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[2008] ZAWCHC 214
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Coigne Properties CC v Tindill and Others (5322/2008) [2008] ZAWCHC 214 (2 June 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
5322/2008
DATE
: 2
JUNE 2008
In
the matter between:
COIGNE
PROPERTIES CC
Applicant
and
JULIE-ANN
TINDILL
1
st
Respondent
JOHN
RILEY ATTORNEYS
2
nd
Respondent
REGISTRAR
OF DEEDS 3
rd
Respondent
JUDGMENT
FOURIE,
J
Applicant
applies for an order that first and second respondents be
interdicted and prohibited from transferring, alienating,
or dealing
in any other way with the immovable property known as Erf 171173,
Cape Town, situate at Riverstone Road, Wynberg,
Western Cape ("the
property"), pending the final determination of an action to be
instituted by applicant against first
respondent within 30 days of
the grant of the order, for declaratory relief
inter
alia
declaring
the deed of sale in respect of the property concluded between
applicant and first respondent to be valid and of full
force and
effect and secondly, the final determination of the application for
amendment of the sub-division condition in respect
of Erf 66437,
Cape Town, Wynberg, currently pending before the City of Cape Town,
including the determination of all appeals
and/or
review
procedures available in law.
First
respondent is the owner of the property, which she sold to applicant
in terms of a deed of sale dated the 31st of March
2006. Second
respondent is her attorney. The property was originally part of Erf
66437, Cape Town, which was sub-divided during
2005. The conditions
of sub-division provide
inter
alia
that
the dwelling unit to be constructed on the
property
shall
be single storey and that building plans in respect thereof are to
be submitted for approval by the Heritage Resources Section
of the
relevant local authority. Applicant purchased the property with the
intention of constructing a pair of double storey
houses thereon,
which led to the inclusion of a suspensive condition in clause 14 of
the deed of sale. It reads as follows;
"Special
conditions
This
sale is subject to the complete approval by the South Peninsula
section of the Cape Town City Council of plans for the construction
of a pair of double storey houses on the site, such plans to be
supplied and submitted by the purchaser, at his expense,
and
the seller agrees to give all necessary assistance, authority and
signatures to permit such plans to be submitted and approved,
under
her name. In order to minimise the expense of registration of
transfer the seller agrees that the purchaser may nominate
the
transferring attorneys."
For
purposes of determining this application clause 14 should be read in
conjunction with clause 5 of the deed of safe which provides
as
follows;
"Transfer
Transfer
shall be effected by the purchaser's conveyancers forthwith on 1st
July 2006, subject to comptiance with clause 14."
Applicant
contends that the deed of sale is still valid and enforceable while
respondents aver that same has lapsed as a result
of the failure of
the suspensive condition in clause 14. First respondent has now
resold the property to a third party, one Or
Eloff, but transfer
thereof in Dr Eloff's name has not yet taken place. He has not been
cited as a party in these proceedings,
but has filed an affidavit in
which he states that he considers himself joined and abides the
decision of the Court.
The
relevant facts in this matter are uncontentious and I do not intend
traversing same in any detail. I accept that anyone interested
in
this judgment is conversant with the contents of the affidavits
filed on behalf of the parties.
In
summary, applicant contends that as the suspensive condition in
clause 14 of the deed of sale contains no time for fulfilment,
the
law implies that same must be fulfilled within a reasonable time.
See
Alfred
McAlpine and Son (Ptv) Limited v Transvaal Provincial Administration
1974(3) SA 506 (A) at 526 F-G and
Cardoso
v Tuckers Land and Development Corporation
1981(3) SA 54 W at 61 G-H. Applicant further avers, that having
regard to the relevant facts, a reasonable time for the fulfilment
of this suspensive condition has not yet elapsed, with the result
that the deed of sale is of full force and effect.
Respondents,
on the other hand, contend that the agreement of the parties as
embodied in the deed of sale, and in particular Clause
14, read with
Clause 5 thereof, is that this suspensive condition would be
fulfilled by 1 July 2006. As the condition had not
been fulfilled by
this date, the deed of sale has lapsed and is of no force or effect.
