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1989
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[1989] ZASCA 11
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Wilson v Spitze (539/87) [1989] ZASCA 11 (16 March 1989)
Case no 539/87 /MC
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
LIONHEART FREDERICK DAVID WILSON
Appellant
- and -
WERNER SPITZE
Respondent
Coram:
HOEXTER, BOTHA, E M GROSSKOPF, VIVIER,
EKSTEEN JJA.
Heard:
28 February 1989.
Delivered:
16 March 1989.
JUDGMENT
VIVIER JA.
2.
VIVIER JA
:-
This is an appeal, with the leave of the Court a
guo
against a
judgment delivered by VAN DEN HEEVER J in the Cape
Provincial Division in an action for damages for breach of
contract.
The facts relevant to this appeal are the
following.
On 10 May 1982 the respondent, to whom I
shall refer as the
defendant, sold a certain property at Kleinmond to the
appellant,
to whom I shall refer as the plaintiff, for the amount of
Rll 000 plus a
pro rata share of rates and taxes on the
property as from the date of
transfer, costs of transfer, bond
costs and interest on the purchase price.
The written offer
to purchase, signed by the plaintiff on 29 March 1982 and by
the defendant on 10 May 1982, was set out in one of the standard, printed
forms commonly used by estate agents.
The /.....
3. The general section of this document described the
property sold as "erf 4886, subdivided in 5 erven no's 5903, 5904, 5905, 5906
and 5907", and the parties intended that transfer of these five subdivisions
would be given to the plaintiff in five annual instalments.
In order to provide
for this the printed form was adapted and a special condition added at the end.
As a result a degree of uncertainty
was created in the document, to which I
shall refer as the deed of sale. The general section of the deed of sale
provided that the
plaintiff "shall within 7 days of the acceptance of this offer
pay a sum of Rl 100 and
the balance of the
plot price
, which will be suitably guaranteed,
against registration of transfer" (my emphasis). The special condition fixed the
purchase price
of each plot at R2 200, named erf 5907 as the first plot to be
transferred and provided for
the / ....
4.
staggered implementation of the contract in the
following
words :-
"Mr Wilson will buy erf no 5907 and pays (
sic
) R2,200 for this erf.
Balance guaranteed, against registratipn of transfer. Balance on other 4 erven
is R8,800 and on this he will
pay 14% interest p.a. Every year he will buy one
erf at R2,200 and takes (sic) transfer before 1 April. Interest to be
calculated,
every year on balance. All 4 erven must be sold to him before 1
April 1986 or early date if suitable to him."
The
general section of the deed of sale provided for possession
to be given "on
the date of transfer from which date interest
on the balance of the purchase
price will be payable at 14
percent per annum". The plaintiff was required
"to keep
the entire erf 4886 clear of bush and fire hazard".
Erf 5907 was only registered in the
plaintiff's
name / ....
5.
name on 7 April 1983. The transfer documents, which had
to
be prepared by the defendant's attorneys in terms of
the deed of sale, were
only ready for signature by the
plaintiff in August 1982. On 17 August 1982
defendant's
attorney ("Orman") wrote to the plaintiff requesting him
to
arrange an appointment with him in order to sign the
transfer documents and
to pay a deposit of R250 on account
of the transfer fees and his pro rata
share of the rates.
The plaintiff failed to respond to the letter, despite
a
written reminder addressed to him on 3 September 1982.
On 28 September
1982 Orman wrote to the plaintiff that unless
he complied by 11 October 1982
with the aforesaid conveyancing
requirements the defendant would cancel the contract.
Early in October 1982 the plaintiff paid the deposit required
and / ...
6.
and signed the transfer documents, but he thereafter
failed
to pay the balance of the purchase price of erf 5907 or to
give a suitable guarantee for the payment of the purchase
price when the transfer documents in respect of that plot
were lodged with
the Registrar of Deeds on 28 November 1982.
The defendant eventually had to
issue summons in the
Magistrate's Court on 13 January 1983 for payment of
the
balance of the purchase price of erf 5907 and, after initially
defending the action, the plaintiff only paid the balance on
1 March 1983. During the period from 22 November 1982 to 1 March 1983
the
plaintiff on more than one occasion undertook to pay but did
not keep
his word.
