SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not Reportable
Case No: M16/2023
In the matter between:
ROGER MENDO Applicant
and
RUSTENBURG LOCAL MUNICIPALITY First Respondent
COMBRINK KGATSHE INC. Second Respondent
MMAMI GIFT MOTLISI Third Respondent
Coram: Petersen ADJP
Heard on: 16 April 2026
Delivered: This judgment was handed down electronically, circulated to
the parties’ representatives via email, uploaded to CaseLines, and released to
SAFLII. The date and time for the handing down of the judgment are
deemed to be 10h00 on 11 June 2026.
Summary: Immovable Property — Double Sale — Competing contractual
claims to transfer — Municipality concluding prior written sale followed by
later sale through admitted administrative error — Prior subsisting
contractual rights of first purchaser preventing specific performance in
favour of later purchaser — Declaratory relief refused where no practical
effect — Specific performance declined where prior valid sale renders
performance impossible — Municipality to bear costs of all parties where its
own administrative negligence was the sole cause of the litigation.
_____________________________________________________________
JUDGMENT
_____________________________________________________________
PETERSEN ADJP
Introduction
[1] This is an opposed application in which the Applicant, Mr Roger
Mendo (“Mr. Mendo”), an adult male who describes himself as currently
unemployed, seeks declaratory and mandatory relief against the First
Respondent, the Rustenburg Local Municipality (“the Municipality”), a local
authority duly established in terms of the Local Government: Municipal
Structures Act 117 of 1998 . The Applicant’s claim arises from a dispute
concerning the sale of immovable property described as Portion 14 of Erf
2[...], Rustenburg Extension 7 ( “the property ”). The Applicant seeks an
order:
‘1.1 Declaring that the deed of sale concluded between himself and the First
Respondent is valid and enforceable;
1.2 Directing the Second Respondent to transfer the property into the
Applicant's name within seven days of the order;
1.3 Directing the Respondents to bear the costs of the application; and
1.4 Granting further and/or alternative relief.’
[2] The Second Respondent , Combrink Kgatshe Inc. (“Combrink
Kgatshe”), is a firm of attorneys, notaries and conveyancers who, at all
material times, acted as the conveyancers appointed by the First Respondent
to attend to the transfer of the property which forms the subject matter of the
application. The Third Respondent, Ms Mmami Gift Motlisi (“Ms Motlisi”),
is an adult female employed by the First Respondent. She was joined to these
proceedings by virtue of her competing claim to the property.
[3] The Municipality opposes the application. The Third Respondent, Ms
[3] The Municipality opposes the application. The Third Respondent, Ms
Motlisi, who was subsequently joined to these proceedings, likewise opposes
the relief sought and claims to be the rightful purchaser of the same property.
The Second Respondent, Combrink Kgatshe abides by this Court’s decision
but seeks an order that the Municipality pay its costs.
[4] The central question to be determined is which of the two competing
purchasers, Mr. Mend o or Ms. M otlisi holds the enforceable right to take
transfer of the property. This question arises from what the Municipality has
frankly conceded was an administrative error resulting in a “double sale” of
the same immovable property to two different purchasers.
Background
[5] The genesis of this dispute lies in a decision taken by the
Municipality’s Council during or about April 2017 to dispose of various
residential stands situated in Geelhout Park Extension 6, Rustenburg
Extension 7 (commonly known as Noord), and Rustenburg Extension 2
(Zinniaville). The property in dispute formed part of the stands in
Rustenburg Extension 7.
[6] Pursuant to this resolution, the Municipality published an
advertisement in the local newspaper, Platinum Weekly , on 21 April 2017.
The advertisement stipulated, amongst other things, that the sale of the
properties would be conducted on a “ first come, first served ” basis, and that
preference would be given to first-time home owners.
[7] In terms of the stated requirements, a prospective purchaser was
required to pay a deposit equivalent to ten percent of the purchase price, with
the balance payable, or a bank guarantee provided, within thirty days of the
signing of the purchase and sale agreement.
The third respondent’s transaction
[8] It is apposite to commence in sequence, with the Third Respondent’s
transaction. On 5 July 2018, the Third Respondent , Ms Motlisi paid the
required ten percent deposit in the amount of R10 000 into the
Municipality’s ABSA Bank account, thereby signifying her intention to
purchase the property.
