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[1988] ZASCA 121
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Liebenberg v Neville and Another (120/88) [1988] ZASCA 121 (29 September 1988)
35
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between:
JOHANNES AUGUSTINUS LIEBENBERG
Appellant
and
ARTHUR MICHAEL NEVILLE
1st Respondent
JOEL MELAMED N.O.
2nd Respondent
CORAM:
CORBETT, GROSSKOPF,SMALBERGER, MILNE, JJA et NICHOLAS, AJA
HEARD:
8 September 1988
DELIVERED:
29 September 1988
JUDGMENT GROSSKOPF. JA
Mr. A.M. Neville, the first respondent
herein, and Mrs. E.M. Smit were the sole shareholders in a company called Wall
Street Properties
(Proprietary) Ltd. On 8 June 1979 they en-tered into a
contract with the appellant, which was later
2
amended by an addendum dated 19 June 1979. The contract
embodied two
agreements of sale. The first was a sale to the
appellant by Mrs. Smit and
Mr. Neville of their shares in the
company and the shareholders' loan
accounts. The second was a
sale by the appellant of a farm Appelsdrift in the
district of
Robertson to Mrs. Smit. The purchase price of the shares
and
the loan accounts was R60 000,00, which was to be abated by
R24 000,00
being the amount owing under an existing mortgage bond
which was to continue
being the obligation of the company. The
balance of R36 000,00 was to be set
off against the price payable
by Mrs. Smit for the farm Appelsdrift, as will
be seen below.
The purchase price of the farm was R114 000,00.
This
amount was payable as follows (I quote from
clause 18 of the
contract as amended):
" a) By the set off of the amount of R36,000-00
(THIRTY-SIX TH0USAND RAND) being the balance of the purchase price of the
shares referred to above.
b) Payment of the sum of R10,000-00 (TEN
TH0USAND
RAND) shall be due and payable by not later than the 31st JULY, 1979 and
3
Rl,000-00 (ONE THOUSAND RAND) shall be due and payable on the 31st AUGUST,
1979.
c) Ethel Margaret Smit shall take over the First Bond with the Landbank for
an amount of R67,000-00 (SIXTY-SEVEN TH0USAND RAND) and
shall pending transfer
into the name of Ethel Margaret Smit pay to the said Landbank the sum of
R7,500-00 (SEVEN TH0USAND FIVE HUNDRED
RAND) per year in reduction of the Bond
and the PURCHASER records that the said amount is the only amount payable by the
PURCHASER
to the Landbank."
(The reference to the "purchaser" is, somewhat
confusingly, a reference to the appellant who was the purchaser
of the
interest in the company, but was the seller of the farm).
After conclusion of the contract, various
problems
arose concerning the sale of the farm. I
shall have to deal
with the facts in somewhat greater detail later, but at
present
it suffices to say that disputes arose,
inter alia
, about
the
manner in which payment was to be effected by Mrs. Smit. The
outcome
of the matter was that Mrs. Smit never received transfer.
On 6 August 1981 the appellant sold the farm to a third
party. Transfer
was passed to the new purchaser on 20 June
4 1982.
Mrs. Smit died on 10 March 1981, and the second respondent is the
executor in her deceased estate.
The two respondents instituted action in the
Witwatersrand Local Division for an order compelling the appellant to pass
transfer of
the farm against payment of the purchase price, and, in the
alternative, an order compelling the appellant in effect to return what
had been
delivered or paid by Mrs. Smit and the first respondent pursuant to both
agreements of sale embodied in the written contract.
In this alternative claim
the respondents relied on clause 19 of the contract, which made specific
provision for restitution in certain
circumstances. I come to this clause
later.
At the trial before PREISS J the respondents abandoned their claim for
specific performance, and proceeded solely with their alternative
claim based on
clause 19.
PREISS J held that it was unnecessary to decide whether clause 19
was applicable. He decided the case on the simple
5 basis that the entire
contract had come to an end at the latest when the appellant sold the farm to
the third party, and that, in
the absence of a forfeiture clause, the
respondents were entitled to
restitutio in integrum
. In this way the
respondents obtained an order for exactly the same relief as they had claimed
under clause 19, viz., an order directing
the appellant to deliver to the
respondents a resolution of the directors of the company in terms of which the
control of the company,
with the books, documents and records of the company,
all necessary resignations by existing officers of the company and the formal
cession of the loan accounts would be transferred from the appellant to the
respondents; and an order directing the appellant to
pay the second respondent
the amount of R18 500,00 with interest at 12% per annum. With the leave of the
court a
quo
the appellant now comes on appeal to this Court.
