Salomon Senekal Beleggings (Pty) Limited and Another v Gielie Niewoudt Promosies CC and Others (332/2003_ to 338/2004) [2004] ZAFSHC 48; ; (27 May 2004)

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[2004] ZAFSHC 48
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Salomon Senekal Beleggings (Pty) Limited and Another v Gielie Niewoudt Promosies CC and Others (332/2003_ to 338/2004) [2004] ZAFSHC 48; ; (27 May 2004)

IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case Nos.: 332/2004
to
338/2004
In the matter between:
SALOMON
SENEKAL BELEGGINGS (PTY)
Applicants
LIMITED
HOTEL MAHEM (PTY) LIMITED
And
GIELIE
NIEUWOUDT PROMOSIES CC
Respondents
AND OTHERS
_____________________________________________________________________
CORAM:
HANCKE,
J
_____________________________________________________________________
HEARD
ON:
20 MAY 2004
_____________________________________________________________________
DELIVERED
ON:
27 MAY 2004
_____________________________________________________________________
The applicants in this matter are Salomon Senekal
Beleggings (Pty) Ltd (the applicant under cases nos. 332/04, 333/04,
335/04, 336/04
and 337/04) and Hotel Mahem (Pty) Ltd (the applicant
under cases nos. 334/04 and 337/04). It is convenient to refer to
them as “the
applicant”, because the facts pertaining to all
seven applications are substantially similar and the determination of
any one of
them will determine the outcome of the remaining six.
Applicant, which is the registered and beneficial owner
of certain immovable commercial properties within Viljoenskroon, has
instituted
seven applications against,
inter
alia
, Gielie Nieuwoudt Promosies CC, the
first respondent in each of the applications. Only the first
respondent opposes the relief sought
by the applicant. Between March
2000 and September 2001 the applicant and first respondent concluded
three sets of sale agreements,
in terms of which the applicant sold
to the first respondent the abovementioned properties. Each of the
agreements contained a condition
that the purchase price was to be
paid by the first respondent furnishing the applicant with a bank
guarantee to secure payment of
the purchase price in full by a
specified date, failure to comply with this condition constituting a
breach which would entitle the
applicant, after giving notice, to
cancel the agreement.
In respect of four of the properties, the first
respondent took occupation thereof on 1 May 2000, and on 20 November
2000, the first
respondent took occupation of the fifth property. In
terms of the first and second set of agreements, occupation was to be
given
to the first respondent on 1 May 2000, the third set of
agreements providing that occupation was only to be given to the
first respondent
upon transfer.
It appears from the documents filed that the first
respondent breached the terms of all three sets of sale agreements in
that it failed
to deliver the requisite guarantee stipulated in each
of them. After giving notice in terms of clause 7 of the sale
agreement to
remedy the breaches of the third set of agreements, the
applicant on 21 August 2003, cancelled that set of agreements being
the set
of agreements in force at the time.
In the applications bearing numbers 333/04, 336/04 and
337/04 the applicant seeks to evict respondents (tenants in the
buildings erected
on the premises) from premises which are being used
by certain of them as a “dwelling or shelter”, as envisaged in
section 1
of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act, No. 19 of 1998 (the “Eviction Act”).
It is not disputed that the applicant has complied with
the relevant provisions of the Eviction Act for the purposes hereof.
Save
for the first respondent, the fourth respondent in case number
333/04 and the third respondent in case number 337/04, a tender has
been made by the applicant to all respondents in each application.
In the event of the tender being accepted and the terms of the
tender
having been complied with, the applicant has undertaken to withdraw
the application against the relevant respondent and not
to seek an
order for costs against such respondent. To put it another way, the
applicant has offered to conclude lease agreements
with all existing
tenants. The applicants tender in case number 332/04 has been
accepted and a lease agreement concluded with the
Department of
Public Works. Accordingly, the applicant seeks no relief against the
second respondent in the said application.