[9] On 5 September 2018, Ms. Motlisi concluded a written deed of sale
with the Municipality in respect of the property. On 31 October 2018, she
with the Municipality in respect of the property. On 31 October 2018, she
paid the balance of the outstanding purchase price of R90 000. It is common
cause that this payment was made outside the stipulated 30 day’ period and
therefore constituted a breach of the written agreement of sale. However, the
Municipality did not invoke the provisions of clause 10 of the agreement,
nor did it proceed to cancel the agreement. The late payment was accepted ,
and the agreement remained in force.
[10] It is undisputed on the papers that at the time of concluding her
agreement with the Municipality, Ms. Motlisi was a first time home owner.
She had no prior registered immovable property in her name.
The applicant’s transaction
[11] Sequentially, Mr Mendo’s transaction in respect of the same property,
followed that of Ms. Motlisi . In circumstances that the Municipality
describes as “inexplicable” and attributes to “bona fide error”, the
Municipality proceeded to sell the same property to Mr. Mendo . On 14
September 2018, the Municipality presented Mr. Mendo with a deed of sale
for the property. Mr. Mendo signed this document. The date reflected on Mr.
Mendo’s signature page is incomplete, reading merely “14th” without
specifying the month or year.
[12] Mr. Mendo made two separate payments of R10 000 each, totalling
R20 000, in respect of the required ten percent deposit. On 3 October 2018,
he paid the balance of the purchase price of R80 000.
[13] A further written deed of sale, signed by both Mr. Mendo and the
Municipality’s Director: Planning and Human Settlement, was subsequently
executed. This document, annexed to the founding affidavit, bears the date
“14th” alongside Mr. Mendo’s signature (with the month and year omitted)
and was signed by the Municipality’s representative on 5 October 2018.
[14] It is significant to note that the date of 5 October 2018, upon which the
Municipality’s representative signed Mr. Mendo’s agreement, falls exactly
one month after Ms. Motlisi had concluded her deed of sale on 5 September
2018. Mr. Mendo’s deed of sale contains a clause 5 which provides that
possession of the property shall be given to the purchaser on the date of
signing of the agreement. This clause differs materially from the standard
deed of sale utilised by the Municipality, and from the agreement concluded
deed of sale utilised by the Municipality, and from the agreement concluded
with Ms. Motlisi, which pr ovides that possession shall be given only upon
registration of transfer . A further anomaly is that Mr. Mendo paid twice the
required deposit amount, a circumstance consistent with administrative
confusion within the Municipality’s offices.
[15] Acting upon the purported sale agreement, Mr. Mendo took
possession of the property and proceeded to erect structures thereon,
including a borehole.
Discovery of the double sale and subsequent events
[16] Combrink Kgatshe identified the error of the “double sale ” and
brought this to the attention of the Municipality. Upon discovery of the
double sale, the Municipality unsuccessfully attempted to resolve the
impasse amicably with the co-operation and consent of both Ms. Motlisi and
Mr. Mendo.
[17] On 3 September 2020, Mr. Mendo’s attorneys addressed
correspondence to the Municipality seeking clarity on why the transfer had
not been effected. On 8 September 2020, Combrink Kgat she responded,
indicating that transfer could not be finalised due to “issues” arising out of
the purchase and sale agreement. On 11 September 2020, the Municipality
issued a legal notice instructing Mr. Mendo to remove any shelter or
dwelling erected on the property, asserting that the property belonged to the
Municipality.
[18] On 5 October 2022, the Municipality formally terminated the deed of
sale with Mr. Mendo. The termination notice, attached to the Municipality’s
answering affidavit, cites numerous grounds. At the time of the conclusion
of Mr. Mendo’s agreement, a valid deed of sale had already been entered
into between the Municipality and Ms. Motlisi . The advertisement of the
properties stipulated a “first come, first served ” basis. Ms. Motlisi’s
agreement was concluded prior to Mr. Mendo’s , and the Municipality was
bound to transfer the property to her based on the “first in time ” principle.
The deed of sale concluded with Mr. Mendo also contained various
irregularities. The termination notice tendered a refund of the R100 000
purchase price paid by Mr. Mendo. Despite the termination of his agreement,
Mr. Mendo refused to accept the cancellation and launched the present
application.
[19] On 31 October 2022, the Municipality instructed Combrink Kgatshe
application.
[19] On 31 October 2022, the Municipality instructed Combrink Kgatshe
to proceed with the transfer of the property to the Ms. Motlisi.