A
substantial part of the appellant's heads of argument was devoted to the
questions whether the court
a quo
was entitled to decide the case upon a
basis which had not been pleaded, and
6
whether, in any event, its decision was correct even on that
basis.
However, these questions arise only if it were to appear
that the respondents did not establish their case as pleaded,
viz. that
they were entitled to relief pursuant to clause 19 of
the contract - a matter which the court
a quo
expressly left
open.
In my view this appeal can be best decided by determining
the disputes as
defined in the pleadings, and to this I now turn.
The cause of action pleaded by the respondents
was
based, as I have said, upon clause 19 of the
contract. I quote
this clause as amended by the addendum, and also as it
should,
by common consent, be rectified. Moreover I have added
explanatory
words in brackets to make it more easily
understandable. As altered in this
fashion it reads as
follows:
"It is recorded that in the event of Ethel Margaret Smit not being able to
obtain transfer of the FARM into her name within 2 (TWO)
years of the EFFECTIVE
DATE (8 June 1979) through no fault of her own, then and in such event the
SELLERS (i.e., Smit and Neville)
shall be entitled at their option to cancel
this Agreement in which event:— a) Ethel Margaret Smit shall immediately
vacate
7
the farm and redeliver possession thereof to the PURCHASER (i.e.,
appellant).
b)
The PURCHASER (appellant)
shall immediately effect transfer of the shares in the COMPANY back into the
name of the SELLERS (Smit and
Neville) and in this event the provisions of
Clauses 4, 5 and 6, hereinbefore set out, shall apply to such retransfer mutatis
mutandis
(these clauses deal with the formalities required to pass control of
the company from the appellant to the respondents).
c)
In the event of the PURCHASER (appellant) having bound himself as
Surety and co-principal debtor for the repayment of the amount due
in terms of
the existing Mortgage Bond over the fixed property (i.e., the property of the
company), the SELLERS (Smit and Neville)
shall procure the release of the
PURCHASER (appellant) as surety on behalf of the COMPANY in respect of the
Mortgage Bond above referred
to.
d)
The
PURCHASER (appellant) shall refund to Ethel Margaret Smit the sum of Rll,000-00
(ELEVEN TH0USAND RAND) plus all monies paid by
Ethel Margaret Smit to the
Landbank in respect of the farm plus interest thereon calculated at the rate of
12% (TWELVE PER CENTUM)
per
annum."
The respondents' case was that Mrs. Smit had taken
all
necessary steps to obtain transfer of the farm
in her name, but
that, through no fault of her own, she was unable to
obtain
8 transfer within two years of 8th June 1979. Thereafter, so it was
alleged, both respondents had cancelled the contract. They accordingly
claimed
the remedies provided by clause 19.
The defendant denied that Mrs. Smit's
failure to obtain transfer occurred through no fault of hers, and pleaded
specifically "dat
die oorledene (i.e., Mrs. Smit) nie haar verpligting in terme
van die kontrak nagekom het nie en as gevolg hiervan is die eiendom
nie op haar
naam geregistreer nie". In particular, it was contended, Mrs. Smit had failed to
pay the purchase price properly in terms
of the contract. The validity of the
appellant's contention depends largely on an interpretation of clause 18 of the
contract to
determine Mrs. Smit's obligations thereunder. To this I now
turn.
Paragraphs a and b of clause 18 gave rise to no difficulties and for
present purposes I need say no more about them. The nub of the
case is paragraph
c. This paragraph provides that Mrs. Smit "shall take over" a bond with the Land
Bank for R67 000,00, being the
balance of the purchase price.
9 In ordinary
parlance this means that Mrs. Smit would assume the appellant's rights and
obligations under the bond. This would obviously
have required the consent and
co-operation of the Land Bank and compliance with all deeds office requirements.
In argument before
us it was common cause that the only way in which Mrs. Smit
could "take over" the bond in this sense was by the cancellation of the
appellant's existing bond and the simultaneous registration of a bond in Mrs.