Despite
several defences raised in its opposing affidavit, Mr Van Rooyen,
counsel for the first respondent, in argument relied on
the following
three defences:
1. By virtue of the first respondent having affected
certain improvements to the properties, the applicant has been
enriched at the
expense of the first respondent, with the result that
it has a lien over each of the various properties, pending payment of
the value
of the improvements.
2. By virtue of an oral agreement allegedly concluded
between the applicant and the first respondent at a meeting held
during the
period March to April 2003, the first respondent claims
that it was not obliged to comply with the obligations in regard to
payment
(as opposed to the furnishing of guarantees, stipulated in
the third agreement). The first respondent alleges therefore that it
was
given an extension of time until the end of March 2004 to make
payment of the purchase prices for the properties. In the result
the
first respondent alleges that the applicant was not entitled to give
it notice on 1 August 2003 placing it in
mora
as it was not in breach of its obligations. In the circumstances the
first respondent avers that the third agreements has not been
cancelled validly by the applicant.
3. The applicant has lost its right to cancel due to the
fact that it has not exercised its right to cancel the agreement
within a
reasonable time.
It is therefore necessary to deal with these defences,
which I propose to do in the same sequence mentioned above.
1.
The respondents
alleged lien over the various properties
:
It is the first respondent’s case that it has effected
certain improvements to the property and that as a result thereof it
has
a lien over the property until such time as it has been paid the
value of the improvements, failing which the applicant would be
in
enriched at the expense of the first respondent. The applicant
denies these allegations, but has furnished the first respondent
with
guarantees in the aggregate sum of R749 175,80, representing the
total value of the alleged improvements effected to the property.
It
is furthermore alleged by the applicant that it is more than able to
pay any costs order made against it, in that it has sufficient
funds
at its disposal and that it is the registered owner of the properties
which form the subject matter of the various applications
herein,
which properties are unencumbered.
The owner of the property over which a right of
retention is exercised may defeat the lien by furnishing adequate
security. The furnishing
of a banker’s guarantee is a usual method
of furnishing security.
ZEDA, FINANCING
(PTY) LTD v DU TOIT T/A AMCO DIENSSTASIE
1992 (4) SA 157
(O);
HOCH METALS AFRICA
(PTY) LTD v OTAVI MINING CO. (PTY) LTD
1968 (1) SA 571
(A) at 582B-F.
A Court has a discretion whether to order restoration of
the property to its owner, in the event of adequate security having
been
put up, which discretion will be exercised having regard to what
is equitable in all the circumstances.
HOCH
METALS AFRICA
(
supra
)
at
528D
.
It appears to be equitable that the first respondent
should be ordered to restore the property to the applicant because it
is obvious
that the applicant has granted the first respondent every
form of indulgence imaginable to enable it to deliver guarantees in
accordance
with the third set of agreements. Furthermore, the
question whether or not the first respondent does enjoy an
improvement lien over
the property is in dispute. This can be
determined in due course and there appears to me to be no reason why
the applicant should
be deprived of occupation of its property in the
meantime. Consequently it is equitable that first respondent be
evicted from the
property even if the alleged improvements were
effected.
2.
The alleged oral
agreement
:
The first respondent alleges that pursuant to and as a
consequence of the conclusion of an oral agreement in March/April
2003. Accordingly,
performance by the first respondent was postponed
for a year. The first respondent was not obliged to effect delivery
of the guarantee
and as a result the applicant’s letters of 1
August 2003 and 21 August 2003 were of no force and effect. In view
of the applicant’s
denial of the alleged oral agreement, a dispute
of fact has arisen in this respect. Neither party asked that the
matter be referred
for evidence or trial and it is therefore
necessary to deal with the application on the undisputed facts and
the balance of probabilities.
DECRO PAINT
AND HARDWARE (PTY) LTD v PLASCON-EVANS PAINTS (TVL) LTD
1982 (4) SA 213
(O) at 222E – 223H.
