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[1985] ZASCA 137
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Phone-a-Copy Worldwide (Pty) Ltd. v Orkin and Another (125/83/av) [1985] ZASCA 137; [1986] 2 All SA 12 (A) (29 November 1985)
150/85
125/83/AV
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
PHONE-A-COPY WORLDWIDE (PROPRIETARY
)
LIMITED
Appellant
AND
JOHANNA MARTHA ORKIN
1st Respondent
WILLIAM DOUGLAS ARMSTRONG
2nd Respondent
CORAM
: JANSEN, MILLER, VAN HEERDEN, JJA GALGUT and NICHOLAS, AJJA
HEARD
: 1 May 1985
DELIVERED
: 29 November 1985
JUDGMENT NICHOLAS, AJA
Mrs. Johanna Martha Orkin and Mr. William
Douglas
2 Douglas Armstrong (the respondents in this appeal,
who were formerly married to each other), instituted an
action in the Transvaal Provincial Division against
PHONE-A-COPY WORLDWIDE (PTY) LTD (the present appellant) in which they
claimed transfer of certain 12 flats in an existing block of
flats in Pretoria.
The parties stated a special case, in terms of Rule 33 of the Uniform Rules of
Court, in which the agreed facts
were set out and the issues stated. The case
was heard by LE ROUX J who granted judgment in favour of the plaintiffs. (The
judgment
is reported
sub nom
.
Orkin en 'n Ander v Phone-A-Copy
Worldwide (Pty) Ltd
1983(3) SA 881(T), where the facts and issues are fully
set out.) With the leave of
the
3
the Court a
quo
, PHONE-A-COPY (to which I shall refer
as
"the defendant") appeals against the whole of the judg-ment and order.
The case arose out of a written agreement of
sale
concluded on 10 July 1975 between PHONE-A-COPY
WORLDWIDE (PTY) LTD as "THE
SELLER", and
WILLIAM DOUGLAS ARMSTRONG & JOHANNA MARTHA
ARMSTRONG
of Kronendal Hotel, Room 5G, Pretorius
Street Pretoria as "THE PURCHASER".
Clause 1 of the agreement reads as follows:
"1.
PREAMBLE
WHEREAS UNICADIA (EIENDOMS) BEPERK (The Owner Company) is, by virtue of
Certificate
4
Certificate of Consolidated Title No.
12014/1970, dated 27th April
1970,
the registered owner of:-
Erf No. 1151 Arcadia,
Registration
Division J.R., Transvaal;
MEASURING
4493 (Four Thousand
Four Hundred and Ninety Three) Square Metres; whereon is erected a block of
Eighty Eight (88) flats with garages
and parking spaces, the said land with
improvements aforesaid being mortgaged under First Mortgage Bond to THE BANK VAN
JOHANNESBURG
BEPERK; AND WHEREAS the Owner Company, wherein the directors are
identical to those of the SELLER, is about to prepare a Development
Scheme ("The
Scheme") under the Sectional Titles Act No. 66/1971 ("The Act") in respect of
the said land with improvements aforesaid,
and to apply to the City Council of
Pretoria ("The Local Authority") for approval of the Scheme, and to the
Registrar of Deeds for
the Transvaal
("The
5
("The Registrar") for the registration
of a Sectional Plan and the opening
of
a Sectional Register in respect of the
Scheme;
AND WHEREAS unless
and until the regis
tration of the Sectional Plan and the
opening of the
Sectional Register
aforesaid takes place, both parties
are aware that this
Contract will not
enable the PURCHASER to obtain Sec
tional Title to the
Unit hereby sold,
but are nevertheless willing to con
clude this
Agreement, subject to
the condition that if the registra
tion of the
Sectional Plan and the
opening of the Sectional Register
aforesaid cannot
take place, then the
SELLER shal be entitled to cause to
be transferred
into the name of the
PURCHASER, in lieu of passing trans
fer of the Unit
hereinafter mentioned,
such number of shares in the Owner
Company as the
SELLER deems commen
surate with the PURCHASER'S right to
occupy the
Sections "
The
6
Clause 3 provides:
"3. SUBJECT MATTER OF SALE 3.1 Subject to the further provisions of this
Agreement and in particular those set forth in Paragraphs
1,2 and 19(b) hereof,
the SELLER hereby sells to the PURCHASER who hereby purchases from the
SELLER:-
(a) Flat Nos ("The Section") in the
aforementioned block of flats
known as
UNICADIA;
402-403-404-405-406-407-202-203-204-205-305-304 (Twelve Flats).