The third respondent’s evidence regarding the applicant’s property
ownership
[20] In her answering affidavit, Ms. Motlisi adduced evidence, by way of
Windeed searches, demonstrating that at the time Mr. Mendo purported to
purchase the property, he was already the registered owner of at least five
immovable properties . These properties include Erf 2[...]2, Rustenburg
Extension 7, Title Deed No. T76627/2012, registered in 2012; Erf 2[...]3,
Stellenbosch, Title Deed No. T72565/2007, registered in 2007; Portion 12 of
Erf 2[...], Rustenburg Extension 7, Title Deed No. T11672/2018, registered
in February 2018; Erf 7[...], Kaya Mandi, Title Deed No. T66188/2017,
registered in 2014; and Erf 2[...]4, Rustenburg Extension 7, Title Deed No.
T34209/2018, registered in January 2018. Mr. Mendo did not, in his replying
affidavit, dispute the existence of these prior property registrations.
[21] Ms. Motlisi further averred that the Municipality, prior to concluding
a sale agreement with any prospective purchaser, was required to verify
whether such purchaser qualified as a first time homeowner, in accordance
with the advertised preference. She contends that had this verification been
properly conducted, Mr. Mendo would have been disqualified. Whilst t his
evidence stands uncontroverted , it will be shown that on a proper
interpretation of the advertisement, nothing turns on this evidence.
[22] On 27 February 2023, after the termination of Mr. Mendo’s
agreement, the Municipality’s Building Inspector, Mr Tshiamo Molefe,
attended at the property and established that Mr. Mendo had proceeded to
erect additional temporary structures on the property despite the termination.
Issues for determination
[23] In my view, the following issues arise for determination . Whether Mr.
Mendo and Ms . Motlisi had concluded valid and enforceable deed s of sale
with the Municipality. In that event, the question that arises is which
agreement takes precedence in law. Mr. Mendo’s failure to qualify as a ‘first
agreement takes precedence in law. Mr. Mendo’s failure to qualify as a ‘first
time’ homeowner on the evidence of Ms. Motlisi as indicated above, must be
considered on a proper interpretation of the advertisement of the
Municipality. Lastly, the issue of an appropriate order as to costs arises.
The submissions of counsel
[24] I have had the benefit of the truncated heads of argument filed on
behalf of the Municipality and the supplementary heads of argument filed on
behalf of Mr. Mendo. Ms. Motlisi and Combrink Kgatshe were absent from
and not represented at the hearing. Their papers filed of record have,
however, been considered. I have also had the benefit of oral submissions of
counsel for Mr. Mendo and counsel for the Municipality, to the extent they
bear upon the issues I must decide.
For the applicant
[25] Counsel for Mr. Mendo, on my count, advanced five principal
submissions in support of the relief sought. These were supplemented by
written supplementary heads of argument filed in response to the
Municipality’s truncated heads.
[26] First, it was submitted that Mr. Mendo’s deed of sale complied in all
material respects with the formal requirements of s 2(1) of the Alienation of
Land Act 68 of 1981. The agreement identified the parties, the property
(Portion 14 of Erf 2[...], Rustenburg Extension 7), the purchase price
(R100 000), and the terms of payment. All essentialia of a sale of land were
present in writing and signed by both parties. Counsel directed th is Court’s
attention to the advertisement published in the Platinum Weekly newspaper
and to the deed of sale itself. Mr. Mendo paid an initial deposit of R10 000
on 18 September 2018, a further R10 000 on the same date , and the balance
of R80 000 on 3 October 2018, thereby discharging the full purchase price
timeously. On 27 November 2018, the Municipality’s Directorate: Planning
and Human Settlement, through Ms M Parasi, wrote to Comprehensive
Incorporated (the conveyancers then acting) directing them to effect transfer
into Mr. Mendo’s name, confirming that the purchase price had been paid in
full. That letter is unequivocal evidence of the Municipality’s own
contemporaneous recognition of the validity of Mr. Mendo’s agreement.
[27] Second, it was submitted that the absence of a completed date in Mr.