Smit's name (cf. the use of the expression "oorneem"
in the same sense in
Van
Jaarsveld v. Coetzee
1973 (3) SA 241
(A) at p. 244 A). On this
interpretation the contemplation of the parties was that Mrs. Smit would pay a
substantial part of the
purchase price (being R67 000,00 less any annual amounts
of R7 500,00 which may have been paid pursuant to the latter part of paragraph
c
pending registration of transfer) out of an advance from the Land Bank. It is
interesting to note that, as shown above, the appellant
also obtained the
benefit of an existing bond as an abatement of the purchase price payable by
him.
10 Mr. Wulfsohn, who appeared for the appellant, placed an entirely
different construction on the expression "take over" in paragraph
c. The
parties' intention was, he said, that Mrs. Smit should accept responsibility for
the appellant's financial obligations under
the bond. That meant that she was
not only obliged to pay the annual instalments of R7 500,00 pending registration
of transfer, for
which provision was expressly made in the paragraph, but that
she should also settle the amount owing under the bond when she obtained
registration of transfer. On this interpretation the expression "take over the
First Bond" was equivalent to "pay the amounts due
under the First Bond". As a
matter of language this seems a most unlikely construction. If the parties had
intended to stipulate
merely that payment of these amounts was to be made to the
Land Bank rather than to the appellant personally it would have been very
easy
to say so directly. During the argument there was some debate on whether this
provision had been conceived in favour of Mrs.
Smit or of the appellant. Mr.
Wulfsohn was inclined at
11
first to accept that it was conceived for her benefit, but later contended
that it served both parties' interests. However, on the
interpretation espoused
by him the provision does not seem to benefit her at all. The nett effect of
clause 19 (c) would then be
that Mrs. Smit was required to pay the amount of R67
000,00 in cash against transfer (I leave out of account the annual amounts of
R7
500,00 which were payable even before transfer). This represents her normal
common law obligation and she is hardly benefited
by having to pay the Land Bank
instead of the appellant direct. But be that as it may, purely as a matter of
language I do not think
Mr. Wulfsohn's construction can be accepted.
I turn
now to the facts of the case in order to determine whether, in the light of my
above interpretation of clause 18 (c), Mrs.
Smit's failure to obtain transfer
was "through no fault of her own" for the purpose of clause 19. It appears that
some time after
the conclusion of the contract Mrs. Smit went to the Land Bank
accompanied by her husband, her
12
attorney, the appellant, the appellant's son and the appellant's
attorney.
This was in the first half of 1980 but the exact date
is not clear. The purpose of the visit was, according to Mr.
Smit, to ask
the Land Bank "... if there was any chance of them
granting the bond from Mr.
Liebenberg (the appellant) to my
wife". The officials at the Land Bank
refused because Mrs. Smit
was not a
bona fide
farmer. Thereupon Mrs.
Smit decided to
obtain finance elsewhere. On 9 July 1980 her attorneys
wrote
as follows to the appellant's attorneys:
"We confirm our various telephonic discussions with you and confirm that our
client, Mrs E.M.Smit, is most anxious that transfer
of the property be
registered as a matter of extreme urgency.
A bond has been granted by Volkskas in Durban and we require to know the amount
owing to Landbank so that the necessary guarantees
may be raised.
Would you please prepare the transfer documents as a matter of urgency and
forward all documentation to us for signature by our client.
Would you also kindly address a letter to Volkskas Bpk, Durban, (Attention Mr
Foster) in order to obtain the necessary guarantees.
It is also most urgent that a meeting be held between
13 us 80 that the matter can be finalised."
After
some further correspondence Mrs. Smit's attorneys again wrote to the appellant's
attorneys on 22 July 1980 setting out the amounts
owing under the contract of
sale according to their calculations. On 28 July 1980 the appellant's attorneys
replied, disputing the
correctness of the calculations in the letter of 22 July
1980 and stating the amounts which they contended were owing. After some
further
delay, caused by matters which are not relevant for present purposes, Mrs.
Smit's attorneys wrote on 9 October 1980 to the
effect that Mrs. Smit was
prepared to arrange for a bank guarantee payable against registration of
transfer of the property into
her name for the amounts claimed by the appellant,
although the correctness of the amounts was not conceded. On 29 October 1980
Mrs.