It appears from the papers that the first respondent
raised the existence of the oral agreement for the first time in its
answering
affidavit. Prior to the delivery of the answering
affidavit there has never been a suggestion or even a hint in any of
the documents
or telephone conversations that such an agreement had
been concluded. Indeed, the documents, and a conversation between
the attorneys
representing the parties, all point conclusively to the
fact that no such an agreement was concluded. All letters written by
both
parties’ legal representatives are inconsistent and
irreconcilable with the conclusion of the alleged oral agreement upon
which
the first respondent now relies. For example, in their letter
dated 7 July 2003 the first respondent’s attorney seek indulgences
from the applicant because of the “geweldige resessie” in the
area. They propose that the first respondent take transfer of
two of
the properties “binne die volgende maand of twee” and postponing
further the obligations to deliver guarantees and to
take transfer of
the other properties. This is entirely inconsistent with the alleged
oral agreement. If it had been concluded,
the first respondent would
only have been obliged to make payment or to deliver guarantees by
the end of March 2004. It would have
been entitled to transfer upon
making such payment and paying costs of transfer.
On 5 September 2003 the first respondent’s attorneys
wrote to the applicant’s attorneys tendering, on first respondent’s
behalf,
to make payment for, and to take transfer of erf 161 (case
number 335/04). This is referred to specifically in the first
respondent’s
answering affidavit wherein the deponent to the
affidavit merely states that the letter was written. He continues
that he wishes
to draw the attention of the Court to the fact that
the first respondent wished to take transfer of the property
concerned. Once
again, what is stated in this letter and the
answering affidavit are entirely inconsistent with the conclusion of
the oral agreement
which the first respondent contends for. There is
no explanation in the papers given for this contradiction.
On 18 September 2003 the first respondent’s attorneys
wrote to the applicant’s attorneys tendering to make transfer of
the Magistrate’s
Court property (case number 332/04) which once
again is inconsistent with the conclusion of the alleged oral
agreement.
On 1 October 2003 the applicant’s attorney, and the
first respondent’s attorney, spoke telephonically. During the
course of
that conversation the first respondent’s attorney made an
offer which, once again, is inconsistent with the alleged oral
agreement.
It appears from the first respondent’s attorney’s
note that a proposal was made that immediate transfer be taken of the
first
three properties and that the remaining two be transferred “oor
‘n jaar”. This offer is entirely inconsistent with the alleged
oral agreement. It is important to note that the first respondent
makes no attempt whatsoever to explain the inconsistencies. The
first respondent’s allegation of an oral agreement is in the
circumstances so implausible and improbable that it can be rejected
on affidavit, without the need for oral evidence.
PIETERSEN
v CUTHBERT AND CO LTD
1945 AD 420
at
425 and 427-8.
There appears to be no explanation furnished by the
respondent as to why the existence of the oral agreement was not
raised earlier.
It is fundamental to its defence to the applications
and it is inconceivable that it would not have been relied upon in
the correspondence
and negotiations which took place after it had
allegedly been concluded.
Having regard to the circumstances of this case, I am
satisfied that
viva voce
evidence will not disturb the balance of probabilities.
SEWMUNGAL
AND ANOTHER NNO v REGENT CINEMA
1977
(1) SA 814
(N) at 821B-C;
WIESE v
JOUBERT
1983 (4) SA 182
(O) at 203
.
Mr Hoffman, counsel for the applicant, submitted in the
alternative that the alleged oral agreement constitutes a “variation”
of the provisions of paragraph 1 of the third agreement. As the
variation is not contained in a written document signed by both
parties, it is void in that it does not comply with the provisions of
section 2(1) of the Land Act. He also submitted that the oral
agreement, had it been concluded, would be void for vagueness in that
it is impossible to ascertain from the terms of the oral agreement
when the purchase price for the property was to be paid, or whether
the first respondent was obliged to have paid the remaining purchase
prices for all the properties in full and have taken transfer by the
unspecified date referred to in the opposing affidavit, or whether
the obligation to take transfer was delayed for a time thereafter, in
accordance with the third agreement, and if so, until when.