Mendo’s deed of sale was at most a clerical omission and not a vitiating
defect. The Municipality acknowledged that its Director: Planning and
Human Settlement signed the agreement on 5 October 2018, thereby making
the date of conclusion ascertainable and known to all parties. On the Clause
the date of conclusion ascertainable and known to all parties. On the Clause
5 discrepancy, it was argued that the variant wording was the Municipality’s
own drafting . Having presented Mr. Mendo with that document, having
signed it , and accepted full payment, the Municipality could not repudiate
the terms of the document it had itself tendered. The principle of pacta sunt
servanda was invoked, with reference to Tarentaal Centre Investments (Pty)
Ltd v Beneficio Developments1, which confirms that “the principle gives
effect to the constitutional values of freedom and dignity and that . . . public
policy requires contracting parties to honour obligations freely and
voluntarily undertaken ”. Mr. Mendo , having performed in full and taken
possession, the Municipality could not, in law, approbate and reprobate.
[28] Third, counsel submitted that the first time home owner condition
could not be imported as an extrinsic term to invalidate Mr. Mendo’s deed of
sale. The agreement contained no express condition that the purchaser be a
first time owner and no written suspensive condition to that effect. It was the
Municipality that authored the deed of sale and presented it to Mr. Mendo. If
a qualifying condition was intended to apply, it ought to have been expressly
incorporated into the agreement. The Municipality’s own negligence in
omitting such a condition could not be deployed against Mr. Mendo to
deprive him of rights arising from an agreement the Municipality itself had
caused to be signed. To permit an unrecorded administrative criterion to
override a signed written agreement would offend the very purposes of s 2(1)
of the Alienation of Land Act. It was further submitted that there was no
evidence that Mr Mendo had misrepresented his property status to the
Municipality, which had the means to verify ownership before contracting.
[29] Fourth, it was submitted that Ms. Motlisi claim to be first in time was
legally artificial. The payment of R10 000 on 5 July 2018, in the absence of
any written deed of sale, could never constitute a valid agreement for the sale
of land. Section 2(1) of the Alienation of Land Act is unequivocal , absent a
written agreement, no valid sale of land exists. The earliest point at which
Ms. Motlisi could arguably claim a valid agreement was the conclusion of
the written deed of sale on 5 September 2018. That agreement, however,
contained a suspensive condition requiring payment of the ten percent
contained a suspensive condition requiring payment of the ten percent
deposit upon signature of the deed. No such payment was made on
5 September 2018. The only payment traceable Ms. Motlisi’s papers is the
R90 000 paid at the end of October 2018, well beyond the 30 days stipulated
for payment of the balance. The suspensive condition having never been
fulfilled, the Municipality could not condone a breach of it . Ms. Motlisi’s
agreement was accordingly not in good standing from inception. Mr. Mendo
by contrast, had performed timeously and in full at every stage and had been
1 Tarentaal Centre Investments (Pty) Ltd v Beneficio Developments [2025] ZASCA 38 para 34.
given possession of the property by the Municipality itself under clause 5 of
the deed of sale.
[30] Fifth, counsel submitted that the purported cancellation of Mr.
Mendo’s agreement on 5 October 2022 was unlawful. Clause 10 of the deed
of sale set out an exhaustive regime governing breach and cancellation .
Clause 10.2 required that, before any cancellation could be effected, a notice
shall be given calling upon the defaulting party to remedy the breach within
seven days. No such notice had been served because Mr. Mendo had
committed no breach. Mr. Mendo had paid his deposit and the balance of the
purchase price timeously and in full, and the Municipality had itself
instructed its conveyancers to attend to the transfer. The cancellation was
accordingly not premised on any recognised ground of contractual
cancellation but was driven solely by the Municipality’s belated realisation
of its own error. On that basis , it was submitted that the Municipality’s
purported cancellation was without legal foundation, and the application for
declaratory relief and specific performance should accordingly be upheld.
For the municipality
[31] Counsel for the Municipality submitted that the matter was
straightforward on both the facts and the law. Mr. Mendo’s counsel, it was
posited, was seeking to modify the facts to tilt them in Mr. Mendo’s favour.
The Municipality’s case did not depend on Ms. Motlisi having been the first
to pay a deposit. The determinative fact, in terms of the law, was the date on
which the seller concluded the deed of sale . Section 2(1) of the Alienation of
Land Act requires a written agreement, and the relevant enquiry was when
that agreement was concluded. On that basis, Ms. Motlisi’s deed of sale was
signed by the Municipality on 5 September 2018 , and she was accordingly
first in time. Mr. Mendo’s agreement was signed by the Municipality only on
5 October 2018, one full month later. Once that fact was accepted, it was, on
5 October 2018, one full month later. Once that fact was accepted, it was, on
the Municipality’s submission, the end of the matter for Mr. Mendo.
