Loots and Other V Rojen CC (1962/2007) [2007] ZAWCHC 47 (31 August 2007)

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[2007] ZAWCHC 47
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Loots and Other V Rojen CC (1962/2007) [2007] ZAWCHC 47 (31 August 2007)

Republic of South Africa
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE
No: 1962/2007
In
the matter between:
ANDRIES
LODEWYK LOOTS First Applicant
ANTOINETTE
LOOTS Second Applicant
and
ROJEN
CC Respondent
_____________________________________________________________________
JUDGMENT DELIVERED : 31 AUGUST 2007
________________________________________________________________________
MOOSA, J:
This is the return date of a Rule
nisi
granted for specific
performance arising from and in terms of a Deed of Sale entered into
between the parties, dated 7 February
2005 (“Deed of Sale”)
and for ancillary relief. The final order is opposed by the
respondent who is the seller in terms of
the Deed of Sale. The
respondent opposed the application on the basis that the Deed of
Sale has lapsed by virtue of the fact that
the suspensive condition
contained in clause 12.1 thereof has not been fulfilled or is
incapable of fulfilment. The applicants,
on the other hand, deny
the allegations of respondent and contend that the suspensive
condition has been complied with, in that
the necessary approvals
for subdivision have been obtained.
Clause 12.1 of the Deed of Sale referring to the suspensive
condition, reads as follows:
“
This offer to purchase is subject to the successful
sub-division of Erf 1999 Swellendam by the relevant authorities
provided that
it will not be subject to any access servitude or right
of way in favour of Portion A as indicated on the attached diagram.”
The effect of the suspensive condition is that the
property had to be subdivided in such a manner as to avoid the
remainder
of the property being subject to an access servitude or
right of way in favour of Portion “A”.
The facts that are relevant to the resolution of this matter are
either common cause or undisputed and are as follows:
3.1 Pieter Theodorus Houterman (“Houterman”) of Bekker &
Houteman, a firm of land surveyors, was appointed by respondent
to
attend to the proposed subdivision. When the Deed of Sale was
concluded the subdivision process was already well advanced;
3.2
The consent of the South African National Roads Agency Limited
(“SANRAL”) and the Municipality of Swellendam was required
for
the subdivision of the property. On 27 February 2005, Houterman
submitted the subdivision application to SANRAL for approval.
On 26
May 2005 SANRAL indicated in writing to Houterman that it had no
objection, in principle, to the subdivision, but had reservations
with regard to access and requested a plan for consolidating of the
access points;
3.3
In order to discuss SANRAL’s reservation and request for an
access plan, a site meeting was held between Houterman and
two
representatives of SANRAL. It was agreed between the parties that
the existing gate of Bontebok National Park (“Park”) would
be
moved to the boundary between respondent’s property and the Park’s
property, thus giving access to both portion “A” of
respondent’s
property and the Park’s property. The remainder of the property
would have its own existing access;
3.4 On 29 September 2005 SANRAL, in writing to Houterman,
approved the subdivision. In granting such approval, it mistakenly
referred to
“Access to the remainder of Erf 1999 and Portion A”
.
This error was rectified by SANRAL by substituting the earlier
written approval by a subsequent approval dated 29 November 2005;
3.5
On 27 October 2005, respondent informed Houterman in writing:
“Due to recent developments we hereby request you to stop all
proceedings relating to Erf 1999 Swellendam with immediate effect.

You will be notified at later stage of our intentions”;
3.6 On 26 January 2006 the Swellendam Municipality
(“Municipality”) approved the subdivision of Erf 1999 in terms of
Section
25 of the Land Use Planning Ordinance, 15 of 1985 (“Lupo”);
3.7 On 2 March 2006, the applicants rejected the alleged
repudiation of the sale by respondent, tendered due performance in
terms of the Deed of Sale and called for specific performance,
failing which action is to be instituted. Respondent responded by
telefax the next day to the following effect:
“Please be
advised that we shall not be signing any transfer papers and should
you wish to take the matter further, please feel
free to do so”
.
Adv
Van Zyl
, on behalf of the respondent, submitted that
there are various factual disputes between the parties which cannot
be resolved on
the papers. The applicants, so it was argued, should
have pursued their claim for specific performance by way of action
and not
by way of motion proceedings. She relied on the case of
Room Hire Co (Pty) Ltd v Jeppe Mansions (Pty) Ltd
1949 (3) SA
115
(D) at 116 for her argument. In that case the court sets out
the course of action open to it when disputes of facts arise in
motion
proceedings that are not capable of resolution on the papers.
I am not persuaded that there are genuine disputes of fact that
entitle this court to exercise its discretion, in terms of Rule
6(5)(g) of the Uniform Rules of Court, either to dismiss the
application, or to refer the matter for oral evidence or for trial.