He also
submitted that in so far as the oral agreement was concluded, such
agreement would in any event amount to a material variation
of the
third agreement which must be in writing and signed by the parties
before the first respondent can rely on it. There appears
to be
substance in this argument but, in view of the conclusion reached by
me, it is not necessary to deal with these submissions.
3.
Has the applicant
lost its right to cancel due to the lapse of time?
Mr Van Rooyen, on behalf of the first respondent,
submitted that the applicant has not exercised its right to cancel
the agreement
within a reasonable time and that the purported
cancellation was of no legal effect.
It is important to have regard to the events that took
place before the purported cancellation of the contract by the
applicant.
The third agreement was concluded on 26 September 2001.
In terms of clause 1 thereof, the first respondent was obliged to
deliver
a bank guarantee within 30 days after signing of the
contract, which 30 days expired on 27 October 2001. On 22 November
2001 the
applicant’s former attorneys made enquiries in respect of
the delivery of the guarantees. In another letter by the applicant’s
attorneys dated 21 December 2001, the first respondent is requested
to deliver the said guarantees on or before 3 January 2002 “by
gebreke waarvan ons verplig sal wees om in terme van die koopkontrak
hul regte af te dwing.”
The next letter addressed to the first respondent is
dated 21 August 2002. Paragrapgh 6 thereof reads as follows:
“We are instructed to demand that you produce a bankers guarantee
in terms of the agreement as referred to above, guaranteeing
payment
in the amount of R535 800,00 and that the same is delivered to their
offices within 7 days after the date of receipt by
you of this
letter. Should you not comply with this demand timeously our client
will then make an election as to whether or not
to cancel the
agreement and appropriate further legal action will be taken
immediately thereafter without any further notice to you.”
In response to the letter the first respondent’s
attorney wrote a letter dated 7 July 2003. Paragraph 2 thereof reads
as follows:
“Ons kliënt voorsien dat hy binne die volgende maand of twee
reëlings kan tref om waarborge aan u kliënt te lewer ten opsigte
van erwe 46 en 161, Viljoenskroon. In die lig van die huidige
ekonomiese toestand in Viljoenskroon wil ons kliënt verder uitstel
hê om waarborge te lewer en transport te neem van die ander
eiendomme wat hy by u kliënt gekoop het.”
Thereafter, on 1 August 2003, the applicant’s present
attorneys wrote two letters, the one addressed to the first
respondent’s
attorneys and the other addressed to the first
respondent. The last mentioned letter,
inter
alia
, reads as follows:
“We are instructed to demand, as we hereby do, that you furnish the
required bank guarantee in terms of the agreement to our client
c/o
our offices within 7 days. Should you fail to remedy your breach and
not to deliver the guarantee, our client will exercise its
rights in
terms of clause 7 of the agreement of sale dated 26 September 2001.”
It is the applicant’s case that despite delivery of
the said letter, the first respondent has failed to effect delivery
of the guarantee.
As a result thereof, on 21 August 2003, the
applicant cancelled the third agreement in accordance with the
provisions of clause
7 thereof.
In view of the aforesaid delay in making an election to
cancel, Mr Van Rooyen, counsel for the applicant, submitted that the
applicant’s
right to cancel has lapsed. In this regard he relied
on the case of
NORTH VAAL MINERAL CO. LTD
v LOVASZ
1961 (3) SA 604
(T)
,
where Jansen, J (as he then was) stated the following on
611H-612A
:
“On the authority of
Voet
and
Schuurman v. Davey
,
supra
, however, I incline to the view that a lapse of a
reasonable time after accrual of a right of cancellation in terms of
a
lex commissoria
(in the wide sense)
per se
destroys
the right, i.e. unless the party entitled elects to rescind within a
reasonable time, the right lapses.”