[32] On the suspensive condition argument advanced by Mr. Mendo ,
counsel for the Municipality submitted that the condition requiring payment
of the deposit upon signature was inserted for the benefit of the Municipality
as seller. The Municipality, as the beneficiary of that condition, had elected
not to invoke it and had accepted Ms. Motlisi’s late payment. That election
had been communicated , and Combrink Kgatshe had accordingly been
instructed not to transfer to Mr. Mendo once the double sale came to lig ht.
The election was a lawful and valid exercise of contractual rights and could
not be impugned. Counsel further submitted that Mr. Mendo had placed no
special circumstances before the Court that would warrant a departure from
the prior tempore rule. Mr. Mendo was second in time and had not
established the exceptional circumstances necessary for the Court to exercise
its equitable discretion in his favour. He relied on Gugu and Another v
Zongwana and Others ; Fulsome Properties (Pty) Ltd v Selepe and Others ;
and Mahlangu v Mahlangu and Others2. It was submitted that the application
should accordingly be dismissed with costs.
[33] On the question of costs, counsel for the Municipality made a material
concession. If this Court were of the view that it was the Municipality’s
administrative errors that had created the dispute between Mr. Mendo and
Ms. Motlisi , the Municipality should not be awarded costs against Mr.
Mendo. In those circumstances, the Municipality should rather bear the costs
of the application itself. He further acknowledged that Combrink Kgatshe’s
claim for costs against the Municipality, arising from the conflicting
instructions it had received, was well-founded.
For the applicant in reply
[34] In reply , counsel for Mr. Mendo urged the Court, even if it were
inclined to apply the prior tempore principle, to exercise its equitable
discretion in favour of Mr. Mendo on account of three special circumstances.
First, Mr. Mendo had performed in full and timeously in terms of his
agreement at every stage. Second, the Municipality was solely responsible
for the double sale, having created the predicament through its own
administrative negligence; it was entirely the Municipality’s fault that the
same property was sold twice. Third, Mr. Mendo had been in undisturbed
occupation of the property for more than five to six years, having been
contractually placed in possession by the Municipality itself under clause 5
contractually placed in possession by the Municipality itself under clause 5
of the deed of sale, and had in the interim drilled a borehole on the property.
The Municipality, which was legally represented throughout, had never
launched a counter -application to set aside Mr. Mendo’s agreement, compel
his eviction, or assert any right to the property. Counsel submitted that the
balance of fairness firmly favoured Mr. Mendo and that the Court should
2 Gugu and Another v Zongwana and Others [2014] 1 All SA 203 (ECM) para 32; Fulsome
Properties (Pty) Ltd v Selepe and Others (14001/2021) [2021] ZAGPPHC 196 para 36; and
Mahlangu v Mahlangu and Others (19060/2015) [2016] ZAGPPHC 14 para 9.
accordingly depart from the strict application of the maxim and grant an
order for transfer.
The applicable legal principles
[35] It is trite that a deed of sale for immovable property must comply with
the formalities prescribed by s 2(1) of the Alienation of Land Act 68 of
1981, which requires that the contract be reduced to writing and signed by
both parties or their authorised agents.
[36] Where competing contractual rights arise concerning the same
immovable property, a court must consider the nature of the rights acquired
and the remedy sought. Where the same immovable property is sold to two
different purchasers by the same seller, and neither purchaser has yet taken
transfer of the property, the general rule in our law is that the first valid sale
in time prevails. This principle is encapsulated in the maxim qui prior est
tempore potior est jure (he who is earlier in time is stronger in law). The
rationale underlying this principle is that, upon the conclusion of the fir st
sale, the seller assumes obligations inconsistent with a subsequent
undertaking to transfer the same property to another purchaser. The maxim
remains a useful principle for identifying competing claims, but it does not
function as a rigid formula that automatically invalidates a later contract. The
enquiry remains fact -sensitive and directed at determining which claimant
possesses the stronger right to demand transfer in the circumstances of the
particular case.
[37] A declaratory order is a discretionary remedy. The court must be
satisfied that the applicant is an “interested person” in the sense of having a
direct and substantial interest in the subject matter, and that the order would
serve a practical purpose. A declaratory order will not be granted where it
would be of merely academic interest or where no tangible benefit would
flow from it.