(b) An undivided share in the common
property, as defined in the Act
and
as applicable under the Scheme,
to be apportioned to the Section
in accordance with the Participation Quota (as defined in Section 24 of the Act)
of the Section; (the Section and the said undivided
share being collectively
referred to as "the Unit").
(Clause
7
Clause 2 provides that the preamble is incorporated in
the
agreement, and clause 19(b) provides that -
"19.
(b) Should the SELLER not be able to obtain registration of the Sectional
Plan and the opening of the Sectional Register aforementioned,
the SELLER shall
be entitled to cause to be transferred into the name of the PURCHASER, in lieu
of passing transfer of the Unit,
such number of shares in the Owner Company as
the SELLER deems commensurate with the PURCHASER'S rights to occupy the
Section."
The following definitions contained in s. 1 of the
Sectional Titles
Act
No 66 of 1971 are relevant to the
consideration of the preamble and
clause 3:
"'
common property
', in relation to any
building
8
building or buildings in a scheme, means -
(a)
the land on which the said
building or buildings is or are situated; and
(b)
such parts of the building or buildings as are not included in a
section;
'
development scheme
' means a scheme
in terms of which a building or buildings situated or to be erected on land is
or are, for the purpose of selling,
letting or otherwise dealing with parts of
that building or buildings, divided or to be divided into two or more sections;
'land'
means the land shown on a sectional plan as part of a scheme;
'
participation quota
', in relation to a section or the owner of a
section, means the decimal fraction determined in accordance with the provisions
of
section 24(1) in respect of that section for the purposes referred to in
section 24(2);
'quota
9
'
quota
', in relation to a section or the owner of a section, means the
participation quota of that section; '
scheme
' means a development scheme;
'
section
' means a section shown as such on a sectional plan;
'
sectional plan
', in relation to a scheme, means a plan -
(a) which is described as a sectional
plan;
(b) which shows the building or
buildings and the land comprised
in the
scheme as divided into two
or more sections and common pro
perty; and
(c) which complies with the require
ments of section 6;
and includes a
plan in respect of an additional building or an extension of a building on the
land shown on the sectional plan registered
under this Act and a plan of
subdivision of any section and a plan of resubdivision of any section defined on
the sectional plan
registered under this Act;
'sectional
10
'
sectional title register
' means the register referred to in section
8(1)(b), and includes any sectional plan registered under this Act and the deeds
registry's
duplicate of any certificate of registered sectional title deemed to
be incorporated in such register;
'
undivided share in the common
property
' in relation to an owner, means the undivided share of that owner
in the common property as determined in accordance with the quota
of the section
of which he is the owner, and, in relation to a section, means the undivided
share in the common property apportioned
to that section in accordance with the
quota of that section;
'
unit
' means a section together with its
undivided share in the common property apportioned to that section in accordance
with the quota
of that section."
In
11
In terms of s. 24(1) of the Act,
"24.(1) The participation quota of a section or of the owner of a section
shall be a decimal fraction, correct to three places, arrived
at by dividing the
floor area, correct to the nearest square metre, of the sec-tion by the floor
area, correct to the nearest square
metre, of all the sections in the building
or buildings comprised in the scheme."
s. 3(2) of the Act provides that "a unit shall
for all purposes be deemed
to be land "
Of the issues set out in the special case, the Court a_
quo
decided two: the first as to the sufficiency of the description in
the agreement of sale of the property sold; and the second as
to the validity of
the cancellation of the agreement by the seller.
(a)
12
(a)
Sufficiency of Description
It was submitted on behalf of the defendant that
the description in clause 3 of the agreement of the
property sold was not
a sufficient compliance with the
provisions of s.l(l) of the
Formalities
in Respect of
Contracts of Sale of Land Act
, No 71 of 1969,
which
provides that
"No contract of sale of land .... shall be of any force or effect unless it
is reduced to writing and signed by the parties thereto
or by their agents
acting on their written authority."