In a letter dated 14 March 1983 addressed by
Orman to the plaintiff's attorney ("Watermeyer") the
plaintiff /
7.
plaintiff was asked to nominate the next plot to be
transferred to him and he was informed that the purchase
price would have to be "duly guaranteed and paid without
any hassles". The plaintiff's response was set out in
a letter addressed by Watermeyer to Orman on 23 March 1983
viz that he was
obliged to take transfer of no more than one
plot per year and that, although
he anticipated that he would
be in a position later during 1983 to take
transfer of the
second plot, he was reserving his rights in that
regard.
This letter should be read together with an earlier letter
which
Watermeyer wrote to Orman on 17 March 1983 saying
that the plaintiff had to
take transfer of the second
plot not before 1 April 1984. On 23 March 1983
Orman
wrote to Watermeyer threatening that if the plaintiff
failed /
8.
failed to nominate the next erf to be transferred and to
guarantee payment of the purchase price the defendant would cancel the contract
and claim damages.
On the day following the registration of the first plot,
erf 5907,in the plaintiff's name, i.e. 8 April 1983, Orman addressed the
following letter to the plaintiff :-
"It is our client's contention that you were to have taken trasfer of Erf
5907 in the course of the calender year 1982, and as you
are aware, our client
submits that he was able and willing to register the transfer to you in December
1982.
Notwithstanding the aforegoing, our client submits that you were required in
any event, to have taken transfer of another subdivided
erf by the 1st April in
each year, the second subdivided erf to have been taken by you before the 1st
April 1983, with the proviso
that all four of the remaining subdivided erven
were to have been taken by you before the 1st April 1986.
As you have failed to take any steps whatso= ever to accept the second
subdivided erf, our
client / ...
9.
client now places you in mora by hereby notifying you that
unless you have., by 5 p.m. on the 16th May 1983, in writing, communicated
to
this office the number of the next subdivided erf which you will take AND
SIMULTANEOUSLY have suitably guaranteed payment of the
purchase price plus
interest and costs due thereanent, our client will consider you in breach of the
agreement, thereby entitling
our client forthwith thereupon to cancel the
aforesaid Deed of Sale, and you are hereby informed that our client will
accordingly,
without further notice, so cancel the agreement, holding you liable
for such damages he may suffer by reason of your breach.
A copy of this letter is being forwarded to your attorneys."
Orman's letter of 8 April 1983 crossed with a
letter
dated 11 April 1983 addressed by Watermeyer
to Orman stating
that the plaintiff was now prepared to take transfer of
a
further plot, which had to adjoin erf 5907, at the end of May
1983. On
26 April 1983 Watermeyer, in reply to Orman's letter
of / ...
10.
of 8 April 1983, wrote that :-
"we can find no reference in the deed of sale to any obligation on our client
to furnish you with a guarantee unless one interprets
the words 'balance
guaranteed' to mean this. It seems to us, however, that this should be
interpreted more as being confirmation
on our client's part
that he can fulfil his obligations
We do not wish to fight with you at each stage here. Our client has a lot at
stake. He does wish to proceed with the transaction and
has every intention of
fulfilling his obligations in terms of the deed of sale."
The defendant was not satisfied with a mere confir=
mation but insisted on a guarantee in the form of the plaintiff
depositing sufficient money in Watermeyer's trust account to cover the
purchase price of the next plot to be transferred
plus /
11.
plus interest at the rate of 14 percent from 1 January 1983
to date of transfer. This was clearly stated in Orman's next letter to
Watermeyer, dated 2 May 1983. In this letter Orman also gave notice that since
the plaintiff was prepared to accept transfer of any
adjacent plot, erf 5906
would next be transferred to him. Thus the demand for the plaintiff to nominate
the next plot, mentioned
in Orman's letter of 8 April 1983, fell away.
The
defendant's demand that a guarantee in respect of the purchase price of erf 5906
be furnished by 5 pm on 16 May 1983 was not met.