[38] The remedy of specific performance, which Mr. Mendo in substance
seeks by demanding transfer of the property, is likewise discretionary. A
seeks by demanding transfer of the property, is likewise discretionary. A
court will not decree specific performance where performance would be
legally incapable of fulfilment, would conflict with prior enforceable rights,
or would otherwise be inequitable in the circumstances.
The third respondent’s agreement is valid and enforceable
[39] On the evidence before me, there can be no serious dispute that Ms.
Motlisi concluded a valid and binding deed of sale with the Municipality on
5 September 2018. The agreement was reduced to writing, signed by both
parties, and complies with the formalities prescribed by the Alienation of
Land Act.
[40] The contention by Mr. Mendo that Ms. Motlisi’s late payment
rendered her agreement fatally defective is not sustainable. Ms. Motlisi paid
the required deposit on 5 July 2018, predating even Mr. M endo’s deposit.
She paid the balance of the purchase price on 31 October 2018. While it is
true that the balance was paid late, thereby constituting a technical breach of
the agreement, the Municipality elected not to cancel the agreement but
instead accepted the late payment. The consequences of late performance
were for the Municipality to invoke if it elected to do so. It did not do so.
Instead, it accepted the late payment . Ms. Motlisi’s contractual rights ,
therefore, remained operative. In law, the election not to cancel a contract
following a breach operates as a waiver of the right to cancel on that
particular ground.3
[41] The Municipality, through its answering affidavit deposed to by its
Acting Municipal Manager, has unequivocally affirmed the validity of the
Ms. Motlisi’s agreement and has expressed its intention to honour that
agreement by transferring the property to her. This stance is consistent with
the legal opinion it obtained and with the instruction issued to Combrink
Kgatshe on 31 October 2022.
The applicant’s agreement is fraught with irregularities
[42] The Municipality identified various irregularities in Mr. Mendo’s
documentation, including completion anomalies and inconsistencies in the
form used. Mr. Mendo’s deed of sale is attended by several irregularities that
may cast doubt on its validity and enforceability. It is not necessary to
determine each of these issues conclusively.
determine each of these issues conclusively.
[43] First, the date of Mr. Mendo’s signature is incomplete. The document
reflects only “14 th” without specifying the month or year. While this defect
might not be fatal in itself, if the surrounding circumstances could establish
3Segal v Mazzur 1920 CPD 634; Mahabeer v Sharma NO 1983 (4) SA 421 (D) at 423 –424 (Kumleben J),
approved in Thomas v Henry and Another [1985] ZASCA 56; 1985 (3) SA 889 (A) at 897I –898A (Van
Heerden JA).
the date of signature, it is symptomatic of a broader lack of diligence in
preparing the document. Second, and more significantly, the Municipality’s
representative signed Mr. Mendo’s agreement on 5 October 2018. This was
exactly one month after Ms. Motlisi had already concluded her agreement
with the Municipality on 5 September 2018. By 5 October 2018, the
Municipality had already bound itself contractually to Ms. Motlisi. It was
therefore not open to the Municipality, consistently with its prior obligations,
to undertake performance in favour of Mr. Mendo in respect of the same
property. The subsequent agreement concluded with Mr. Mendo may have
given rise to contractual rights as between Mr. Mendo and the Municipality,
but those rights cannot prevail against the prior subsisting rights acquired by
Ms, Motlisi under the earlier agreement. Third, clause 5 of Mr. Mendo’s
agreement, which purports to confer immediate possession upon the
purchaser upon signature, differs materially from the standard terms of the
Municipality’s deeds of sale, including those of Ms. Motlisi. Ms. Motlisi’s
agreement provides that possession shall be given only upon registration of
transfer. This discrepancy suggests that the document presented to Mr.
Mendo may not have been the standard form utilised by the Municipality and
may have been issued without proper oversight. Fourth, Mr. Mendo’s
payment of two separate deposits of R10 000 each, totalling R20 000 instead
of the required R10 000 , is consistent with administrative confusion. The
Municipality’s own description of the transaction as resulting from a bona
fide error is borne out by the objective facts.
