SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 7634/2023
(1) REPORTABLE: YES/ NO
(2) OF INTEREST TO THE JUDGES: YES/ NO
(3) REVISED.
DATE: 07 JULY 2025
SIGNATURE
In the matter between:
MELANIE BALATINCZ APPLICANT
(Passport No: P[...])
AND
ANDRIES JOUBERT COETZER N.O
(Appointed executor of the deceased estate of Susara
Margaretha Allman (Jacobs ) FIRST RESPONDENT
PETRONELLA GERTINA VOSLOO N.O SECOND RESPONDENT
DAWIE RUS (PTY) LTD
2019/216715/07 THIRD RESPONDENT
RUDOLPH MATHINUS JACOBS FOURTH RESPONDENT
BA-PHALABORWA MUNICIPALITY FIFTH RESPONDENT
THE REGISTRAR OF DEEDS (LIMPOPO) SIXTH RESPONDENT
JUDGMENT
MANGENA AJ
INTRODUCTION
[1] The applicant who is an Australian Citizen sincerely believes that she concluded
a valid and binding agreement with the third respondent for the purchase of a
farm known as Portion 23 Grietje NR 6, Phalaborwa, Limpopo Province held
under title deed T[...] . The property is used as a private nature reserve. The
agreement, according to the applicant was concluded on 23 May 2023 .
[2] She instituted this proceedings to obtain a declaratory order to the effect there is
a written sale agreement concluded between her and the third respondent. In the
alternative to the declaratory order, she seeks an order to rectify the signed offer
to purchase concluded between her and the third respondent to reflect the expiry
date in clause 25 to read 23 May 2023 instead of 10 M ay 2023 .
[3] The third respondent, Dawie Rus (Pty) Ltd , opposes the relief sought by the
applicant on the basis that there is no valid and binding agreement concluded
between them. This is so, according to Davie Rus , because the agreement
signed on 23 May 202 3 was not capable of acceptance in that it contained a
“suspensive condition ” in clause 25 which stated that the offer was
“irrevocable and expires on 10 May 2023 at 22h00 ”. It is therefore not legally
possible to accept an offer that has lapsed. Once the suspensive condition is not
met the entire agreement becomes null and void and consequently of no legal
force and effect.
[4] Dawie Rus further contends that once an agreement lapses due to non -fulfilment
of a suspensive condition it cannot be revived and or rectified.
[5] What is at the heart of the dispute is whether there is a legally valid and binding
agreement concluded between applicant and the third respondent. To answer
this question some background facts will be necessary to provide context.
BACKGROUND
[6] The applicant visited South Africa on few occasions to view properties which
were on sale. One of the properties she viewed was Portion 23, Grietje Farm
NR 6 marketed by Century 21 Wildlife Properties . The estate agent she dealt
with at Century 21 was Ms Michelle Severin . I hasten to mention that the
property belonged to the late Susara Margaretha Allman (Jacobs) who had
since died. The mandate to market the property was signed by the second
respondent who was the daughter of the deceased. I will deal with her authority
to represent the estate later.
[7] On the 14 February 2023 , applicant made an offer to purchase t he property for
R2 400 000.00 . The offer was not accepted. She made another offer of
R3 000 000.00 on the 19 March 2023 and it suffered the same fate in that it was
not accepted.
[8] On the 30th March 2023 she received what she calls a “ counter -offer ” in resp ect
of the same property. The “ counter -offer ” was signed by the second respondent
purportedly as the representative of the estate late Susara Margaretha Allman
(Jacobs) . She did not accept this offer.
[9] She viewed the property again in May 2023 and informed the estate agent that
she was still keen to acquire the property. On the 10 May 2023 she received a
new offer to purchase signed by the second respondent as ""the seller"" acting
on behalf of the estate late Susara Margaretha Allman (Jacobs) . The offer
came through the agency of Century 21 Wildlife Properties and contained a
clause 25 with a heading “ Expiration ”. It provided as follows: -
“This offer is irrevocable and expires at 22h00 on 10 May 2023 and shall be
deemed to be accepted on signature hereof b y the seller irrespective of when
notification thereof is given to the purchaser ”.
[10] Determined not to loose the property, she signed the offer to purchase and
returned it to the estate agent the same day before the cut -off time of 22h00 .
With this “ accepta nce” she thought that the deal is sealed, and the farm has
been secured. However, she thought wrong as what transpired thereafter
testifies.
[11] On the 11 May 2023 she received an email from the estate agent advising that
there were errors on the offer to pur chase which needed to be corrected. The
errors were picked up by the first respondent who was instructed to attend to the
transfer of the property from the deceased estate. According to the attorney, the
offer to purchase was to be amended to reflect Dawie Rus (Pty) Ltd as the seller
and have one of its authorised representatives sign on its behalf.