As
I have already mentioned, applicant now seeks a temporary interdict
restraining respondents from alienating or transferring
the
property, pending the resolution of legal proceedings for
declaratory relief confirming the validity of the deed of sale.
As
further indicated earlier, applicant in its notice of motion also
asks for the interdict to be operative pending the final
determination of an application for the amendment of the
subdivision condition that the dwelling units to be constructed
on the property, should be single storey buildings.
Mr
Van
der Merwe
.
for applicant, has, In my view correctly, conceded that this latter
part of the relief sought is superfluous and he has not
persisted
therewith. The granting of such relief would in my view be
tantamount to the granting of final and decisive relief
on the issue
of the validity of the deed of sale and thus result in the granting
of a final interdict.
It
accordingly has to be determined whether applicant has satisfied the
requirements for the granting of the interim interdict
which it
seeks. The well-known requirements for the grant of an interim
interdict are, firstly, a clear right or a right
prima
facie
established,
though open to some doubt; secondly, a well-grounded apprehension of
irreparable harm if interim relief is not granted
and applicant
succeeds in establishing its right; thirdly, that the balance of
convenience favours the granting of interim relief,
and, fourthly,
the absence of any other satisfactory remedy.
These
factors are not considered separately or in isolation, but in
conjunction with one another in the determination of whether
a Court
should exercise its overriding discretion in favour of the grant of
interim relief. The proper approach is to take the
facts set out by
applicant, together with any facts set out by respondents, which
applicant cannot dispute, and to consider whether
having regard to
the inherent probabilities, applicant should, not could, on those
facts obtain final relief at the trial.
The
requirement of a right
prima
facie
established,
though open to some doubt, involves two enquiries. Firstly, the
prima
facie
right
has to be assessed and once that has been done, a further enquiry
follows in terms of which the Court looks at the facts
set out by
respondent in contradiction of applicant's case, in order to see
whether serious doubt is thrown on applicant's case.
If there is a
mere contradiction or unconvincing explanation by respondent, then
the
prima
facie
right
will be protected. Where, however, serious doubt is cast on
applicants case, the applicant cannot succeed. See
Spur
Steak Ranches Limited vs Saddles Steak Ranch
1996(3) SA 706 (C), at 714 G-H.
Applicant's
case is that the complete approval by the local authority of plans
for the construction of a pair of double storey
dwelling units on
the property, involves the following: Firstly, the approval of the
plans by the Heritage Section of the local
authority; secondly, an
amendment or removal of the condition of sub-division restricting
the construction of dwelling units
on the property to single storey
only, and thirdly, the approval of the plans by a number of
departments of the local authority.
It
is common cause that subsequent to the conclusion of the deed of
sale the plans were approved by the Heritage Section of the
local
authority on 3 January 2007. It is further common cause that the
power of attorney granted by first respondent for the
removal or
amendment of the aforesaid condition or sub-division, was signed on
4 June 2007. According to Mr Hart, an experienced
architect who
prepared the application for an amendment of the said condition of
sub-division, a reasonable period for consideration
of such an
application would be twelve to eighteen months, provided that there
were no unusual delays occasioned by the conduct
of any of the
parties to the process. In his opinion the period would furthermore
depend on whether objections or subsequent
appeals were noted
against the local authority's decision.
In
view thereof, applicant contends that a reasonable period has not
yet elapsed for fulfilment of the suspensive condition in
clause 14
of the deed of sale, and that the sale is accordingly still valid
and enforceable. Applicant also maintains that in
determining
whether a reasonable time has elapsed, it should be borne in mind
that the delays which have been experienced in
the process were as a
result of first respondent's conduct. It should be noted that
respondents do not contend that the suspensive
condition contained
in clause 14 of the deed of sale had to be fulfilled within a
reasonable time, nor that a reasonable period
of time has lapsed;
what they do contend is that upon a proper interpretation of the
deed of sale, viewed against the background
circumstances giving
rise to the conclusion thereof, the date for fulfilment of the
suspensive condition was 1 July 2006. To
this end respondents
contend that it was not in the contemplation of the parties that the
sub-division condition relating to
the property, was required to be
removed to enable applicant's building plans to be approved.