[44] Notwithstanding the aforesaid, and without finally determining every
challenge raised concerning Mr. Mendo’s agreement, I am prepared to
assume in his favour that contractual rights arose between him and the
Municipality capable of enforcement inter partes . This assumption,
Municipality capable of enforcement inter partes . This assumption,
however, does not advance Mr. Mendo’s claim to transfer because any such
rights remain subject to the prior subsisting rights acquired by Ms. Motlisi.
[45] Mr. Mendo seeks to rely on the principle that a written agreement, once
signed, constitutes the exclusive memorial of the parties’ contract and cannot
be varied or contradicted by extrinsic evidence of prior negotiations or
conditions. This is the parol evidence rule, also known as the integration
rule.4 However, the parol evidence rule does not preclude evidence going to
4Union Government v Vianini Ferro -Concrete Pipes (Pty) Ltd 1941 AD 43 at 47; KPMG Chartered
Accountants (SA) v Securefin Ltd [2009] ZASCA 7; 2009 (4) SA 399 (SCA) para 39.
the validity of the agreement itself, or evidence of fraud, misrepresentation,
or mistake. The rule does not exclude evidence that an agreement is void for
want of compliance with statutory requirements or for some other
fundamental defect.
[46] In the present case, the evidence of the advertised conditions,
particularly the “first come, first served ” basis and the preference for first -
time home owners, is relevant not to vary the written terms of Mr. Mendo’s
agreement, but to explain the context in which the Municipality’s error
occurred and to demonstrate why Mr. Mendo’s agreement cannot, in equity
and good conscience, be enforced against the Municipality when to do so
would prejudice Ms. Motlisi, who complied with those very conditions.
[47] Whilst Mr. Mendo’s failure to disclose his existing property portfolio
to the Municipality, whether deliberate or not, may mean that he was not a
person who fell within the class of intended beneficiaries of the
Municipality’s land disposal programme, this in my view does not operate in
favour of Ms. Motlisi. The “first time home owner” issue formed part of the
broader factual context, but the advertisement referred to preference rather
than an express contractual prohibition . In my view, t hat issue is therefore
not decisive of the impasse between the parties in this application.
The “first in time” principle applies
[48] In my view, due regard had to the discussion aforesaid and accepting
that the agreements of Mr. Mendo and Ms . Motlisi are, on their own merits
valid, the principle that the first valid sale in time must prevail. The
application of this principle is dispositive of the matter. I am therefore driven
to conclude that Ms. Motlisi’s prior agreement takes precedence over Mr.
Mendo’s purported agreement. The chronology is clear. Ms. Motlisi paid her
deposit on 5 July 2018 and signed her deed of sale on 5 September 2018. Mr.
Mendo signed a document on a date in September 2018 (likely 14 September
Mendo signed a document on a date in September 2018 (likely 14 September
2018), but the Municipality’s representative did not sign it until 5 October
2018. Ms. Motlisi’s agreement was thus perfected before the Municipality
concluded the agreement with Mr. Mendo.
[49] Even if one were to accept that Mr. Mendo’s agreement was concluded
on 14 September 2018, the date he signed, Ms. Motlisi’s agreement still
predates it by nine days. On either approach, Ms. Motlisi’s agreement is first
in time. The Municipality, upon discovering its error, elected to honour the
first agreement and on 5 October 2022 purported to terminate Mr. Mendo’s
agreement whilst tendering repayment of the purchase price. Whether that
cancellation was legally effective need not be finally determined for
purposes of this application because, even if Mr. Mendo’s contractual rights
survived cancellation, those rights cannot prevail over the prior rights
acquired by Ms. Motlisi.
[50] Mr. Mendo’s insistence on transfer in the face of a prior valid sale to
Ms. Motlisi is legally untenable. The Municipality cannot lawfully transfer
the same property to two different persons. To compel transfer to Mr. Mendo
would require the Court to disregard the prior contractual rights acquired by
Ms. Motlisi and would produce an inequitable result inconsistent with
established principles governing competing claims to the same property.
The declaratory relief
[51] Mr. Mendo seeks declaratory relief that his agreement is valid and
enforceable. Even if contractual enforceability were assumed between Mr.
Mendo and the Municipality, such a declaration would provide no effective
practical relief once it is concluded that transfer cannot appropriately be
compelled. The real controversy concerns transfer.