Smit's attorneys duly sent a bank guarantee issued by Volkskas in favour of
the appellant's attorneys for the amounts claimed by
the appellant. In addition
a cheque for R4 157,65 was sent for the costs of transfer, tansfer duty, etc.,
which was in accordance
14
with an account submitted by the appellant's attorneys. On
13
November 1980 the appellanf's attorneys replied, acknowledging
receipt
of the guarantee and the cheque, but raising a number of
objections. Only the following are still persisted in:
"1. In terme van Klousule 18(c) van die
Koopkontrak moet u klient die verband van Landbank ten bedrae van R67 000-00
oorneem en moet u klient ook jaarliks 'n bedrag van R7
500-00 aan Landbank
betaal ter vermindering van die verband.
2.
U kliënt is dus bewus
van die feit dat die waarborg aan Landbank uitgereik moet word en nie aan ons
firma nie.
3.
Vir u informasie heg ons hierby
aan 'n foto-afskrif van 'n brief van Landbank gedateer 4 November 1980 en omrede
u kliënt nie
sy verpligtinge nagekom het nie, dit is om R7 500-00 aan
Landbank te betaal, moet u klient nie kla as Landbank die verband oproep
nie.
Ons heg hierby aan die waarborg wat u aan ons gestuur het en ons stel voor dat u
'n waarborg uitreik aan Landbank vir die bedrag
aan hulle verskuldig nadat u
klient
R7 500-00 aan Landbank betaal het in terme
van sy kontrak."
On 2 December 1980 Mrs. Smit's attorneys returned
the
guarantee under cover of a letter which, in so
far as it is
15
relevant, reads as follows:
"We return herewith the guarantee. Our client's obligation in terms of the
agreement, was to supply the Seller or his agent being
yourselves, with a
guarantee for the amount of the purchase price.
A guarantee for the amount in excess of what our client regards as the balance
of the purchase price is at-tached hereto and is in
fact the original guarantee
which was forwarded to you some time ago."
To this the appellant's attorneys replied as
follows
on 12 December 1980:
"Ons het u gevra om die waarborg uit te reik ten gunste van Landbank en
klaarblyklik is u en u klient nou hardekwas ten spyte daarvan
dat die kontrak
uitdruklik bepaal dat u klient die Landbank Verband sal
oorneem."
Finally, on 12 January 1981,
Volkskas wrote to the ap-
pellant's attorneys asking for the return of the guarantee since
Mrs. Smit
was not proceeding with the transaction. The
appellant's attorneys complied
with the request on 15 January
1981. On 4 March 1981 they also returned the money paid in
respect of costs of transfer. On 6 August 1981, it will be
16 recalled,
the appellant sold the farm to a third party.
The question then is whether on
these facts Mrs. Smit's inability to obtain transfer arose "through no fault of
her own" within the
meaning of clause 19 of the contract. There are two aspects
to this question, namely whether she was at fault in any respect, and,
if so,
whether such fault was a cause of her inability to obtain transfer. The
appellant contended throughout that Mrs. Smit had
been at fault in two respects,
namely in failing to pay an instalment of R7 500,00 to the Land Bank in terms of
clause 18(c) of the
contract, and by furnishing a guarantee in favour of the
appellant's attorneys rather than in favour of the Land Bank.
I deal first
with the matter of the R7 500,00. It is clear from clause 18(c) of the contract
that the instalments con-stituted payments
in respect of the capital amount of
the bond. Mrs. Smit paid a first amount of R7 500,00 shortly after the
conclusion of the contract.
The appellant contended that Mrs. Smit should have
paid a further instalment on 7 June 1980, which date was later extended to 31
July 1980. He had demanded,
inter
17
alia
in his attorneys'
letters of 28 July 1980, 10 September 1980, 30 September 1980, 14 October 1980
and 13 November 1980, that she pay
this amount to the Land Bank without delay.
However, at the time when these demands were made Mrs. Smit was insisting on
immediate
transfer, and she preferred to treat the instalment as a part of the
purchase price to be included in the amount of the guarantee.
Her reason for
this was not spelled out, but presumably she was loath to pay any further part
of the purchase price otherwise than
against transfer of the property.
And it
should be emphasized that this dispute did not relate to the amount of the
purchase price, but only to the manner in which
the instalment of R7 500,00 was
to be paid. If transfer had been effected speedily, the payment of the
instalment would have been
unimportant, since the whole amount of the Land
Bank's bond would in any event have had to be paid on or before registration of
transfer
in Mrs. Smit's name. In these circumstances the failure to pay the R7
500,00 direct to the Land Bank could hardly have been a reason
why the appellant
would have refused to pass
18
transfer if he had been otherwise satisfied with the arrangements for
the payment of the balance of the purchase price. Indeed, the
evidence makes it
clear that the real reason why transfer was not passed was that the appellant
was not satisfied with the nature
of the guarantee which Mrs. Smit had provided.