The following morning
Watermeyer telephoned Orman to tell him that he had now received sufficient
money into his trust account to
furnish the guarantee demanded. There was a
conflict at the trial between the evidence of
Orman / ...
12.
Orman and Watermeyer as to what was said on that
occasion.
Watermeyer's version, which was not accepted by the trial
Court, was that
Orman gave an undertaking that the defendant
would proceed with the transfer
of erf 5906, despite the fact
that the demand for a guarantee had not been met by 16 May
1983. Orman's version, which was accepted by the trial Court,
was that he
gave no such undertaking but that he instead told
Watermeyer that he would
obtain his client's instructions.
Orman testified that he did so and that the
defendant insisted
that the contract be cancelled. The cancellation was conveyed to the
plaintiff in a letter from Orman to Watermeyer dated 18 May /
.....
13. 18
May 1983.
The plaintiff thereupon instituted the present proceedings,
claiming transfer into his name of erf 5906. Lengthy pleadings followed,
including several amendments to the Particulars of Claim. When the defendant
sold and transferred all four remaining plots to a third
party, the Particulars
of Claim was finally amended to be confined to a claim for damages in an amount
of R48 200. The trial came
before VAN DEN HEEVER J who held that the defendant's
cancellation of the contract was justified and dismissed the plaintiff's claim
with costs, save for certain special orders as to costs.
VAN DEN HEEVER J interpreted the deed of sale
as
requiring the plaintiff to furnish two guarantees
in respect
of the purchase price: the first one being the standard
transfer /
14.
transfer guarantee that the balance of the"plot price"of
erf
5907 would be paid against registration of that plot in
the
plaintiff's name and the second being an advance guarantee
in respect
of the purchase price of R8 800 of all four
remaining plots. The learned
judge held that the latter
guarantee had to be given at the time when erf
5907 was
transferred to the plaintiff, irrespective of whether
the
defendant was at that stage able to lodge with the Registrar
of Deeds
the necessary documents to effect transfer of the
remaining plots. It was
conseguently held that, having
failed to provide the latter guarantee by 15 December 1982
i.e. the date when the defendant was ready and able to pass
transfer of erf 5907, the plaintiff was already in mora even
before the letter of 8 April 1983 was written.
Before / ....
15. Before this Court Mr Burger, who appeared on
behalf of the defendant, advanced no argument in support of the interpretation
placed
on the deed of sale by VAN DEN HEEVER J, and for the reasons
which follow
I am unable to agree with that interpretation.
As regards the first guarantee
referred to by VAN DEN HEEVER J,
it is a well-established rule of our law that where a contract
of sale of
land provides for cash to be paid against transfer,
so that the
merx
ought in theory to be delivered
pari passu
with payment of the
purchase price, the practical expedient is
resorted to whereby the buyer fulfils his obligations by
furnishing the seller with a suitable guarantee that the
purchase price
will be paid on registration of transfer of
the property into his name. The
expedient is adopted since,
under our system of land registration, it is
virtually
impossible/....
16.
impossible in practice for payment and transfer to take
place
pari passu
, as an interval must necessarily elapse between the
time
the transfer documents are lodged in the Deeds Office and the
moment
of registration, and the buyer cannot know before=
hand when to be in
attendance with his money. The reason for
permitting the buyer to adopt the
said expedient is to protect
the financial interests of both parties and to overcome their
possible mutual distrust or uncertainty that if the one performs
the other may be unable or unwilling to perform (per TROLLIP JA
in
AA Farm Sales (Pty) Ltd (t/a AA Farms) V.Kirkaldy
1980(1)
SA
13(A) at 17B-C).
In a case such as the present, where no time is
fixed
in the contract for payment or transfer, the
date upon which
the buyer is obliged to furnish a transfer guarantee
according
to/......
17.
to the rule enunciated above, depends upon the date on
which
the seller will be able to lodge the documents required for
transfer
in the Deeds Office. I will return to this aspect
later. The parties are,
however, free to stipulate that
the buyer should give a guacantee before
transfer and irre=
spective of whether the seller is ready and able to lodge
the
transfer documents with the Registrar of Deeds. Such a
provision
places an additional burden on the buyer and
requires clear language.