I am of the view that the matter is capable of resolution on the
facts which are common cause and undisputed. To me it is quite
clear that the respondent raised spurious disputes and defences to
get out of the Deed of Sale. The respondent has not denied
applicants’ allegation that respondent can now obtain a much
higher price for the property sold to the applicants and that
respondent
therefore no longer wishes to proceed with the sale.
Respondent alleges further that it is not
“refusing to
co-operate in order to finalise the sub-division – the fact is
that the property cannot be sub-divided as contemplated
in the
agreement, that is, without providing a servitude right of access
over the remainder in favour of portion A. The respondent
is,
therefore, unable to pass transfer of the remainder to the
applicant”.
This allegation is not only without merit, but is
palpably false. It is quite clear from the conduct of the
respondent that it
tried to raise all sorts of technical issues and
excuses to forestall the approval of the subdivision of the
property. Houterman,
in his supporting affidavit dated 8 June 2007,
in the last paragraph of clause 22 says the following:
“
Ek wil graag onderstreep dat ek deur
respondent aangestel en dat ek geen belang het by die uitkoms van
hierdie aansoek nie. Ek staan
objektief in hierdie aansoek, maar kan
dit werklik onder die hof se aandag bring dat die respondent nie net
weier om samewerking
te verleen nie, maar blatant aggressief is en
reeds gedreig het om my te skiet as ek die persele betree.”
These allegations have not been countenanced by respondent either in
the form of an affidavit or through the Bar by its counsel.
The
veracity thereof is therefore accepted by the court. There is no
reason, in my view, for Houterman to perjure himself in
respect
thereof. The court takes a very dim view of the threats. We are
living in a civilised country with one of the best Constitutions
in
the world. Moreover, Jacobus van der Walt (“Van der Walt”) the
regional manager of SANRAL, denied respondent’s allegation
that
the subdivision was based on incorrect information furnished by
Houterman. He confirmed that the approval to the subdivision
was
granted following a site inspection and after the requirement for
the line of vision was relaxed. I quote from para 2 and
3 of his
Supplementary Affidavit, dated 17 August 2007:
“
Ek het die ondersteunende eedsverklaring van
mnr Petrus Theodorus Houterman gelees en bevestig die inhoud daarvan
soos dit op my betrekking
het. Ek wil spesifiek bevestig dat die
goedkeuring geskied het nadat ʼn terrein inspeksie deur myself en mnr
Brink van ons kantore,
vergesel van mnr Houterman, plaasgevind het.
Hierdie goedkeuring het geskied afgaande (sic) op waarneming wat
tydens die veldvergadering
gedoen is en het ons die siglyn verslap na
in ag neming van die relevante faktore.
Daar is besluit om die ou parkeraad hek te skuif na die grens van
gedeelte A en was SANRAL se besluit om die onderverdeling goed te
keur beslis nie baseer op verkeerde informasie en inligting ontvang
van mnr Houterman nie.”
On a very close scrutiny of the facts in issue, I conclude that
there are no real genuine or
bona fide
disputes of fact that
prevents this court from resolving the issues without the aid of
oral evidence. (
Plascon-Evans Paints Ltd
v Van Riebeeck
Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-

to 635A-C.) I am satisfied of the inherent veracity of the
applicant’s factual averments. In my view the probabilities are
overwhelming in favour of the factual finding that the suspensive
conditions as contained in clause 12.1 of the Deed of Sale has
been
complied with. In view of my findings, it is unnecessary to deal
with the two further issues raised by applicants, namely,
the
question of warranty and the question of fictional fulfilment.
I now turn to the question of costs. In the papers, applicants
asked for costs on the ordinary scale. During the course of
argument,
counsel for applicants asked that costs be awarded on an
attorney-client scale. In support thereof, applicants submit that
respondent
opposed the relief sought in bad faith and it was warned,
in a letter dated 1 August 2006, that if they are compelled to bring

this action, they will seek a costs order on an attorney-client
scale. The fact is that applicants did bring the application,
but
did not seek an order for costs on an attorney-client scale on the
papers. Adv
Kilian
, on behalf of applicants, submitted that
this court should exercise its discretion to order respondent to pay
punitive costs on
an attorney-client scale. Adv
Van Zyl
submitted that costs should follow the result and that there is no
reason to award punitive costs.
Recently our courts have been flooded with litigation where sellers
tried to renege on their agreement of sale because they could
obtain
a higher price for their property by virtue of the recent boom in
the property market. Our courts will not tolerate such
state of
affairs and will not hesitate to award punitive costs where the
circumstances justify such an award. I am tempted to
grant a
punitive costs order in view of the conduct of the respondent in
this matter. However, I have decided against it because
applicants
have not asked for such relief in the papers. In my view, it would
be unfair to saddle the respondent with such award
if they were not
granted an opportunity to respond thereto in the papers.
Applicants have prayed for the Rule
nisi
to be amended in
order to clarify the relief. In my view such amendment does not
prejudice the respondent and it is granted.
The final order in
terms of the amended Rule
nisi
is granted as follows:
That respondent be and is hereby directed to take all necessary
steps and to sign all necessary documents to finalise the
subdivision
application, as approved and to pass transfer of the
remainder of Erf 1999, Swellendam, Western Cape (as indicated on
the diagram
attached to the Notice of Motion marked “Y”) (“the
property”)) into applicants’ names, subject to payment by
applicants
of the full balance of the purchase price.
That, in the event that respondent refuses and/or fails to take the
aforesaid steps and/or to sign the aforesaid documents within
seven
(7) days of the granting of this order, the Sheriff of this
Honourable Court be and is authorised and directed to take
such
steps and/or sign such documents on its behalf.
That respondent be and is interdicted and restrained to sell the
property to any other purchaser and/or to pass transfer of the
property to any other purchaser.
That the Registrar of Deeds, Cape Town, be and is authorised to
register a
caveat
against the title deed of the property in
accordance with the terms hereof.
That respondent is directed and ordered to pay the costs of this
application.
……………………..
E MOOSA
AL Loots & Another v Rojen CC

Cont/…