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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
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2024-135980
In the matter between:
SAU ESTATES (PTY) LTD Applicant
(REGISTRATION NUMBER: 2016/098572/07)
And
CHAPPELBAUM PROPERTIES (PTY) LTD Respondent
(REGISTRATION NUMBER: 1999/009734/07)
JUDGMENT
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED:
………………………... …………………………
DATE SIGNATURE
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DREYER AJ:
[1] In the present application the Applicant seeks an order for:
1.1 payment of the sum of R18 000 000.00 together with interest;
1.2 payment of the sum of R20 000.00 together with interest; and
1.3 costs of the application on an attorney and client scale.
[2] The relief sought by the Applicant arises out of a written Agreement of Sale
(attached to the Founding Affidavit as Annexure “FA2”) entered into between
the parties on 28 January 2021 for the purchase of the immovable property
situated at the property known as P[…] H[…] , 1[…] E[…] O[…] Avenue, B[…] ,
Johannesburg (“the immovable property”).
[3] The Applicant is seeking repayment of the purchase price (being
R18 000 000.00) and repayment of the portion of the transfer costs (being
R20 000.00).
[4] In terms of clause 6 of the Agreement of Sale (“the agreement”):
4.1 the purchase price is R18 000 000.00;
4.2 the purchase price shall be paid by way of an initial amount of
R5 000 000.00 within 5 (five) days of the signature date; and
4.3 payment of the balance of the purchase price amounting to
R13 000 000.00 shall be made by way of 23 (twenty -three) successive
monthly instalments of R541 600.00in plus a final instalment in the
twenty fourth (24
th) month of R543 200.00.
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[5] The Applicant avers in the Founding Affidavit that it complied with its
obligations in terms of the agreement, in particular:
5.1 by making payment of the full purchase price, with the final instalment
being paid on or about 14 February 2023;
5.2 by making payment of a portion of the transfer costs associated with
the transfer on 25 April 2024; and
5.3 by signing the relevant transfer documentation on request.
[6] The Applicant contends that the Respondent breached the agreement in that
it failed to give transfer of the property to the Applicant within a reasonable
time after payment of the last instalment of the balance of the purchase price
was made.
[7] It is common cause that the Applicant made the final payment of the purchase
price on or about 14 February 2023 and that the full purchase price has been
paid by the Applicant and further that the Applicant made payment of a portion
of the transfer costs on 25 April 2024.
[8] I deem it relevant to set out a brief chronology of the matter as follows:
8.1 27 January 2021 – parties conclude the agreement.
8.2 14 February 2023 – Applicant makes full payment of the purchase
price.
8.3 25 April 2024 – Applicant makes partial payment of the transfer costs.
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8.4 14 August 2024 – Applicant’s attorneys of record address
correspondence to the transferring attorneys (Brasg Associates Inc.)
requesting a comprehensive progress report on the transfer.
8.5 29 August 2024 – Brasg Associates Inc. respond to the Applicant’s
attorneys of record advising of the difficulty experienced in obtaining
the clearance figures from the City of Johannesburg (“the CoJ”).
8.6 6 September 2024 – Applicant’s attorneys of record address
correspondence to Brasg Attorneys affording the Respondent 10 (ten)
business days (i.e. until 21 September 2024) to register transfer of the
immovable property.
8.7 13 September 2024 – Brasg Associates Inc. respond to the Applicant’s
attorneys of record advising that: (i) the Respondent has not been able
to pass transfer as a result of valid clearance figures not being
furnished by CoJ and without a valid clearance certificate being lodged,
the transfer may not be registered by the Deeds Office; (ii) clearance
figures have been received on 13 September 2024 to enable the
clearance certificate to be applied for, whereafter transfer will be able to
be lodged in the Deeds Office; (iii) it is not possible to comply within the
10 (ten) day period afforded in the letter under reply; and (iv) the
Respondent tenders to pass transfer of the immovable property to the
Applicant within a reasonable period.
8.8 19 September 2024 – Brasg Associates Inc. provide clearance figures
to the Applicant’s attorneys of record.
8.9 4 October 2024 – Applicant’s attorneys of record respond to Brasg
Associates Inc. recording that: (i) the Respondent has had more than
reasonable time to register transfer of the immovable property to the
Applicant and has failed to do so; (ii) the Respondent was placed on
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terms to effect registration of transfer within 10 (ten) days form the
letter dated 6 September 2025 and failed to do so; (iii) the Respondent
remains in breach of the agreement; and (iv) the Applicant hereby
cancels the agreement, as provided for in terms of clause 18.1.2. The
Applicant further demands repayment of the full purchase price and
transfer costs paid.