(Cf.
SCHUURMAN v DAVEY
1908 TS 665
te 672)
.
In
SEGAL v MAZZUR
1920 CPD 634
the following is stated on
644-5
:
“Now, when an event occurs which entitles one party to a contract
to refuse to carry out his part of the contract, that party has
the
choice of two courses. He can either elect to take advantage of the
event or he can elect not to do so. He is entitled to a
reasonable
time in which to make up his mind, but when once he has made his
election he is bound by that election and cannot afterwards
change
his mind. Whether he has made an election one way or the other is a
question of fact to be decided by the evidence. If,
with knowledge
of the breach, he does an unequivocal act which necessarily implies
that he has made his election one way, he will
be held to have made
his election that way; this is, however, not a rule of law, but a
necessary inference of fact from his conduct
….. As already stated,
the question whether a party has elected not to take advantage of a
breach is a question of fact to be decided
on the evidence, but it
may be that he has done an act which, though not necessarily
conclusive proof that he has elected to overlook
the breach, is of
such a character as to lead the other party to believe that he has
elected to condone the breach, and the other
party may have acted on
such belief. In such a case an estoppel by conduct arises and the
party entitled to elect is not allowed
to say that he did not condone
the breach.”
As far as the “doctrine of election” is concerned,
the following is stated in
The Law of
Contract in South Africa
(4
th
ed.) by R.H. Christie on p.627:
“It is not a mechanical rule of law but a combination of waiver and
estoppel – the
onus
is on the defendant to prove that, as a
question of fact, the plaintiff has waived the relief he claims or,
failing such proof, that
he is estopped from claiming it –
reinforced by a logical bar to claiming inconsistent remedies, but
only if the claims are truly
inconsistent. ….
The
necessity to elect within a reasonable time must be looked at in the
same way. The law lays down no time, and it is for the defendant
to
show that the delay has been such as to prove the plaintiff’s
waiver
of his right to cancel for the breach or repudiation,
or such as to induce the defendant to commit himself to further
performance,
so raising an
estoppel
.”
The case of
MAHABEER v SHARMA
NO AND ANOTHER
1985 (3) SA 728
(A)
puts the legal question in this respect beyond doubt. In this case
the first respondent sent a letter dated 14 August 1980 to the
appellant, which letter evinced a clear election on her part to
cancel the agreement in the event of his failure to comply with the
demand made therein. Thereafter he received no further communication
until February 1981 when his attorney was informed that the
sale had
been cancelled and the property resold to the second respondent. The
Court was concerned with the effect of first respondent’s
failure
until February 1981, i.e. a delay of about six months, to notify
appellant of the cancellation. Hefer, JA stated the following
on
p.735J – 736 I:
“Appellant’s counsel submitted that this lapse of time (which he
maintained was unreasonably long) brought about
per se
that
the agreement was never effectively cancelled for, so the argument
went, a right to cancel lapses unless it is exercised by
informing
the guilty party of the cancellation within a reasonable time. This
submission cannot be upheld. A similar proposition
was rejected by
this Court in
Potgieter and Another v Van der Merwe
1949 (1) SA 361
(A) at 371-2 where Pollock’s statement in his
Principles of Contract
8
th
ed at 618 that
“omission to repudiate within a reasonable time is evidence, and
may be conclusive evidence, of an election to affirm the contract;
and this is in truth the only effect of lapse of time”
was accepted as correct. Unless it is read in context this statement
and particularly the description of the evidential effect of
the
lapse of time as its only effect, may be debatable (
cf
the
remarks of Jansen J (as he then was) in
North Vaal Mineral Co
Ltd v Lovasz
1961 (3) SA 604
(T) at 612). …. Apart from
the law relating to prescription, there is no principle of South
African law of which I am aware that
justifies a conclusion that a
right may be lost through mere delay to enforce it and no reason
exists for holding otherwise in the
case of the right to cancel an
agreement.