[12] On enquiry by the estate agent whether the parties (Dawie Rus (Pty) Ltd and the
applicant) were required to sign a new contract, the first respondent advised t hat
same was not necessary. The old offer to purchase could be amended and have
both parties initial along side the effected amendments. She received an
amended page reflecting Dawie Rus (Pty) Ltd as the seller, initialled it and sent
it back to the agent via email.
[13] On the 15 May 2023 , the first respondent confirmed acknowledgement of the
signed offer to purchase and issued an invoice in respect of the transfer costs
payable by the applicant. He also furnished confirmation of the banking details
for the payment of the agreed total purc hase price of R3 600 000.00 .
[14] Acting in belief that there is a valid and binding agreement concluded between
her and the seller of the property, she proceeded to conduct borehole tests in
preparation for taking full ownership.
[15] She later learned that there is asbestos on the property and asked that the seller
removes it at its own costs. The seller refused to be liable for the costs of
removal and threatened to pull out of the contract on the basis that the estate
agent misrepresented the facts regarding th e existence of asbestos on the
property as she knew that it was there. The first respondent was of the view that
there was no binding agreement.
[16] On the 19th June 2023 , applicant addressed an email to the first respondent
once again highlighting the breach of contract on the part of the seller and
requesting that it be remedied. She further enquired whether she is still required
to transfer the full purchase price and if so when should same be done.
[17] Matters came to the head on 22 June 2023 when the first r espondent
addressed a response email to the applicant wherein he stated as follows: -
“We refer to your letter [dated] 19 June 2023 and wish to confirm
that there is no legal agreement and therefore our instruction is not
to proceed with any transfer and not to accept any payment ”.
[18] Against this background, two issues arise for legal determination. The first one is
the authority of the second respondent to bind the estate of the late Susara
Margaretha Allman (Jacobs) . As stated earlier, the second respond ent is the
daughter of the deceased and the beneficiary or heir of the estate. She is not the
appointed executor of the estate. In our law, only a duly appointed executor can
act on behalf of the deceased estate. In Segal and Another v Segal and
Others, 19 76(2) SA 531( c) the court put the position as follows: -
“In our law the executor is the person in whom, for administrative
purposes, the deceased’s estate vests. It is his function to take all
such steps as it may be necessary to ensure that the heirs i n the
estate to which he is appointed received what in law is due to
them” .
(See also Jones v Pretorius No, 2022(1) SA 132(SCA) at par 15)
[19] The second respondent had no authority to make an offer to the applicant
regarding the sale of the property. The pu rported offer by the second respondent
and the subsequent acceptance by the applicant is of no legal force and effect as
it was not capable of producing a legally valid and binding contract.
[20] The second issue is whether a valid and binding contact came into existence
between the applicant and the third respondent, Dawie Rus (Pty) Ltd on 23 May
2023 despite the fact that clause 25 required the offer to be accepted by 22h00
on 10 May 2023 .
[21] Both parties approached the matter on the common footing that clause 25 is a
suspensive condition. It was only at the hearing of the matter that Advocate Du
preez for the applicant submitted that properly construed, clause 25 is not a
suspensive condition. I a gree.
[22] A suspensive condition is a condition in a valid and binding agreement concluded
between the parties. Its effect is to suspend the full operation of the obligations
and renders it dependant on the uncertain future event. Put differently, a contract
which is subject to a suspensive condition is a valid contract from the moment of
its conclusion and neither party can unilaterally resile from it. (See Lawsa, vol 9,
par 362).
[23] In Mia v Vermark Holding (Pty) Ltd [2010] 1 All SA 280(SCA) Wallis AJA (as
he then was) explained the legal effect of a suspensive condition as follows: -
“The conclusion of a contract subject to a suspensive condition
creates a very real and definite contractual relationship between
the parties. Pending fulfilment of the su spensive condition the
exigible content of the contract is suspended. On fulfilment of
the condition the contract becomes of full force and effect and
enforceable by the parties in accordance with its terms. No
action lies to compel a party to fulfil a sus pensive condition. If it
is not fulfilled the contract falls away and no claim for damages
from its failure”.