(
Wehr v Botha NO
1965(3)
SA 46(A) at 60E-H).
In the present case the provision in the
general
section of the deed of sale requiring a
suitable guarantee
to be furnished for the "balance of the plot price"
clearly
referred only to the balance of the purchase price of the
first/......
18.
first plot to be transferred. The general section did not
deal with the transfer of the remaining four plots. The special condition
which
was inserted to deal with the staggered transfer of all five plots, logically
commenced by again referring to the first plot
to be transferred, namely erf
5907, and thus repeated what had already been provided in the general section of
the deed of sale with
regard to the guarantee of the purchase price of that
plot. Nothing was said in the special condition about any guarantee in respect
of the purchase price of the remaining four plots, so that the aforementioned
rule applied, entitling the seller to require the standard
transfer guarantee to
be furnished in respect of those plots. In my view the wording of the deed of
sale
provided no basis for the finding of the learned Judge a
guo
that / ....
19. that a special advance guarantee was required in
respect of the purchase price of the remaining four plots.
The aforesaid
letter of demand of 8 April 1983 clearly did not call for anything more than the
standard transfer guarantee in respect
of the purchase price of erf 5906. The
question whether that letter served to place the plaintiff in mora in respect of
the transfer
of erf 5906, was answered, in my view, by Orman himself. His
evidence at the trial was quite clear that neither at the time when
the letter
of 8 April 1983 was written nor on 16 May 1983 was the defendant in any position
to take immediate steps to give transfer
of erf 5906. Orman said that his
practice was not to commence preparing the necessary transfer documents, and so
incur costs, until
he was assured that the buyer would pay the
deposit/....
20.
deposit in respect of the transfer costs and that he
would
take transfer. For that reason he required confirmation
in the
letter of 2 May 1983 that the purchase price had
been paid into Watermeyer's
trust account as well as an under=
taking that the purchase price would be
paid against transfer,
before starting to prepare the necessary transfer
documents.
Orman testified that he would have required at least
another
two months before he could have lodged the transfer documents
with
the Registrar of Deeds. This, no doubt, is the reason
why Orman did not in
the letter of 8 April 1983 nor in the
subsequent letter of 2 May 1983 inform
the plaintiff that the
defendant would without delay after receipt of the
guarantee
called for, lodge the necessary transfer documents in the
Deeds
Office.
I /
21. I return to the guestion as to when a seller is entitled
to demand a transfer guarantee where no time is fixed in the contract
for
payment or transfer. The rule, as laid down in cases such as
Hammer v Klein
and Another
1951(2) SA 101(A) at 105H-106C and
Linton v Corser
1952(3) SA 685(A) at 694A-E,is that a seller is not entitled to demand a
transfer guarantee upon a date earlier than that on which
he proposes to lodge
with the Registrar of Deeds the documents reguired for transfer. As the buyer
cannot know when the seller will
be ready to lodge, there is a duty upon the
seller, when demanding a transfer guarantee, to inform the buyer when he
proposes to
lodge. It does not have to be an exact date, and it will be
sufficient compliance with the rule if the seller informs the buyer that
he will
without any delay after
receiving/....
22.
receiving the reguired guarantee,lodge the necessary
documents
in the Deeds Office. In
Linton's
case CENTLIVRES CJ put the
rule thus at 694D-E:-
"The rule is sufficiently complied with if it is obvious (as it was in the
present case) to the purchaser on the receipt of the demand
that the seller is
in a position to take immediate steps to give transfer, and will do so, as soon
as he is furnished with a satisfactory
guarantee."
In the present case the rule was clearly
not complied with and the letter of 8 April 1983 did not, therefore, serve to
place the plaintiff
in mora in respect of his obligation to furnish a transfer
guarantee for the purchase price of erf 5906.
Mr Burger also relied on the
demand in the letter of 8 April 1983 for the transfer costs to be guaranteed as
a separate ground justifying
the purported cancellation of the
contract/
23.
contract. The letter called for one guarantee in respect of
both the purchase price and transfer costs and since the defendant would,
on
Orman's evidence, not have started pre= paring the transfer documents without
the guarantee which, as I have shown, he was not
then entitled to, it follows,
in my opinion, that he was not entitled to a guárantee for the transfer
costs either.