It is
often said (usually on the authority of Voet
Commentarius Ad
Pandectas
18.3.2) that the right to cancel an agreement must be
exercised within a reasonable time. I have no quarrel with that
statement
– as far as it goes. But it does not follow that failure
to exercise the right within such a time results
ipso iure
in
its loss. In
Potgieter’s
case
supra
this
Court also approved in the present context of a passage which appears
in
Pollock
at 629 to the effect that
“the contract must be rescinded within a reasonable time, that is,
before the lapse of a time after the true state of things is
known,
so long that under the circumstances of the particular case the other
party may fairly infer that right of rescission is waived”,
which puts failure to exercise the right to cancel within a
reasonable time in its true perspective. Depending on the
circumstances,
such a failure may, eg, justify an inference that the
right was waived or, stated differently, that the party entitled to
cancel
has elected not to do so …… In such cases the lapse of an
unreasonably long time forms part of the material which is taken into
account in order to decide whether the party entitled to cancel
should or should not be permitted to assert his right. But
per se
it cannot bring about the loss of the right.”
From the authorities quoted above it is clear that a
right to cancel a contract is not lost through mere delay in
enforcing it. Although
such right must be exercised in a reasonable
time, failure to do so does not result
ipso
iure
in the loss of the right. Such failure
may, depending on the circumstances of the case, justify an inference
that the applicant
has elected not to do so. The delay is part of
the material to be taken into account in deciding whether such party
should or should
not be permitted to assert his right.
MAHABEER
(
supra
) at
736H-I
.
From the facts in the present matter it is clear that
the applicant gave every possible indulgence to the first
respondent to
enable it to furnish the said guarantees. It,
however, never suggested that it will not cancel the agreement. The
first respondent
on numerous occasions requested the applicant for
more time to enable the first respondent to perform. It is important
to note that
five different properties were involved and that the
transportation of the properties were interlinked with each other.
The applicant
was entitled to suspend its decision to cancel the
agreement, or not, without forfeiting its right of choice.
TRYTSMAN
v DOHNE
1951 (1) SA 736
(N) at 740A-B
.
As far as
estoppel
is
concerned, it was never raised by the first respondent in its
opposing affidavit, nor could it reasonably be inferred from the
facts. The same applies to
waiver
– on the evidence the first respondent could not fairly have
inferred that the applicant had waived its right to cancel.
It follows that the applicant has validly cancelled the
agreement between the parties and that it is entitled to the relief
claimed.
4.
Costs:
Mr Hoffman, on behalf of the applicant, submitted that
the first respondent’s conduct was vexatious and that the applicant
was therefore
entitled to costs on an attorney and client scale.
It is trite law that a Court will grant such an order
only in exceptional circumstances where special grounds are present.
The Law of South Africa
1
st
re-issue Vol.3
part 2, paragraph 321. I am of the view that such circumstances do
not exist in the present matter and that the applicant
is only
entitled to costs on a party and party scale.
Mr Hoffman also applied for the costs of two counsel.
Having regard to the factual and legal difficulties involved in the
present
matter, I am of the view that the engagement of two counsel
is warranted.
The Law of South Africa
op cit
paragraph 418.
As for the costs of 11 March 2004, which was reserved, it appears
that the applicant enrolled the matter without
notice to the first
respondent. From the papers it is clear that it was desirable that
all the applications should be heard at the
same time and that
applicant was not entitled to enrol the matter without notice to the
first respondent. The first respondent is
therefore entitled to the
wasted costs incurred on 11 March 2004.
It
follows, from the aforegoing, that the applicant is entitled to an
order declaring that the agreement between the parties has been
validly cancelled, as well as an order for ejectment.
CONSEQUENTLY
the following
orders are issued
1. An
order in terms of Annexure “A” hereto.
2. As
for costs –
(a) Applicant is ordered to pay the first respondent’s
wasted costs incurred on 11 March 2004.