It is well settled that a provision such as this requires that there be set
out in the writing the essential elements of a contract
of sale, including a
description of
the
13
the property sold. HOLMES JA said in
Clements v
Simpson
1971(3) SA 1(A) at 7 F-G:
"The test for compliance with the statute, in regard to the res
vendita
, is whether the land sold can be identified on the ground by
reference to the provisions of the contract, without recourse to evidence
from
the parties as to their negotiations and
consensus
."
It was argued in this Court (as in the Court
a
quo
) that the description was inadequate "in respect
of the section(s)
sold and/or the common property and/or
the participation quota." LE ROUX J
held (at 895
H) that there was a proper description of the property
as required by Act 71 of 1969.
In
14
In terms of the agreement, the
res vendit
a
(collectively referred to as "the Unit") comprises (a) "The Section" and(b) " an
undivided share in the common property".
As to (a)
:
"The Section" is defined as
comprising 12 specified flats, in the block known as UNICADIA.
It is clear
that a property may be identified "by the name of the house or farm, as the case
may be, by a street number or by a number
on a general plan or survey". (
Van
Wyk v Rottcher's Saw Mills (Pty) Ltd
1948(1) SA 983(A) at 1005, and see the
cases referred to in
Forsyth & Others v Josi
1982(2) SA 164(N) at
172-173.)
The case of numbered flats is no different.
It
15 It is stated in the special case that UNICADIA is an existing block of
flats, consisting of 88 flats, each of which is identified
by a number attached
to the front door. There is, therefore, no problem in applying, without the
necessity of evidence from the parties,
the language of clause 3(a) to the flats
in
situ
. (Cf.
Forsyth's
case (
supra
) at 173 F.)
As to (b)
:
It is true that the "undivided
share in the common property" could not be ascertained at the date of the
agreement, but would become
ascertainable only when a sectional plan was
registered. That fact does not, however, in itself render the description
insufficient.
In
16 In terms of s. 5(3), Act No 66 of 1971 an application for the
opening of a sectional title register must be accompanied by a sectional
plan
relating to the scheme in question. "Sectional plan" is defined as a plan which
inter alia
complies with the requirements of section 6. In terms of s.
6(2) a sectional plan shall
(d) include a drawing to scale of
each storey in the building or
buil
dings shown thereon and define each
section in the building or
buildings
with reference to the floors, walls
and ceilings thereof
(including any
stoep, porch, balcony or projection),
each section to be
distinguished by
a number;
(e) show the floor area to the median
line of the boundary walls of
each
section
17
section, correct to the nearest square
metre, and the total
floor area of all
the sections, correct to the nearest
square metre;
(f) have endorsed upon it a schedule specifying the quota of each section in
the manner referred to in section 24(1) and the total
of the quotas of all
sections shown thereon;
In terms of clause 3(b) of the agreement, the "undivided share in the common
property" which was comprised in "the Unit" was "as defined
in the Act and as
applicable under the Scheme". In terms of the preamble, the scheme was to be
prepared by the Owner Company and
registered with the Registrar of Deeds. Upon
such registration, the "undivided share" and the participation quota would be
readily
ascertainable "without recourse
to
18 to evidence from the parties as to their negotiations and
consensus
". Compare
Tucker's Land and Development Corporation (Pty)
Ltd v Kruger
1973(4) SA 741(A), in which the subject-matter of the contract
there in issue was described as certain stands numbered with reference
to a plan
of a proposed township to be prepared by town planners. It was held that this
was sufficiently precise to enable identification
of the stands without recourse
to the evidence of the parties concerned.
The conclusion is that "the Unit"
was sufficiently described in respect of each of its components, i.e. "the
Section" and "an undivided
share in the common property".
LE
19
LE ROUX J was therefore right in deciding the
first
issue against the defendant.
2.
Validity of Cancellation
Clause 4 of the agreement provided that the
purchase
price of the Unit was the sum of R109 500,00,
payable in terms of sub-clause
(d) in monthly instalments
of not less than Rl 181,00, subject to two
provisions,
the first of which is not applicable in the present case.