[52] It is well established that where a seller is unable to transfer property to
a purchaser because of a prior sale to a third party, the purchaser’s remedy
ordinarily lies in a claim for damages rather than specific performance. Even
assuming that contractual rights arose in favour of Mr. Mendo , the central
controversy before this Court concerns entitlement to transfer. The existence
or otherwise of a damages claim is not before this Court. In the
circumstances, a declarator concerning contractual enforc eability would not
alter the parties’ present legal position regarding transfer of the property.
[53] The Municipality has already tendered a refund of the R100 000
purchase price paid by Mr. Mendo. To the extent that Mr. Mendo may have
purchase price paid by Mr. Mendo. To the extent that Mr. Mendo may have
suffered additional damages, including the cost of improvements effected on
the property, his remedy lies in the pursuit of such relief in the appropriate
forum. This Court is not seized with such a claim and expresses no view on
its merits.
[54] In the premises, the declaratory relief sought by Mr. Mendo cannot be
granted. Mr. Mendo has failed to establish that the declaratory order would
have any practical effect or serve any useful purpose in determining
entitlement to transfer of the property.
Cancellation
[55] Mr. Mendo challenged the efficacy of the Municipality’s purported
cancellation. It is unnecessary to determine that issue finally . Even if
cancellation were ineffective, Mr. Mendo would remain unable to secure the
specific performance sought because the obstacle lies in MS. Motlisi’s prior
subsisting rights.
Costs
[56] The general rule is that costs follow the event. Although Mr. Mendo
fails in the principal relief sought, this is an exceptional case. The litigation
was caused entirely by the Municipality’s admitted administrative failures in
creating conflicting contractual expectations concerning the same property.
It is therefore the Municipality that bears exclusive responsibility for the
predicament in which all parties now find themselves. Neither Mr. Mendo
nor Ms. Motlisi was responsible for the duplication and is an innocent party
to a dispute created by the Municipality. The Municipality issued deeds of
sale on non-standard terms, omitted dates, accepted duplicate deposits, and
permitted Mr. Mendo to take occupation of the property in terms of a clause
conferring possession upon signature . This clause appeared in no other sale
agreement in the programme. The resulting litigation was entirely
foreseeable and entirely avoidable.
[57] Combrink Kgatshe’s involvement likewise arose directly from the
Municipality’s conduct. The Municipality should also be held liable for the
costs of Combrink Kgatshe , whose engagement in these proceedings was
necessitated by the conflicting instructions it received from the Municipality
as a direct result of the double sale. I am edified in this conclusion by the
concession made by counsel for the Municipality at the hearing that, if the
Court found the Municipality’s administrative failures to be causative of the
litigation, costs should not be visited upon Mr. Mendo and the Municipality
litigation, costs should not be visited upon Mr. Mendo and the Municipality
should rather bear the costs itself.
[58] In the circumstances, f airness dictates that the Municipality bear the
costs occasioned by this litigation. In the exercise of this Court’s discretion,
it is just and equitable that the Municipality bear the costs of Mr. Mendo,
Combrink Kgatshe Inc., and Ms. Motlisi.
Order
[59] In the result, I make the following order:
1. The Applicant’s application for a declaratory order that the deed
of sale concluded between the Applicant and the Municipality is valid
and enforceable is dismissed.
2. The Applicant ’s application for an order directing the Second
Respondent to transfer Portion 14 of Erf 2[...], Rustenburg Extension
7, into the Applicant’s name is dismissed.
3. The Municipality is directed to refund to the Applicant the
amount of R100 000 (One Hundred Thousand Rand) paid by the
Applicant as the purchase price for the property, together with interest
thereon at the prescribed legal rate a tempore morae from 5 October
2022 (being the date of cancellation) to the date of final payment.
Such payment shall be made within thirty (30) days of the date of this
order.
4. The Municipality shall pay the costs of the Applicant, the
Second Respondent, and the Third Respondent, including the costs of
their respective counsel where employed, such costs to be taxed on the
party-and-party scale, Scale B.
_______________
A.H. PETERSEN
ACTING DEPUTY JUDGE PRESIDENT
NORTH WEST DIVISION, MAHIKENG
Appearances
For the Applicant: Adv. T J Makgate
Instructed by: Mogau Attorneys, Mafikeng
For the Municipality: Adv. O K Chwaro
Instructed by: M.E. Tlou Attorneys, Mafikeng
For the Second Respondent: No Appearance
Instructed by: Combrink Kgatshe Inc.
For the Third Respondent: No Appearance
Instructed by: Kgokgong Nameng Tumagole Inc.