(b) Apart from (a), first respondent is ordered to pay
the costs of all the applications, including the costs consequent
upon the
employment of two counsel.
_________________
S.P.B.
HANCKE, J
On behalf of Applicant:
Adv.
G.I. Hoffman SC
Assisted by:
Adv.
A.J. Eyles
Instructed
by
Webbers
Bloemfontein
Cliffe
Dekker Inc.
Johannesburg
On behalf of First Respondent:
Adv.
P.C.F. van Rooyen
Instructed by
Naudes
Bloemfontein
/scd
ANNEXURE “A”
Case No. 332/04
1. The written sale agreement concluded between the
applicant
and the first respondent on or about 26 September 2001
has been validly cancelled.
2. That the first and second respondents together with
any other person that may occupy the buildings situated at 21
Engelbrecht Street,
Viljoenskroon under or through them, and/or by
virtue of the first and second respondent’s occupation thereof:
2.1 vacate the said property within one (1) month from
date of service of this order upon the first and second respondents;
and
2.2 deliver
up to the applicant all keys to the property that they first
respondent may have in its possession or under its control.
3. In the event that the first respondent and/or any
persons occupying through or under it, fail to vacate the said
property within
a month from date of service of this order upon them,
authorising the sheriff of this Court to evict the first respondent
and/or
any persons occupying through or under them, from the property
on a date not being less than one month from the date of service of
this order upon them.
Case No. 333/04
1. The written sale agreement concluded between the
applicant and the first respondent on or about 26 September 2001 has
been validly
cancelled.
2. That
the first, second, third, fourth, fifth and sixth respondents,
together with any other person that may occupy the building
situated
at 32 Piet Retief Street, Viljoenskroon, including shops nos. 1 to 4
within the said building, under or through them, and/or
by virtue of
the first to sixth respondents’ occupation thereof.
2.1 vacate the said property within a period of one (1)
month from date of service of this order upon first to sixth
respondents;
and
2.2 deliver
up to the applicant all keys to the property that the first to sixth
respondents may have in their possession or under
their control.
3. In the event that the first to sixth respondents
and/or any persons occupying through or under them, fail to vacate
the said property
within the period of one month from date of service
of this order upon them, authorising the sheriff of this Court to
evict the said
respondents and/or any persons occupying through or
under them, from the property on a date not being less than one month
from the
date of service of this order upon them.
Case No. 334/04
1. The written sale agreement concluded between the
applicant and the first respondent on or about 26 September 2001 has
been validly
cancelled.
2. That
the first, second and third respondents together with any other
person that may occupy shops nos. 2 and 3 at 12 Mahem Street,
Viljoenskroon, under and through them, and/or by virtue of the first
to third respondents’ occupation thereof:
2.1 vacate the said property within one (1) month from
date of service of this order upon the first to third respondents;
and
2.2 deliver
up to the applicant all keys to the property that the first to third
respondents may have in their possession or under
their control.
3. In the event that the first to third respondents
and/or any persons occupying through or under them, fail to vacate
the said property
within the period of one month from date of service
of this order upon them, authorising the sheriff of this Court to
evict the said
respondents and/or any persons occupying through or
under them, from the property on a date not being less than one month
from the
date of service of this order upon them.
Case No. 335/04
1. Declaring that the written sale agreement concluded
between applicant and the first respondent on or about 26 September
2001, has
been validly cancelled.
2. That
the first, second, third and fourth respondents together with any
other person that may occupy the building situated at 29
Theron
Street, Viljoenskroon, under or through them, and/or by virtue of the
first to fourth respondents’ occupation thereof:
2.1 vacate the said property within a period of one (1)
month from date of service of this order upon the first to fourth
respondents;
and
2.2 deliver
up to the applicant all keys to the property that the first to fourth
respondents may have in their possession or under
their control.