In
terms of the second,
"(ii) the whole balance outstanding in
respect of the purchase price hereunder and all interest due hereunder shall
be paid in full not later than three (3) years after
the date of signature
hereof. Delivery by the PURCHASER of such bank or building society guarantees as
may be required
by
20
by the SELLER in respect of the whole balance outstanding in
respect of the purchase price hereunder and all interest as aforesaid,
payable
on registration of transfer, or alternatively, transfer of the shares in the
Owner Company, referred to in Paragraph 19(b)
hereof, and making provision for
payment of interest up till date of transfer, or alternatively, transfer of the
shares in the Owner
Company, referred to in Paragraph 19(b) hereof, shall be
deemed to be due fulfilment by the PURCHASER of his obligations aforesaid."
In terms of clause 12:
"12. FORFEITURE AND CANCELLATION Should the PURCHASER fail to pay any monies
payable in respect of the purchase price hereunder, or
any other monies payable
under this Agreement
on
21
on the due date hereof, or should the PURCHASER fail to comply with any other
obligation(s) under the Agreement within thirty (30)
days after receipt by the
PURCHASER of a letter handed over to the PURCHASER and for which an
acknowledgement of receipt has been
obtained, or after the posting of a letter,
sent by prepaid registered post to the PURCHASER'S domicilium citandi et
executandi,
or to the PURCHASER'S last known residential or business address,
informing the PURCHASER of the failure in question and making demand
to the
PURCHASER to carry out the obligation(s) in question within the said period of
thirty (30) days, then and in such event, the
SELLER shall be entitled, in
addition to and without prejudice to any other rights available at law, to:-
(a) Either summarily cancel this
Agreement; or
(b) Claim immediate payment of all
monies payable in terms hereof,
as
22
as also damages and legal costs calculated on an attorney and
client basis, including collection commission."
The parties made it common cause in the special
case
that the monthly instalments were paid punctually. The outstanding balance of
the purchase price was, however, not paid within
the said period of three years,
namely, on or before 9 July 1978, or thereafter.
On 20 February 1980 the
defendant's attorneys despatched by registered post to the plaintiffs, at the
various addresses set out therein,
a letter reading as follows:
"Our Ref: Mr Truter/V86
BY REGISTERED POST
Copies sent to: P O Box 781466
Sandton 2146 and to: 402 Unicadia Flats
734
23
734 Park Street
Arcadia
PRETORIA
0007
20th February, 1980
Mr W D Armstrong & Mrs J M Armstrong Kronendal
Hotel Room 5G
Pretorius Street PRETORIA 0001
Dear Mr and Mrs Armstrong DEED OF SALE
DATED 10/7/75 IN RESPECT OF FLAT NUMBER 402,403,404,405,406,
407,202,203,204,205,305 and 304
UNICADIA FLATS: OUR CLIENT PHONE-A-COPY
WORLDWIDE (PTY) LIMITED
We have been instructed by our client Phone-a-Copy Worldwide (Pty) Limited,
to claim from you, as we hereby do, immediate payment
of the balance of the
purchase price and interest due under the above-mentioned Deed of Sale.
In
24
In terms of clause 12(d)(ii) of the Deed of Sale the whole balance
outstanding in respect of the purchase price and all interest due
under the Deed
of Sale should have been paid in full not later than three years after the date
of signature of the Deed of Sale.
We hereby, on behalf of our client, inform
you in terms of clause 12 of the Deed of Sale of your failure to comply with the
terms
of the Deed of Sale by not having paid the balance of the purchase price
and interest aforesaid and hereby demand that the outstanding
balance of the
purchase price and all interest due under the Deed of Sale be paid within 30
(Thirty) days from the date of receipt
by you of this letter.
Should you fail
to make payment of the whole balance of the purchase price and all interest due
under the Deed of Sale within 30 days
from the date of receipt by you of this
letter our
client
25
client shall, without prejudice to
any other rights available at law,
be entitled to summarily cancel the
said Deed of Sale.
Yours faithfully
TRUTER & WESSELS
per:"
(The reference to clause 12(d)(ii) was an error - it
should have been to
clause 4(d)(ii). Nothing
however turns on this mistake.)