8.10 1 November 2024 – Clearance certificate issued by the CoJ.
[9] The Respondent denies that the Applicant complied with its obligations in
terms of the agreement. The Respondent contends that by only making partial
payment of the transfer costs, the Applicant did not comply with its obligations
in terms of the agreement. The Respondent contends by virtue of the
Applicant’s incomplete performance the breach notice and subsequent
cancellation of the agreement are both invalid.
[10] The Respondent admits that the transfer of the immovable property has not
yet been registered, and contends that the delay was beyond its control. The
Respondent sets out that the dispute with the CoJ regarding the validity of the
clearance figures and the issue of the clearance certificate was only resolved
on 30 October 2024.
[11] Clause 13.1 of the agreement provides the parties agree that transfer of the
immovable property shall be given to the Applicant within a reasonable time
after the last instalment of the balance of the purchase price has been paid.
[12] Clause 13.2 of the agreement provides the Applicant shall, on request from
the conveyancers (being Brasg Associates Inc.), pay all costs of and
incidental to the concluding of this transaction by the transfer of the assets
comprising the enterprise, including the immovable property, into the name of
the Applicant. Such costs shall include the costs of issuing and obtaining a
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rates clearance certificate/s from the local authority, but not the amount
payable on the local authority rates clearance account required to be paid
before the clearance certificate can be issued.
[13] The Respondent avers that the initial transfer costs account presented to the
Applicant by Brasg Associates Inc. dated 5 April 2024 (Annexure “AA3” to the
Answering Affidavit) was for a total amount of R182 308.80. The Applicant
requested a reduction and after negotiating the requested discount and
agreeing on the reduced amount with the Applicant, the transfer costs account
was reduced to R149 945.50 (Annexure “AA4” to the Answering Affidavit,
dated 25 April 2024) . The Applicant was expressly requested to make
payment of the reduced transfer costs account . The original of Annexure
“AA3” was handed to the Applicant with the agreed hand-written amendments
on it. Following on the request for payment, the Applicant undertook to make
payment of the balance owing under the amended transfer costs account
(Answering Affidavit paragraphs 14.2 to 14.5).
[14]
14.1 In the Replying Affidavit the content s of paragraph 14 (being
paragraphs 14.1 to 14.7) of the Answering Affidavit are denied by the
Applicant. In particular the Applicant denies that there was ever a
request for payment. The Applicant contends that the Respondent
cannot produce a single document, including any by Brasg Associates
Inc., wherein the Applicant was requested to make payment of the
transfer costs.
14.2 The denial of the Applicant also amounts to a denial of the following:
14.2.1 That the Applicant was presented with Annexure “AA3” to the
Answering Affidavit, being the initial transfer costs account.
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14.2.2 That Applicant requested a reduction and after negotiating the
requested discount and agreeing on the reduced amount with
the Applicant, the transfer costs account was reduced.
14.2.3 That the initial transfer costs account was reduced as requested
by the Applicant and a new transfer costs account was issued by
Brasg Associates Inc., attached as Annexure “AA4” to the
Answering Affidavit and dated 25 April 2024.
14.3 This denial by the Applicant is non- sensical given that it is common
cause that the Applicant made partial payment of the transfer costs on
25 April 2024 in terms of Annexure “AA4” to the Answering Affidavit.
[15] The Applicant further avers that on 7 November 2024 Brasg Associates Inc.
was requested via email by a Ms Yvonne Janse van Rensburg, formerly of the
Applicant’s attorneys of record, to “… provide us with any and all demands
delivered to our client for payment of the transfer costs. According to the
Applicant “Brasg replied and confirmed, unsurprisingly, that no such “formal”
demand had been made.” However, the email thread the Applicant seeks to
rely on, being Annexure “RA1” to the Replying Affidavit, only contains the
email of Ms Janse van Rensburg. The reply from Brasg to the said email of
Ms Janse van Rensburg is not attached to the Replying Affidavit. I can
therefore not accept this version of the Applicant as the evidence the
Applicant relies on in support of the version is not before the Court.
[16] The Applicant’s contention that the Respondent breached the agreement in
that it failed to give transfer of the property to the Applicant within a
reasonable time after payment of the last instalment of the balance of the
purchase price was made must be viewed together with the following:
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16.1 The Applicant waited for a period of approximately 18 (eighteen)
months from the time full payment of the purchase price was made on
14 February 2023 before addressing correspondence to Brasg
Associates Inc. on 14 August 2024 requesting a comprehensive
progress report on the transfer.