Mr Burger further submitted that even if, on an application of
the principles set out in
Hammer v Klein and Another
,
supra
, and
Linton v Corser
,
supra
, the plaintiff was not placed in mora by
the letter of 8 April 1983, the demand for a guarantee for the purchase price of
erf 5906
was nevertheless justified on another ground. He submitted that the
plaintiff's attitude, as evinced in the letters of 17 and
23 March / ...
24.
23 March 1983, to which I have referred above, not only
amounted to a repudiation of the contract, but that his conduct over a lengthy
period of time gave rise to the reasonable inference that he was unable or
unwilling to pay the purchase price of erf 5906. Under
these circumstances, Mr
Burger submitted, the defendant was entitled in law to require reasonable
security for the payment of the
purchase price and, when that was not
forthcoming by the reasonable deadline set by the defendant, to cancel the
contract.
The authorities referred to by Mr Burger in support of his
submission all deal with the situation where, subsequent to the sale, the
purchaser either becomes insolvent or he becomes generally unable to pay his
debts so that the seller
runs the risk of losing the purchase price. They nearly
all /...
25.
all deal with sales where the seller had to perform
first,
either according to the
naturalia
of the agreement or
where
the parties so stipulated. The first decided case relied
on by Mr
Burger was
Ullman Bros Ltd v Kroonstad Produce Co
1923 AD 449
where
the buyer, after the conclusion of a sale
on credit, notified the seller that
he could not pay and
reguested a settlement. The seller replied that he
regarded
the contract as cancelled and would claim damages. The
buyer's
reply to this was that he would then rather accept delivery
of the
goods and at the request of the seller went on to give
instructions for
delivery. The seller then demanded a guarantee
for payment and when the demand was not met, cancelled the contract and
claimed damages. This Court held that the seller's cancellation
of the contract
was justified. It was suggested
by /.....
26.
by Mr Burger that the basis for the decision was the buyer's
failure to provide security. De Wet and Yeats,
Kontraktereg en
Handelsreg
, 4th ed at p 180, footnote 11, express the view that the decision
is unsatisfactory in that it does not clearly distinguish between
repudiation
and the buyer's failure to furnish security. It would appear from the judgment
of KOTZE JA (INNES CJ and SOLOMON, DE
VILLIERS and WESSELS JJA concur= ring)
that the true
ratio decidendi
was that the cancellation was justified on
the ground of the buyer's repudiation of the contract and that, by calling for
security,
the seller did not waive his right to accept the repudiation and
cancel the contract. At p 454 of the report KOTZE JA referred to
the buyer's
initial notification that he was unable to pay
and / ....
27. "and his offer to settle the matter by the payment of a stated
amount of damages, and said that this amounted to a clear inti=
mation of his inability to complete the contract and pay for the
maize. The seller was justified in so regarding it, and acted
within his rights, when, on the receipt of this letter, he
informed the buyer that his only course was to sell out against
the buyer, giving him at the same time notice thereof.
KOTZE JA wênt on to deal with the question whether,
by demanding security, the seller had waived his right to
accept the repudiation and cancel the contract and concluded,
at p 456, that he had not done so. In support of his finding
that the seller was entitled to regard the buyer's intimation
of his inability to pay as a repudiation KOTZE JA referred at p 456 to
Ex
parte Stapleton
10 Ch D 586
, where JESSEL MR said that if
a person /
28.
a person, who has entered into a contract for the sale
of
goods on credit, gives to the vendor before the latter has
parted with
his goods that which in effect amounts to a notice
that he has parted with all his property and is unable to pay
the price,
it is equivalent to a repudiation of the contract.
KOTZE JA concluded his
judgment by pointing out (at p 458) that
"reference was made to the civil
law, and to the Commentaries
of Domat and Pothier thereon. It is not
necessary to pursue
the matter further than making a few observations."
After
referring to the views of these two writers and to D 18.6.1.3
the
learned Judge said that "The rules, therefore, which we
observe in commercial
dealings at the present day find support
and sure foundation in the
principles of the Roman Law".
