thereof
against the Applicant.
The submission on
behalf of the Applicants that they were not in arrears and that they
were not informed of the arrears has no substance
and is accordingly
rejected.
[2
4] In
the supplementary heads filed with the leave of court, the First
Respondent submits that the, Applicants raised three (3)
new grounds
upon which they contend that the cancellation of the agreement is
invalid;
(a) They submit
that there was no compliance with section 19 of the Alienation of
Land Act No. 68 of 1981,
(the
Act)
;
(b) They seem to suggest that the
letters of cancellation (annexures Q and R to the founding affidavit)
were not sent or received
by the Applicants;
(c) They contend that there has not
been compliance with
Section 129
and
130
of the
National Credit Act
34 of 2005
.
The First
Respondent submits that none of these grounds are raised in the
Applicant’s founding affidavit.
[25
] The
First Respondent submitted that an Applicant in an application for a
declarator is required to set out in its founding affidavit
the
grounds for the relief that is sought. The Applicants cannot, if
they are applying to court for a declarator, not mention
their
reasons in their Founding Affidavit and mention them for the first
time in the Replying Affidavit, or even worse in the Heads
of
Argument. The factual bases for such relief must be set out in the
founding papers and new facts cannot be raised in reply.
(See
Tilty’s Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd
1974(4) SA 362 (T); and Poseidon Ship’s Agencies (Pty Ltd
v African
Coaling and Exporting Company (Durban) (Pty) Ltd) 1981(1) SA 313 (D).
The First
Respondent submits that the Applicants are therefore precluded from
relying on these new
grounds
for the relief they sought.
[28
] The
grounds upon which the Applicants contend that the cancellation of
the agreement is invalid, are indeed not set out in the
Applicant’s
founding affidavit, they only appear for the first time in the
Applicant’s replying affidavit which was filed at
a very late stage
with the leave of the court and in their Heads of Argument.
[29
] In
the case of
Tilty’s
Bar and Bottle Store v ABC Garage and Others, supra
,
in an application to strike out matters which were only raised in the
replying affidavit, the court held that it has always been
the
practice of the courts in South Africa to strike out a matter in the
replying affidavits which should have appeared in the
founding
affidavit including the facts to establish
locus
standi
or the jurisdiction of the court. In this case, a case of
locus
standi
was only made in the replying affidavit
(at
368 H).
The court in this case went on to state that it lies in the
discretion of the court in each particular case to decide whether
the
Applicants’ founding contains sufficient allegations for the
establishment of his case. Courts do not normally countenance
a mere
skeleton of a case in the founding affidavit, which skeleton is then
sought to be covered in flesh in the replying affidavit.
In the
present case, the Applicant has not made out even a skeleton of a
case in so far as his
locus
standi
rests on the
stipulatio
alteri, (at 369 A-B).
The Court went on to state that the Respondents in the striking out
application would be greatly prejudiced in their case if the

allegation referred to on the papers were not struck out. Not only
in this new matter, which Respondents will not be able to deal
with
and refute unless they will be given leave to file a fourth set of
affidavits,
(at 370 A-B).
[30
] In
the case of
Poseidon
Ships Agencies v African Coaling and Exporting Company, supra, Broome
J
,
stated the following:
“
It is true that
in certain circumstances, it would be unjust to confine an applicant
to the contents of his launching affidavit.
An example of further
highly relevant facts coming into light later, and being introduced
despite
objection, is to be found in the
case
of
Registrar
of Insurance v Johannesburg Insurance Company Ltd (1)
1962 (4) SA 546
W
where, in an application made by the Registrar of Insurance for the
liquidation of the Respondent Insurance Company, a report prepared
by
a firm of Accountants was admitted. Another example of the court
authorising an applicant to introduce new material in reply,
is to be
found in
Klein
Hans v Van der Westhuizen NO 1971(1) SA 565 O at 568E
where the court considered that, as the ramifications of the
Respondents affairs were extensive and complex, it was impossible
for
the applicant to have had all the facts at his disposal before he
launched the sequestration proceedings. See also
Tilty’s
Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and Others
1974(4)SA 362 T at 369 A-B.