The letter addressed to the plaintiffs at
Kronendal
Hotel was returned by the post office to the
sender, marked "Gone away - no
address left". The
copy of the letter addressed to the plaintiffs at
Uni-
cadia Flats was similarly returned. The copy addressed
to P 0 Box
781466, Sandton, which was at that time the
postal
26 postal address of Mrs. Orkin, was received by the plaintiffs:
by Armstrong on 15 March 1980, and by Mrs. Orkin on 18 March 1980.
On 15
April 1980, the defendant sent, by registered post to the plaintiffs, at the
various addresses set out therein, a letter in
the following terms:
"Our Ref: Mr Truter/ms/V86 15 April 1980
BY REGISTERED POST
Copies to:
Kronendal Hotel Room 5G
Pretorius Street PRETORIA 0002 and 402 Unicadia Flats 734 Park Street
ARCADIA, Pretoria 0083
Mr
27
Mr and Mrs Armstrong
P 0 Box 781466
SANDTON
2146
Dear Mr and Mrs Armstrong DEED OF SALE IN RESPECT OF FLAT NUMBERS
402,403,404,405,406,407,202, 203,204,205,305 and 304 UNICADIA FLATS
-CLIENT:
PHONE-A-COPY WORLDWIDE (PTY) LTD
We refer to the above matter and to our
letter of the 20th February, 1980. We have now been instructed by our client to
advise you,
as we hereby do, that our client has, as our client was entitled to
do, cancelled and hereby ex abundanti cautela again cancels the
above agreement
with you as you have failed to comply with the terms of the agreement in that
you failed to pay the outstanding balance
of the purchase price within 30 days
from date of receipt of our letter dated the 20th February, 1980 which
letter
was
28
was, as stated therein, a demand in
terms of clause 12 of the agreement.
We are forwarding a copy of this
letter to your attorneys, Messrs
Rooth & Wessels of Pretoria for their
attention.
Yours faithfully
TRUTER & WESSELS
per."
The letter addressed to P 0 Box 781466, Sandton was received by the
plaintiffs: by Mrs. Orkin on 21 April 1980, and by Mr. Armstrong
on 26 April
1980. The copies of the letter sent to the two other addresses were not
delivered but were returned by the post office
marked respectively "Gone away -
no address left" and "Unknown". This letter evoked the following reply:
"Mr
29
"Mr Truter/V86
Mr Van Zyl/mvv/381/80
13th May 1980
Messrs Truter & Wessels
P 0 Box
506
PRETORIA
0001
Dear Sirs
Phone-a-Copy Worldwide (Pty) Ltd / Mrs J M Orkin (previously
Armstrong
)
We are acting on behalf of Mrs J M Orkin who has handed us your letter of the
15th ultimo with instructions to reply thereto.
Our client denies having
received the demand provided for in Clause 12 of the agreement, and in
particular denies having received
the letter dated 20th February 1980 referred
to in your aforesaid letter. By virtue of your failure to give notice to our
client
as provided for in the agreement your client is not
entitled
30
entitled to cancel the agreement and the purported
cancellation contained in your aforesaid letter is hereby rejected.
We have also been instructed to, as we hereby do, request of you a detailed
statement showing the present balance outstanding. Kindly
acknowledge receipt
hereof and furnish us with the aforesaid statement at your earliest
convenience.
Yours faithfully GROBBELAAR & VAN ZYL Per N L van Zyl Messrs Unimart
(Pty) Ltd P O Box 1625 RIVONIA 2128 copy for your information."
Clause 12 of the agreement, which is set out above, entitled the seller to
summarily cancel the agreement
inter alia
should the purchaser fail to
pay any
monies
31 monies payable in respect of the purchase price. That
right to cancel was exercisable without notice,
It was, however, common cause that the
Sale
of Land on Instalments Act
,No 72
of 1971 applied to this transaction. (This Act was amended by the
Sale of
Land on Instalments Amendment Act
, No 49 of 1975, which came into force on 1
January 1976, which was after the date of the conclusion of the agreement of
sale and
it was agreed between the parties that Act No 72 of 1971 applied in its
unamended form.)
The 1971 Act provided in sections 4(1), 13(1) and 16:
"4. (1) A contract shall contain -
(a)
32
(a) the names of the purchaser and the seller and their addresses in the
Republic which shall serve as
domicilium citandi et executandi
for all
purposes of the contract."