I did not understand Mr. Wulfsohn to contend otherwise. It follows that, even if
Mrs.
Smit had been at fault in not paying the instalment of R7 500,00 to the
Land Bank, this fault was not a cause of her inability to
obtain transfer.
I
turn now to the alleged inadequacy of the guarantee, and propose first setting
out briefly the relevant legal principles. It is
a trite principle of the law of
contract that the person to whom a debtor must make payment is the creditor or
his agent, unless
the contract itself provides otherwise. See De Wet and Yeats,
Kontraktereg en Handelsreg, 4th ed., p. 234.
The creditor may instruct the
debtor to make payment to somebody else, and in such a case the debt will be
discharged if payment is
made to such a person, but a debtor is not compelled to
accept
19 the creditor's instruction. (ibid.) In a sale of immovable property
where payment has to be made against transfer it is customary
to tender payment
by way of a guarantee, usually a bank guarantee, that the money will be paid
against transfer. See
Breytenbach v. Van Wijk
1923 AD 541at
pp.546-7;
Hammer v. Klein & Another
1951(2) SA 101 (A) at p. 105 E to H; and
Linton v. Corser
1952(3) SA 685 (A) at p. 694 A to F. In accordance with
the general principles mentioned above, the guarantee should be in favour
of the
seller or his agent unless the contract stipulates otherwise. If the seller
instructs thê purchaser to furnish a guarantee
in favour of some other
person the purchaser may, but need not, follow the instruction.
The
appellant's main argument on this aspect of the case was that clause 18 of the
contract required Mrs. Smit to pay the balance
of the purchase price to the Land
Bank, and not to the appellant. This was derived from the phrase "shall take
over the First Bond
with the Landbank", which, as I have said, the appellant
interpreted as meaning that she was to accept
20
responsibility for the appellant's financial obligations under the
bond. For the reasons I have given, I do not agree with this interpretation.
In
my view the contract contemplated that the Land Bank would grant Mrs. Smit a
loan secured by a bond over the property. This did
not happen. The consequence
of the Land Bank's refusal to grant a loan may well have been that per-formance
of the contract in the
manner contemplated by the parties became impossible.
Since this happened through no fault of Mrs. Smit's, she could possibly have
adopted the attitude that the Land Bank's refusal was in itself sufficient
reason for claiming the remedies provided by clause 19.
I need not pursue this
matter because Mrs. Smit accepted that she was still bound to pay the purchase
price, which she tendered to
pay to the appellant's attorneys. This, in my view,
she was clearly entitled to do. On the construction I place on the contract,
the
Land Bank fell out of the picture entirely when it refused to grant Mrs. Smit a
loan. Moreover, the provision that she "take
over" the bond was, on the
construction I have placed on
21
it, clearly one in her favour. See
Van Jaarsveld v. Coetzee
(
supra
) at p. 244 C-G. When the provision became impossible of
fulfilment, she was entitled to waive it and perform her obligations in the
normal manner, i.e., by payment direct to the appellant or his agent. Despite
some prevarication in the evidence by Mr. Mills, the
appellant's attorney, it is
clear from the record that his firm, in whose favour the guarantee was issued,
was authorized to accept
payment on the appellant's behalf.
It follows that
the appellant's refusal to accept this tender was unjustified. It was this
refusal which resulted in Mrs. Smit's not
obtaining transfer. Since she had
always acted within her rights, as I have held, it follows that this happened
through no fault
of her own. All the requirements of clause 19 were accordingly
satisfied.
In an alternative argument Mr. Wulfsohn contended that, even if
clause 18(c) did not require payment to be made to the Land Bank,
the appellant
was, in accordance with general
22
principles, entitled to nominate the person to whom payment should be
made, and he had so nominated the Land Bank. I have set out
the relevant legal
principles above, and their effect is that Mrs. Smit was not obliged to pay the
Land Bank merely because the appellant
gave an instruction to this effect. It
follows that also on this approach her failure to make payment to the Land Bank
cannot be
considered a "fault" on her part.