But
none of these cases go the length of permitting an applicant to make
a case in reply when no case at all was made out in the
original
application. None is authority for the proposition that a totally
defective application can be rectified in reply.
In my view it is
essential for the Applicant to make out a prima facie case in its
founding affidavit”
at
315 G – 316 A
.
[31
] Similarly
in the present case, the three (3) issues in paragraph 23 above,
raised by the Applicants in the reply, should have
been raised in the
Applicants founding affidavit. There is not even a suggestion on the
papers that these issues came into light
at a later stage after the
Applicants had prepared and launched their founding affidavit. These
issues raised in reply existed
at the time the Applicant prepared its
application and filed it in court. The Applicants did not rely on
these new grounds in
support of the relief that they sought. The
First Respondent would have had to ask for leave of court to file a
fourth (4) set
of affidavits in order to deal with these new issues
raised in reply.
[32
] The
Applicants are therefore precluded from relying of these new grounds
for the relief that they are seeking.
[
33] Even
if this finding is wrong, the First Respondent has correctly
contended that the new grounds are without merit. Chapter
2 of the
Alienation of Land Act No.68 of 1981
includes
section 19
of the same
Act and does not apply in respect of a contract in terms of which the
State is the seller. Section 4 of this Act provides
that this
chapter shall not apply in respect of a contract in terms of which
the state, the Community Development Board established
by section 2
of the Community Development Act 3 of 1963, the National Housing
Commission mentioned in the Section of the Housing
Act 4, of 1966 or
Local Authority is the seller.
[34] In paragraph 4
of the founding affidavit, the First Respondent is described as the
Provincial Department of Housing for the
Province of KwaZulu-Natal, a
department of KwaZulu-Natal administration and whose offices are
situated on 99 Pietermatizburg Street,
Pietermaritzburg,
KwaZulu-Natal, and in paragraph 7.1 of the answering affidavit, the
First Respondent is described as a government
department in the
provincial sphere of government.
[35
] Furthermore,
clause 25 of the agreement of sale entered into between the First
Respondents and Applicants, provides as follows:
“
It is hereby
recorded that in terms of section 4 of
Alienation of Land Act No. 68
of 1981
as read with
section 61
subsection 2 of the Act, this
agreement is not subject to the provisions of chapter 2 of the said
Alienation of Land Act”.
[36
] There
is therefore no doubt that the seller in the present case is the
State, and that section 19 of the said Act has no application
in this
matter. See also
Greater
Johannesburg Transitional Metropolitan Council v Eskom 2000(1) SA 66.
I
therefore find that the alleged invalidity of the cancellation of the
agreement based on non-compliance with section 19 of Act
No.68 of
1981 is misplaced.
[37
] The
First Respondent, argued correctly, in my view that
sections 29
and
130
of the
National Credit Act 34 of 2005
apply only in respect of
proceedings for the enforcement of a dept. These provisions do not
apply in respect of the cancellation
of an agreement. The present
proceedings are proceedings instituted by the Applicants as debtors.
Sections 129
and
130
of the
National Credit Act No.34 of 2005
therefore are not applicable. The argument by the Applicants that
these proceedings should have applied has no substance.
[38
] In
the light of the findings made in this matter it is not necessary to
deal with further allegations raised by the Applicants.
[39
] In
the result, the Applicants application should fail. The rule nisi
issued by this court on 15 September 2005 should be discharged
with
costs. There is no reason why the costs should not follow the
result.
[40
] The
following order is made:
The rule issued by
this court on 15 September 2008 is discharged with costs.
SISHI J
Date
of Hearing : 22 May 2009
Date of
Judgment : 18 September 2009
Applicant
s’
Attorneys : Charmane Pillay & Company
431 Loop Street
PIETERMARITZBURG
(Ref: Mrs Pillay/RN/V113)
Applicant
s’
Counsel : Mr K.P.Chetty
Respondents’
Attorney :
PKX
Incorporated
2 Princess Street
PIETERMARITZBURG
(Ref: N Motloli)
First
Respondents’
Counsel : D.P. Crampton
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