3. In the event that first to fourth respondents and/or
any persons occupying through or under them, fail to vacate the said
property
within the period of one month from date of service of this
order upon them, authorising the sheriff of this Court to evict the
said
respondents and/or any persons occupying through or under them,
from the property on a date not being less than one month from the
date of service of this order upon them.
Case No. 336/04
1. Declaring that the written sale agreement concluded
between the applicant and the first respondent on or about 26
September 2001
has been validly cancelled.
2. That
the first, second, third, fourth, fifth, sixth, seventh, eighth,
ninth and tenth respondents together with any other person
that may
occupy the building situated at 14 Mahem Street, Viljoenskroon,
including flats numbered 1 tot 7, within the said building
under or
through them, and/or by virtue of the first to tenth respondents’
occupation thereof:
2.1 vacate the said property within a period of one (1)
month from date of service of this order upon the first to tenth
respondents;
and
2.2 deliver
up to the applicant all keys to the property that the first to tenth
respondents may have in their possession or under
their control.
3. In the event that the first to tenth respondents
and/or any persons occupying through or under them, fail to vacate
the said property
within the period of one month from date of service
of this order upon them, authorising the sheriff of this Court to
evict the said
respondents and/or any persons occupying through or
under them, from the property on a date not being less than one month
from the
date of service of this order upon them.
Case No. 337/04
1. Declaring that the written sale agreement concluded
between the applicant and the first respondent on or about 26
September 2001,
has been validly cancelled.
2. That
the first respondent, together with any other person, save for the
second and third respondents, that may occupy the building
situated
at 12 Mahem Street, Viljoenskroon, including the frail care centre
within the said building but excluding shop no. 2, under
or through
the first respondent and/or by virtue of the first respondent’s
occupation thereof:
2.1 vacate the said property within a period of one (1)
month from date of service of this order upon the first respondent,
failing
which the sheriff of the Court is authorised to evict the
first respondent and/or any persons occupying through or under the
first
respondent from the property on a date not being less than one
(1) month from the date of service of this order; and
2.2 deliver
up to the applicant all keys to the property that the first
respondent may have in its possession or under its control.
3. That the second and third respondents, together with
any other person that may occupy the building situated at 12 Mahem
Street,
Viljoenskroon, including the frail care centre within the
said building but excluding shop no. 2, under or through them, and/or
by
virtue of the second and third respondents’ occupation thereof:
3.1 are afforded a period of two (2) months from date of
service of this order to negotiate and conclude a lease agreement
with the
applicant;
3.2 in
the event that the said parties do not conclude a lease agreement,
then and in that event:
3.2.1 the occupants are ordered to vacate the said
property three (3) months after the expiry of the said two (2) month
period, failing
which the sheriff of the Court is authorised to evict
the occupants from the property;
3.2.2 the
occupants are ordered to deliver up to the applicant all keys to the
property that the occupants may have in their possession
or under
their control;
3.3 In the event that the said parties do conclude a
lease agreement, then and in that event the provisions of 3.2 above
shall fall
away.
Case No. 338/04
1. Declaring that the written sale agreement concluded
between applicant and the first respondent on or about 26 September
2001 has
been validly cancelled.
2. That
the first, second, third, fourth and fifth respondents together with
any other person that may occupy the building situated
at 14 Mahem
Street, Viljoenskroon, including shops nos. 1 to 5 within the said
building, under or through them, and/or by virtue
of the first to
fifth respondents’ occupation thereof:
2.1 vacate the said property within a period of one (1)
month from date of service of this order upon the first to fifth
respondents;
and
2.2 deliver
up to the applicant all keys to the property that the first to fifth
respondents may have in their possession or under
their control.
3. In the event that the first to fifth respondents
and/or any person occupying through or under them, fail to vacate the
said property
within the period of one month from date of service of
this order upon them, authorising the sheriff of this Court to evict
the said
respondents and/or any persons occupying through or under
them, from the property on a date not being less than one month from
the
date of service of this order upon them.
/scd