In my view all the requirements
for the invocation of clause 19 were accordingly present and the respondents
were entitled to claim
relief thereunder. The order granted by the court
a
quo
was, as I have said, in accordance with the clause. Nevertheless, the
appellant's counsel argued that an order in this form should
not have been
granted, for the reasons to be considered in the next paragraph.
In paragraph
11 of their Particulars of Claim the respondents alleged that the appellant had
failed to comply with the provisions
of clause 19(b) and (d) of the contract,
more particularly in that he had faíled to deliver to the respondents
23
the documents which would (I paraphrase) serve to vest the loan
accounts
and the control of the company in the respondents. The
appellant admitted
this in his plea, but added:
"... verweerder pleit in elk geval dat verweerder nie in staat is en ook nie
regtens verplig is om die dokumente soos gesmeek, aan
eisers te verskaf
nie."
Apropos of this allegation the appellant
stated in further particulars that he was no longer owner of the shares in the
company.
No evidence was led on this issue. Nevertheless Mr. Wulfsohn argued
that the court
a quo
should not have ordered the delivery of the
documents, because, he said, "the orders ad
factum praestandum
compelling
the (appellant) to do what he was unable to do would be a
brutum fulmen
,
as
lex non cogit ad impossibilia
." (I quote from the written heads of
argument).
Of course, since no evidence was led, we do not know whether the
appellant really was unable to carry out the orders
ad factum
praestandum
. The first question which arises on this argument is accordingly
where the
onus
lies to establish
24
impossibility of performance. Impossibility of performance can, under
certain circumstances, result in the discharge of contractual
obligations, and
it is clear law that the person relying on such impossibility bears the
onus
of proving it. See Supervening Impossibility of Performance in the
South African Law of Contract by W.A. Ramsden, pp. 53 and 103;
Pothier,
Obligations, para 620;
Frenkel v. Ohlsson's Cape Breweries Ltd
1909 TS
957
at pp. 963-5 and 973;
New Heriot Gold Mining Company Limited v. Union
Government (Minister of Railways and Harbours)
1916 AD 415
at pp. 433, 438
and 462;
Hoffend v. Elgeti
1949(3) SA 91 (A) at p. 104; and
Grobbelaar
N 0 v. Bosch
1964(3) SA 687 (E) at p. 691 C-E.
I did not, however,
understand Mr. Wulfsohn to contend that the appellant's alleged inability to
deliver the documents was of such
a nature as to entirely extinguish his
obligations under the contract. His point was, if I understood him correctly,
that the court
should not, in the exercise pf its discretion, have ordered
specific performance of the appellant's
25
obligation under clause 19 to deliver the said documents. This
is
the type of case which HEFER JA had in mind when he said:
"... the Court will not decree specific performance where performance has become
impossible. Here a distinction must be drawn between
the case where
impossibility extinguishes the obligation and the case where performance is
impossible but the debtor is still contractually
bound. It is only the latter
type of case that is relevant in the present context, for in the former the
creditor clearly has no
legal remedy at
all."
(
Benson v. S.A. Mutual Life Assurance
Society
1986(1) SA 776 (A)
at p. 783 E-F). The incidence of the
onus
of proof in cases
where impossibility is relied upon to defeat a
claim for specific
performance was discussed fully by MILLER JA when he
delivered
the judgment of the court in
Tamarillo (Pty) Ltd. v. B N
Aitken
(Pty) Ltd
1982(1) SA 398 (A) at pp. 441 C to 443 G.
Without
coming to a firm conclusion on the incidence of the
onus
in
the
strict sense of the word, MILLER JA stated that the party relying
on
alleged impossibility
"certainly bore the burden of alleging impossiblity and adducing evidence in
support thereof - evidence of the facts or circumstances
upon which it asked the
Court to exercise its discretion against the grant of
the
26
order prayed." (at p. 443 G).
In the present case
the appellant adduced no evidence in support of his allegation of impossibility
of performance. It follows that
the court
a quo
was fully entitled to
decree specific performance of his obligations under clause 19.
In the result
the respondents have, in my view, established all the requirements for relief
under clause 19 of the contract, and no
reason has been shówn why the
Court
a quo
should not have granted the order which it did. It is
accordingly not necessary to consider whether the court's reasons for reaching
this result can be supported.
The appeal is dismissed with costs, including
the costs of two counsel.
E M GROSSKOPF, JA
CORBETT, JA
SMALBERGER, JA
MILNE, JA Concur NICHOLAS, AJA