[24] Considered against the above legal exposition, it is clear that clause 25 of the
signed agreement between the parties does not qualify to be regarded as a
suspensive condition. This is so because it does not suspend the operation of a
valid and binding agreement between the parties. Secondly it does not render the
contract dependent on any uncertain future event. In the absence of a valid an d
binding agreement there are no contractual obligations to be suspended as there
is no legal relationship between the parties. That the parties chose to call it a
suspensive condition is of no legal significance and I am free to disregard that
erroneous c haracterization. It is a legal misnomer and it is not binding on me. To
conclude on this point, I can do no better than to quote Salduker AJA (as she
then was) in De Klerk v Steven -Lee Properties (Pty) Ltd 2013 SACLR 123(A)
where she said that “the most im portant characteristic of a (suspensive) condition
is that it relates to a future uncertain event. In Design and Planning Service v
Kruger, 1974 (1) SA 689(T) at 695, Botha J stated as follows: -
“In the case of a suspensive condition, the operation
of the obligations flowing from the contract is
suspended, in whole or in part, pending the
occurrence or non -occurrence of a particular
specified event ……….. para 9”.
[25] In my view, clause 25 of the agreement constitutes a term of the agreement and
does not have the effect of nullifying the agreement. In the context of this case, it
could not have been the intention of the parties to have the contract concluded
on date whi ch had passed. This is so because the first respondent who was the
agent of the third respondent had on behalf of his client expressed satisfaction
with the material terms of the agreement in respect of the purchase price and the
subject property on a date after 10 May 2023 . There was a common
understanding between the parties that the sale has been concluded subject to
the signing of the contract by the authorized representative of the company.
When the fourth respondent signed the offer to purchase on 23 May 2023 on
behalf of the third respondent, he did so in fulfilment of the representations made
by his attorney as well as in execution of the resolution of the company that
mandated and authorized him to conclude the contract on the terms as contained
in the offer to purchase.
[26] Another reason why clause 25 is irrelevant to the issue regarding the validity of
the contract is that it was not inserted by any of the parties to the contract
concluded on 23 May 2023 . As stated earlier, the date of 10 May 2023 at 22h00
was in the offer made by the second respondent, which offer was not legally
competent as she had no authority to deal with the assets of the estate. The
agreement concluded on the 23 May 2023 between the applicant and the third
respondent is for all intents and purposes a new agreement existing independent
of the one signed between the applicant and second respondent.
[27] Objectively viewed, the applicant made an offer to the third respondent for the
purchase of the property on 11 May 2023 when she initialled the amended pages
of the offer to purchase on the advice of the first respondent who was an attorney
and agent of the third respondent. . The offer was open for acceptance by the
seller within a reasonable time as it contained no valid expiry clause. The seller
(in this case, Dawie Rus (Pty) Ltd) represented by the fourth respondent
accepted the offer on 23 May 2023 at which point a valid and binding agreement
came into existence.
[28] Acting consistently with her belief that there is a valid and binding agreement,
applicant proceeded to fulfil all her contractual obligations and paid the full
purchase price into the first respondent’s trust account. This act of payment
attracted a response from the first respondent wherein she dealt w ith the effect of
a suspensive clause in a contract and once again confirmed his client’s view that
there was no valid and binding agreement concluded between the parties.
[29] I have already found that clause 25, properly construed, is not a suspensive
condition. I have also found that the agreement between the applicant and the
third respondent constituted a new sale agreement for the purchase of the farm
and the reference to the “10 May 2023 at 22h00” is of no legal significance as it
was not inserted b y either party. For this reason, it should be regarded as pro-
non-scripto .
[30] I therefore find that the applicant has made out a case for the relief as set out in
the Notice of motion and the following orders are made: -
30.1. The written sale agreement concluded between the applicant and the
third respondent (attached to the founding affidavit) is declared valid
and binding between the parties.
30.2. The first, second, third and fourth respondents are directed to comply
with the agreement.
30.3. The conveyancers appointed by the first respondent, alternatively the
third and fourth respondent are authorised and directed to take all
necessary steps to transfer the property, known as Portion 23 of the
Farm Grietje NR6, Phalaborwa, Limpopo Province held under title
deed T[...] to the applicant.
30.4. The respondents referred to order 3 above shall within 07 days after
the demand by the conveyancers provide all the required
documentation necessary to pass the transfer, sign all the documents
and generally do all things necessary to give effect to the transfer of
ownership.
30.5. In the event the respondents fail to give effect to the requests by the
conveyancers, the sheriff of this court or his lawfully appointed deputy
are authorised and directed to sign all transfer documents to pass
transfer to the applicant.
30.6. The third respondent is ordered to pay the costs of this application on a
party and party scale C of the High Court which costs inc ludes the costs
of two counsel .
_______ _______________________
MANGENA
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
APPEARANCES
FOR APPLICANT : AS KINGON ATTORNEYS
HOEDSPRUIT
C/O STEYTLER NEL & PARTNERS
POLOKWANE
FOR 1ST TO 4TH RESPONDENT S’ : AJ COETZER & DE BEER ATTORNEYS
MOKOPANE
C/O NELIS BRITZ ATTORNEYS
POLOKWANE
HEARD ON : 30 APRIL 2025
DELIVERED ON : 07 JULY 2025