13. (1) No seller shall, by reason of any
failure on the part of the purchaser to fulfil an obligation under the
contract, be entitled to terminate the contract or to institute
an action for
damages, unless he has by letter handed over to the purchaser and for which an
acknowledgement of receipt has been
obtained, or sent by registered post to him
at his last known residential or business address, informed the purchaser of the
failure
in question and made demand to the purchaser to carry out the obligation
in question within a period stated in such demand, not being
less than 30 days,
and the purchaser has failed to comply with such demand.
16
33.
16. Notice of change of an address
stated in a contract in terms of section 4(1)(a), shall be given in writing
and shall be delivered or sent by prepaid registered post
by one party to the
other."
It was held in Ma
haraj v Tongaat
Development
Corporation (Pty) Ltd
1976(4)
SA 994(A) that
1. Sec 13(1)
postulates two alternative methods of in
forming the
purchaser of any default on his part and
demanding that it be remedied within
the period
stated in the letter (being not less than 30 days):
(a) by handing the letter over to the purchaser and obtaining an acknowledgement
of receipt therefor; or
(b) by pending it by registered post to the purchaser at his last known
residential or business address.
The seller is
entitled to choose either one of the two alternative methods (at 1000 A-B)
2. The Legislature intended that, where the letter is
posted, it should
reach the purchaser, or, at least,
be made available to him at an address
where he is
likely
34
likely to be placed in possession thereof (at 1001C-D).
3. The period mentioned in the letter (being not less
than 30 days) begins to run from the date on which it is received by the
purchaser (at 1001 H).
In the present case, the letter sent to the plaintiffs at the Kronendal Hotel
(which in terms of s. 4(1) of the 1971 Act was for all
purposes of the contract
their
domicilium citandi et executandi
) was not received by them.
The
only letter which they did receive was that addressed to P 0 Box 781466 Sandton.
There is nothing in the special case to say that
P 0 Box 781466 Sandton was the
last known residential or business address. All that is said is that it was at
the relevant time the
postal
35 postal address of Mrs. Orkin. Does that mean that, even though it was
received by the plaintiffs, it was ineffective for the purpose
of s.
13(1)?
In
Nordvaal Konstruksie Maatskappy (Edms) Bpk v Booysen
1979(2)
SA 193(T), it was held at 196 G that the words in s. 13(1) and s. 16 of the Act,
as amended by Act No 49 of 1975, were couched
in peremptory terms, and that
strict compliance with the requirements of the sections was essential to the
cause of action of the
seller who relied on a cancellation of an agreement of
sale on instalments.
That case does not, however, bear on the question which
arises for decision here.
It
36
It is unnecessary for present purposes to consider whether the
whole of what is prescribed in the original sec. 13(1) in regard to
delivery of
the letter was peremptory. The only question for decision now is whether it was
peremptory in so far as it specified
"the last known residential or business
address".
It has been recognised by this Court on more than one occasion that
a statutory provision can be in part directory and in part peremptory.
See
Maharaj & Others v Rampersad
, 1964(4) SA 638(A) at 645 E-F.
No general rule can be laid down as to when a legislative provision is
directory only, and when it is
permptory
37
peremptory, with an implied nullification for
disobedience.
See
Leibrandt v South African Railways
1941 AD 9
at
12
in fine
. In that case DE WET CJ adopted the words
of LORD
PENZANCE in the case of
Howard v Bodington
2 P.O.
203:
"I believe as far as any rule is concerned, you cannot safely go further than
that in each case you must look to the subject-matter;
consider the importance
of the provision that has been disregarded and the relation of that provision to
the general object intended
to be secured by the Act; and upon a review of the
case in that aspect decide whether the matter is what is called imperative or
only directory."
(See also
Maharaj & Others v Rampersad
(
supra
) at 643
F-G.)
Adopting
38 Adopting this approach, I have come to the conclusion that
the provision as to the last known residential or business address"
was merely
directory.
The general object of sec 13(1) was to ensure that the purchaser
himself should be notified of his failure to fulfil an obligation
under the
contract and the time within which he is required to remedy it. (
Maharaj v
Tongaat Development Corporation (Pty) Ltd
(
supra
) at
1000-1001.)