16.2 No explanation is proffered by the Applicant as to what transpired
during the said 18 (eighteen) month period and why the Applicant
waited so long to request the said progress report on the transfer.
16.3 Approximately 1 (one) month and 3 (three) weeks lapsed from the time
the Applicant requested a comprehensive progress report on the
transfer on 14 August 2024 until the time the Applicant cancelled the
agreement on 4 October 2024. During this period:
16.3.1 The Applicant was advised by the Respondent on 29 August
2024 of the difficulty experienced in obtaining the clearance
figures from the CoJ.
16.3.2 Clearance figures were only received from the CoJ on 13
September 2024. The Applicant’s attorneys of record were
provided with a copy of the clearance figures on 19 September
2024, yet proceed to cancel the agreement approximately 2
(two) weeks later.
16.4 The dispute with the CoJ regarding the validity of the clearance figures
and the issue of the clearance certificate was only resolved on 30
October 2024.
16.5 The clearance certificate was only issued by the CoJ on 1 November
2024.
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[17] I cannot find support for a finding that the Respondent’s contention that the
delay was beyond its control is so improbable that it stands to be rejected. It is
evident that the delay was in respect of the clearance figures, and was caused
by the CoJ.
[18] As set out above the Respondent contends by virtue of the Applicant’s
incomplete performance the breach notice and subsequent cancellation of the
agreement are both invalid.
[19] The obligations of the parties to the agreement are reciprocal. The obligation
of the Applicant to pay the full purchase price and the transfer costs in terms
of clauses 6 and 13.2 respectively of the agreement, is reciprocal to the
Respondent’s obligation to transfer ownership of the immovable property in
terms of clause 13.1 of the agreement.
[20] The exceptio non adimpleti contractus can be raised as a defence in the case
of reciprocal contracts. The principle of reciprocity and the exceptio non
adimpleti contractus was reviewed in some detail by the Appellate Division in
BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1)
SA 391 (A). The principle of reciprocity recognises that in many contracts the
common intention of the parties, expressed or unexpressed, is that there
should be an exchange of performances, and the exceptio gives effect to this
recognition of this fact be serving as a defence for the defendant who is sued
on the contract by a plaintiff who has not yet performed or tendered to
perform.
[21] In Cradle City (Pty) Ltd v Lindley Farm 528 (Pty) Ltd 2018 (3) SA 65 (SCA) it
was held that the principle of reciprocity ( exceptio non adimpleti contractus )
recognises the fact that, in many contracts, the common intention of the
parties, expressed or unexpressed, is that there should be an exchange of
performance. Whether there is such an intention must often be determined by
an interpretation of the contract. The common intention is that neither should
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be entitled to enforce the contract unless he/she has performed or is ready to
perform his/her own obligations.
[22] At the time of the delivery of the breach letter and subsequent cancellation
letter, the Applicant had not fully performed in terms of its own obligation to
make payment of the transfer costs. On its own version the Applicant only
made payment of a portion of the transfer costs associated with the transfer.
[23] In the circumstances I cannot find that the breach letter and subsequent
cancellation letter are valid.
[24] I also cannot find in support of the A pplicant’s contention that the Respondent
breached the agreement in that it failed to give transfer of the property to the
Applicant within a reasonable time after payment of the last instalment of the
balance of the purchase price was made. As set out above, it is evident that
the delay was in respect of the clearance figures, and was caused by the CoJ
and not the Respondent.
[25] It is trite that all costs are in the discretion of the Court and that the underlying
principle is that the Court’s discretion must be exercised judicially upon a
consideration of the facts of each case and that in essence it is a matter of
fairness to both sides. I cannot fault the Applicant for launching the application
given the lapse of time. But I also cannot fault the Respondent as the delay
was not caused by the Respondent but by the CoJ. In the circumstances I
think it just that each party should pay its own costs.
[26] I therefore make the following order:
1. The application is dismissed.
2. Each party is to pay its own costs.
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__________
E DREYER
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
This judgment was handed down electronically by circulation to the parties’
legal representatives by email and by being uploaded to CaseLines. The date
for hand down is deemed to be 19 May 2026.
Appearances:
Appearance for Applicant: Adv. K Reddy
Instructed by: Jason Michael Smith Inc.
Appearance for Respondent: Adv. AC Comuzio
Instructed by: Ebrahim Asvat Attorneys
Date of hearing: 22 April 2026
Date of Judgment: 19 May 2026