In
evaluating respondents' case in the process of determining whether
it casts serious doubt upon applicant's case it is necessary
to
interpret the relevant provisions of the deed of sale. As explained
in
Coopers
and Lvbrand v Bryant
1995(3) SA 761 (A) at 767 F to 768 F
r
the intention of the parties to a contract is to be determined by
applying the golden rule of interpretation, ie by giving the
language used in the document its grammatical and ordinary meaning,
unless this would resuEt in some absurdity or some repugnancy
or
inconsistency with the rest of the document.
A
particular clause, phrase or word should, however, not be
interpreted in isolation, but within the context in which it is used
in the contract as a whole. The Court should also, broadly speaking,
have regard to the background circumstances which explain
the
genesis and purpose of the contract.
In
my view the language used by the parties En clauses 5 and 14, if
interpreted against the backdrop of the deed of sale as a
whofe, is
unambiguous and conveys an unequivocal and clear intention. As was
the case in
Uitenhage
Transitional Local Council v S A Revenue Service
2004(1} SA 292 (SCA) at 304 G, I have difficulty in accepting, given
the unequivocal intention which the language used by the
parties
conveys, that the background facts upon which respondents seek to
rely can, in the absence of a claim for rectification,
change or
supplement the plain meaning of clauses 5 and 14. In my opinion
there is no room on the clear wording of the deed of
sale for an
interpretation that the parties intended the suspensive condition in
clause 14 to be fulfilled by the date inserted
in clause 5, namely 1
July 2006. This construction is directly contradicted by clause 14
itself, which contains no date for fulfilment.
As submitted on
behalf of applicant, if the parties intended that 1 July 2006 should
be the date for fulfilment of clause
14, it wouEd have been a
manifestly simple formality to have included the date in express
terms, as the date by which the suspensive
condition was required to
be fulfilled.
First
respondent's construction by incorporating the date for transfer,
i.e. 1 July 2006 in clause 5, as the date for the fulfillment
of the
suspensive condition in clause 14, renders the words "subject
to compliance with clause 14" in clause 5, entirely
superfluous
and meaningless.
It
is En any event clear to me that upon a proper interpretation of
clause 5, seen against the backdrop of clause 14, and within
the
context of the deed of sale as a whole, the date in clause 5 was
only intended to be the envisaged date of transfer. In my
view the
phrase "subject to compliance with clause 14" inserted in
clause 5, means no more than if the complete approval
of the plans
as envisaged by clause 14, takes place timeously
T
then transfer of the property, in terms of the deed of sale will be
effected on 1 July 2006.
It
does not mean, as suggested by respondents, that unless such
approval is obtained prior to 1 July 2006, the deed of sale will
become ineffective and no transfer will take place. See
Premier
Eastern
Cape and Another v Sekeleni
2003(4) SA 369 (SCA) at 375 G.
The
subsequent conduct of first respondent is also irreconcilable with
the interpretation which she now espouses. Nearly a year
after 1
July 2006, ie the date upon which she now suggests that the deed of
sale became inoperative, she wrote the following
letter to
applicant's attorneys; it is dated 4 June 2007 and reads as follows;
"As
requested I attach the signed Power of Attorney to enable your
clients to make the necessary application to obtain the
removal of
the restriction against the construction of a double storey dwelling
on the site. I wish to reiterate that I am against
the proposal of
the Sectional Title Scheme. The suspensive condition in the
agreement has no time limit; I believe a reasonable
period in which
to obtain approval of plans would be six months. I accordingly
herewith give notice that if the suspensive condition
is not met by
5 December 2007 the agreement will lapse."
The
Power of Attorney referred to in the letter was also dated 4 June
2007
r
and in it first respondent, as the registered owner of the property,
authorised the necessary steps to be taken for the removal
of
restrictions for the construction of two double storey dwellings on
the property. If the parties did intend 1 July 2006 to
be the date
upon which the suspensive condition in clause 14 had to be
fulfilled, it is inconceivable that first respondent would
not have
relied on the non-fulfilment thereof when requested to sign this
power of attorney.