In /
29.
In the paragraph from Domat referred to
(The Civil Law, Vol 1, book 1,
title 2, sec 22, Strahan's
translation) the following is said:
"If the seller is in manifest danger of losing the Price, through the
insolvency of the Buyer, or for some other causes, he may keep
the thing sold,
by way of pledge, until the Buyer has given him security for his payment."
Pothier,
Contract of Sale
, sec 67 is to the same
effect (Cushing's trans.) :-
"But if the affairs of the buyer subsequently become deranged, so that the
seller runs the risk of losing the price, the latter may
defend himself against
a delivery of the thing, notwithstanding the term of credit given, at least, if
the buyer does not offer payment,
or to furnish a sufficient surety for the
payment of the price".
In the passage from the Digest referred to by
KOTZE /
30. KOTZE JA, Ulpian states that if the buyer of wine is
in
default the seller may hold back the wine or else sell the
wine in good
faith provided he mitigates the buyer's loss
so far as he can without
detriment to himself.
Mr Burger also relied on the decisions in
Chadwick
v Henochsberg
1924 TPD 703
and
Hayne NO v Narun Bros
1926
OPD 207.
In the first-mentioned case
the seller cancelled
a contract of sale of goods to be delivered in
instalments,
the price of each instalment being payable on delivery,
after
the buyer failed to pay for the first deliveries and his
estate was
provisionally sequestrated. He made an offer of
composition to his creditors,
after which the provisional order
was discharged. The Court held that the
offer of compromise
could / ....
31. could reasonably be regarded as an intimation to the seller that the
buyer was uhable to pay the amount due under the contract
and that he could not
and did not intend to perform his obligations under the contract. It was held
that this amounted to a repudiation
of the contract which the seller accepted,
thereby bringing the contract to an end.
In
Hayne NO v Marun Bros,
supra
, the buyer of goods on credit became unable to pay his debts and
assigned his estate before delivery of the goods. When the seller
heard of the
assignment he called for a bank guarantee for the purchase price, failing which
he would cancel the contract. It was
held (at p 213-214) that the seller's
knowledge must be deemed equivalent to notice by the buyer, and that it
immediately
entitled /
32.
entitled the seller to ask for an assurance from the buyer as
to the safety of the purchase price by requiring either payment or security,
and
to cancel the contract if security was not furnished within a reasonable time.
The court relied on the passages from Domat and
Pothier quoted above which it
said (at p 213), had apparently been stamped with authority in
Ullman
's
case,
supra
, although no direct support for it could be found in the
Roman-Dutch writers.
The rule as stated by Pothier and Domat was clearly
designed for the protection of the seller in credit sales where, before
delivery,
the buyer becomes unable to pay the purchase price. I doubt whether
there is any need for the application of the rule in a sale of
land for cash in
our law
where / ....
33. where the obligations of the seller and buyer
are reciprocal and concurrent and where the seller is adequately protected by
the
ordinary guarantee which is dealt with in the cases of
AA Farm Sales
,
Hammer v Klein
and
Linton v Corser
to which I have referred above.
It is not necessary, however, to express a firm view on the matter since the
facts of the present
case provide no basis for the application of the
rule.
It was never alleged on the pleadings that the plaintiff was unable to
pay his debts or that he had repudiated the contract. Neither
was there any
mention of this in the letter of demand of 8 April 1983 or in any of Orman's
other letters per = taining to the transfer
of erf 5906. The plaintiff's ability
to pay
the / ....
34. the purchase price under the contract was thus
never in issue at the trial and was not canvassed, despite the fact that he had
delayed and prevaricated in paying the balance of the purchase price of erf 5907
and only paid on 1 March 1983.
The same applies to the repudiation relied
upon by Mr Burger. It will be recalled that in his letter of 17 March 1983
Watermeyer stated
that the plaintiff had to take transfer of the second plot
only by 1 April 1984 and that in the letter dated 23 March 1983 Watermeyer
implied that, having taken transfer of erf 5907 during 1983 the plaintiff was
not obliged to take transfer of another plot in that
same year. I do not think
that the attitude displayed in those two letters amounted to a repudiation of
the contract, but, assuming
that it did,
the / ...