There is no special significance in the "last known residential
or business address". It is merely the last address of which the seller
happens
to have knowledge, and it may not be the address of the purchaser
in
39
in fact. It is not necessarily the address which, in terms of
the contract read with s. 4(1)(a) of the 1971 Act, "shall serve as
domicilium
citandi et executandi
for all purposes of the contract". (See
Maharaj v
Tongaat Development Corporation
(
supra
) at 1001 C). Even if the
letter is posted to that address, it is ineffectual unless the purchaser himself
receives it. In providing
for the method (b), the Legislature contemplated the
possibility that a handing over to the purchaser might not always be possible
or
convenient. The alternative method was prescribed for the benefit of the seller
(ibid at 1000 G-H). Provided that the letter sent
by registered post is received
by the purchaser,
it
40 it is a matter of no consequence that it was not sent to his last known
residential or business address.
If, of course, the question of delivery of
the letter should be in issue, evidence that it was sent by registered post to
the purchaser's
last known residential or business address, and not returned,
would constitute
prima facie
proof of the delivery of the letter to the
purchaser (
ibid
at 1001 D). But where (as in the present case) delivery
is not in issue it is of no importance that it was not sent to that
address.
The conclusion is that the fact that the letter,
although
received by the plaintiffs, was not received at their last
known residential
or business address does not make it in
effectual
41
effectual.
It was submitted on behalf of the plaintiffs
that the letter dated 20 February 1980 did not comply with the requirements of
s. 13(1),
in that it did not inform them what they were required to do in order
to avoid the consequences of default; more specifically, they
complained that it
was not possible for them to establish or calculate the balance outstanding "in
respect of the purchase price
and all interest due under the deed of sale" to
enable them to comply with the demand.
What
42 What had to be ascertained was whether the conditions set out in s. 13(1),
on which the seller's right
to terminate the agreement of sale was dependent, had
been fulfilled. If the conditions had been fulfilled, then the right came
into existence. Cf.
Rautenbach v Venner
1928 TPD 26
at 30
in fine
.
It was only if the notice had been in such terms as to make it difficult for the
plaintiffs to understand the details of what was
demanded from them that it
might be said that they had not received such notice as was contemplated by the
section (
ibid
at 31).
In terms of s. 13(1) it was necessary for the
seller to inform the purchaser of the failure to fulfil any obligation under the
contract.
That it did:
it
43 it informed them of the failure to pay (as required by)
clause 12(d)(ii) - actually of clause 4(d) (ii), the balance of the purchase
price and interest. What that balance was, was as readily capable of
ascertainment by the purchasers as it was by the seller. The
seller demanded
that the purchasers carry out that obligation within the period of 30 days. When
they failed to comply with the demand,
the seller became entitled to terminate
the agreement.
The final question was whether the cancellation was premature,
and this can be shortly dealt with.
The period of 30 days prescribed by s.
13(1), began to run from 18 March 1980, and expired on 16 April
1980
44 1980. It was submitted on behalf of the plaintiffs that the
purported cancellation in the letter dated 15 April 1980 was, therefore,
premature, and this submission was upheld by the Court a
quo
. (See 1983
(3) SA at 891).
HOLMES JA observed in
Swart v Vosloo
1965(1) SA 100
(A) at 105 G that
"it must be taken as settled that, in the absence of agreement to the
contrary, a party to a contract who exercises his right to cancel
must convey
his decision to the mind of the other party; and cancellation does not take
place until that happens."
Consequently, although the letter of cancellation was posted before the
expiry of the period of
30
45 30 days, it did not take effect until it was received by Armstrong
on 26 April 1980, which was after the period had expired. The
cancellation was
accordingly not premature.
The agreement of sale was, therefore, validly
cancelled, and the plaintiffs should not have succeeded in their action. As a
result
the order made by the Court a
quo
must be set aside.
The appeal
is upheld with costs, including the costs of two counsel. The order made by the
Court a
quo
is set aside, and there is substituted therefor an order
dismissing the plaintiffs' claims with costs, including the costs of two
counsel.
H C
46
H C NICHOLAS AJA JANSEN, JA
MILLER, JA )
VAN HEERDEN, JA )Concur GALGUT, AJA )