In
the ultimate paragraph of her said letter, first respondent in fact
contends that the suspensive condition had to be fulfil
led within a
reasonable time, and that a reasonable time would lapse within six
months of 4 June 2007. This is a unilateral and
entirely subjective
determination of the period which would be reasonable for fulfilment
of the suspensive condition in clause
14 of the deed of saEe. No
objective grounds or evidence are put forward to justify her
unsubstantiated statement in this regard.
In
any
event, as I have already indicated, first respondent's case as set
forth in the opposing affidavit, is not that the deed of
sale failed
by virtue of the suspensive condition not having been fulfilled
within a reasonable time. It follows, in my view,
that the deed of
sale is clear and unambiguous, namely that the suspensive condition
in ciause 14 had to be fulfilled within
a reasonable time.
L
am
also satisfied that applicant has convincingly demonstrated that a
reasonable time for the fulfilment thereof has not yet lapsed.
In
view of my aforesaid findings, I do not consider it to be necessary
to deal with the application to strike out certain portions
of first
respondent's answering affidavit, it may be that certain averments
are liable to be struck out, but even if these allegations
are to be
retained as part of the background circumstances, same do not, in my
opinion, change or supplement the plain meaning
of clause 14, read
with clause 5 and the rest of the relevant provisions of the deed of
saie.
It
follows, in my view, that applicant has clearly established the
right which it seeks to protect by means of the order sought.
Even
if it may be said that this right has only
prima
facie
been
established, I am satisfied that the facts set out by first
respondent do not throw serious doubt on applicant's case. Insofar
as it may be necessary for applicant to show a well grounded
apprehension of irreparable harm, the insistence of respondents
to
proceed with the sale and transfer of the property to Eloff, will
obviously cause applicant irreparable harm if interim relief
is not
granted.
This
brings me to the requirement of balance of convenience. It involves
the exercise of a discretion which usually resolves itself
into a
consideration of the prospects of success of an applicant in the
main case. The stronger the prospects of success, the
less the need
for such balance to favour the applicant. The weaker the prospects
of success, the greater the need for it to favour
the applicant. See
Erikson
Motors Limited v Protea Motors and Another
1973(3) SA 685 (A) at 691 F.
Without
attempting to prejudge the issues which will be debated in future
litigation between the parties, I hold the view, particularly
on the
clear wording of the deed of sale, that applicant should obtain
final relief at the trial. It accordingly follows that
the balance
of convenience favours the granting of interim relief. I am also of
the opinion that in view of first respondent's
declared intention to
transfer the property to Dr Eloff, applicant will effectively be
left without a suitable alternative remedy
if interim relief is
refused. First respondent's alleged impecuniosity would also render
any future claim for damages rather
ineffective.
In
the circumstances I am satisfied that applicant should be granted
interim relief. As to costs, I intend following the usual
practice
in this regard, namely that costs are to stand over for
determination by the trial court. I should add that no costs
order
is made in regard to the striking out application of applicant.
In
the result the following order is made:
i.
First
respondent is interdicted and prohibited from transferring or
alienating the immovable property,
Erf 171173, Cape Town
r
situate at Riverstone Road, Wynberg, Western Cape, pending the
final
determination of an action to be instituted by applicant
against first respondent within 20 court
days of the grant of
this order, for declaratory relief,
inter
alia
declaring
the deed of sale in
respect of the property concluded between
applicant and first respondent on 31 March 2006, to be valid and of
full force and effect;
ii.
Second
respondent is interdicted and prohibited from passing transfer of
the property, pending the final determination of the
action referred
to in paragraph (i) above.
iii.
The
costs of this application are to stand over for determination in the
action referred to in paragraph (i) above.
FOURIE,
J