35. the repudiation was not accepted by the defendant
who elected to abide by the contract and claimed performance in Orman's letters
of 8 April 1983 and 2 May 1983, thereby keeping the contract alive. Furthermore,
long before the purported cancellation, it was made
clear in Watermeyer's two
letters dated 11 April 1983 and 26 April 1983 that the plaintiff no longer
contended that he only had to
take transfer of the second plot in 1984, but that
he was now willing to take transfer of erf 5906 by the end of May 1983. The fact
that this was after the date stipulated in the deed of sale, i.e. 1 April 1983,
is not important in view of Orman's evidence that
he was in any event not ready
to give transfer.
Mr Burger / ....
36.
Mr Burger went further and submitted that even though the
plaintiff's repudiation aforesaid was not accepted by the defendant, it
nevertheless entitled the latter to demand security for the payment of the
purchase price. Mr Burger could not refer to any authority
in support of his
submission and I do not think that it is sound. The repudiation was rejected by
the defendant and that was the
end of the repudiation as such. The contents of
watermeyer's letters of 17 and 23 March 1983 certainly provided no basis for any
inference that the plaintiff was unable to pay his debts.
I am accordingly of
the view that defendant's cancellation of the contract was not justified. It
follows
that / ...
37. that when he sold the four remaining plots to a third
person he acted in breach of his obligations under the
contract with the
plaintiff, entitling the latter to
damages. There was no dispute between the
parties as
to the actual amount of damages to be awarded. The
evidence of
the plaintiff's witness, Sabbe, established
that the total market value of
the four remaining plots,
as at the respective dates on which they would have
been
transferred to the plaintiff, was R53 000. From this amount
must be
deducted the purchase price of R8 800 and interest
thereon /
38.
thereon of R2,156 which the plaintiff would have paid
under
the contract, resulting in an amount of damages to be awarded
of R42
044.00.
There remains the special order as to the costs
of
the postponed hearing of the trial on 19 February
1985 to be
dealt with. This is the only one of the special orders as
to costs made by the trial judge which was challenged on
appeal. The trial was due to commence on 19 February 1985
but was postponed
sine die
following an application for the
amendment of the plaintiff's Particulars of Claim which was
made and granted that day. The trial Court ordered the
plaintiff to pay the wasted costs occasioned by the amendment.
In the unamended Particulars of Claim the plaintiff had relied
upon an unsigned, and thus invalid deed of sale, and in the
alternative /.....
39.
alternative alleged that the defendant was estopped from
denying that he had signed that deed of sale. A signed deed of sale was later
annexed to the defendant's plea, but thereafter the plaintiff waited for more
than a year until the first day of the trial before
applying for an amendment of
his Particulars of Claim so as, inter alia, to replace the deed of sale he was
relying upon with the
one annexed to the defendant's plea and to delete the
alternative allegations of estoppel. On the pleadings as they stood up to the
first day of the trial the defendant had to assume that the plaintiff did not
accept the document annexed to the plea as the true
deed of sale and that he
persisted with the grounds set out in his Particulars of claim. When the
amendment was
granted the defendant was consequently entitled to consider
his/....
40. his position. In my view VAN DEN HEEVER J was
justified in ordering the plaintiff to pay the costs occasioned by the
postponement
and no good reason exists for interfering with the exercise of her
discretion.
In the result the following order is made
:-
1.
Save as regards the trial Court's special order as to the costs
occasioned by the amendment to the Particulars of Claim on 19 February
1985, the
appeal succeeds with costs, such costs to include the costs of two
counsel.
2.
The following order is substituted
for para 1 of the order granted by the trial
Court:
"Judgment/......
41.
"Judgment for the plaintiff in an amount of R42 044-00 with costs, save as
set out in para 3 of this order."
3. Interest
a tempore morae
on R42 044-00
is awarded to the plaintiff from 16 March 1989 to date of payment.
W. VIVIER JA.
HOEXTER JA)
BOTHA JA) Concur.
E M GROSSKOPF JA) EKSTEEN JA)