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[2026] ZAGPJHC 700
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Hulley and Another v Alegra and Another (A24/039699) [2026] ZAGPJHC 700 (25 June 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE
NO:
A24-039699
(1)
REPORTABLE:
YES
/ NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
25
June 2026
In the matter between:
SONJA
HULLEY
First
appellant
RENE
NORTJE t/a NORTJE
ATTORNEYS
Second
appellant
and
WILLEM
ABRAHAM ALEGRA
First
respondent
ESTELLE
REINETTE BRONKHORST
Second
respondent
This
Order is made an Order of Court by the Judge whose name is reflected
herein, duly stamped by the Registrar of the Court and
is submitted
electronically to the Parties / their legal representatives by email.
This Order is further uploaded to the electronic
file of this matter
on Caselines/CourtOnline by the Judge’s secretary. The date of
this order is deemed to be 25 June 2026.
JUDGMENT
CORAM: LIEBENBERG AJ
(with whom DU PLESSIS J agrees)
[1]
This is an appeal from the Magistrates’
Court dismissing the first appellant’s counterclaim and
ordering the second
appellant to pay the costs of the respondents in
the court below.
The first appellant’s
appeal
[2]
The crips issue is whether the first
respondent’s email of 24 April 2019 constituted a repudiation
of the sale agreement concluded
between the parties and if so, the
monetary consequences thereof.
[3]
The first appellant regarded the email as a
repudiation, which she accepted and cancelled the sale agreement.
The respondents
contend for the contrary and the Magistrate found for
the respondents on this score.
[4]
The facts in the matter are to a large
extent common cause. On 12 June 2018, the respondents, acting
jointly, purchased a property
from the first appellant for the amount
of R 1 950 000.00. The sale agreement was subject to two
suspensive conditions. The
first suspensive condition was that a
property situated at 5[…] D[…] Avenue, F[…], is
sold within ninety days.
The other suspensive condition was that the
respondents obtain a bond for an amount of R 1 950 000.00.
[5]
The D[…] Avenue property was sold,
and Absa Bank granted the appellants a bond in the amount of R 1 765
000.00, which was
less than the amount applied for. However, in terms
of the express terms of the agreement of sale, the first defendant
was entitled
to accept the grant for a lesser amount and regard the
condition as being fulfilled. It is common cause that both suspensive
conditions
were fulfilled and that the sale agreement became
unconditional.
[6]
It is common cause that the second
defendant proceeded with the preparation of documentation to obtain
the transfer of the property
into the names of the plaintiffs and
that the Deeds Office ascertained that the first respondent was an
unrehabilitated insolvent.
Absa Bank withdrew the bond on this
discovery.
[7]
The respondents and the first appellant
then, with the assistance of the transferring attorney, prepared a
memorandum of agreement
in order to create circumstances in terms
whereof the first appellant accommodates the first and second
respondents by providing
them with an opportunity to apply for the
rehabilitation of the first respondent or to apply for a bond in the
name of the second
respondent or to wait until the end of May 2019,
by which date the first respondent would have become rehabilitated.
[8]
It is common cause on the evidence that the
first respondent did not apply for his rehabilitation and neither did
the second respondent
apply for a bond as is envisaged in the
memorandum of the agreement.
[9]
There is no debate that the first
respondent on 24 April 2019 sent an email to the conveyancer which
read as follows:
“
There
is no use in applying for the 1.95 mil bond, we want to sort out the
problem beforehand. We suggest a reduction in the selling
price to
accommodate the issues at hand. From here we will apply for the bond,
the seller needs to agree to this, it is not a small
issue and needs
to be taken seriously. The defect needs to be repaired or new selling
price must be negotiated and then we will
apply for the bond. If the
seller is not prepared to look at this we need to look at other
options therefore applying for a bond
on this property will be costly
and a waste of time if everything is not sorted out beforehand.”
[10]
The fist appellant viewed the email as
a repudiation of the agreement which she accepted and cancelled the
sale agreement.
[11]
Repudiation
of a contract occurs where a party to a contract without lawful
grounds indicates to the other party whether by means
or conduct a
deliberate an unequivocal intention to no longer be bound by the
contract. If the other party elects to accept
the repudiation
the contract comes to an end upon the communication of the acceptance
of the repudiation to the party who has repudiated.
[1]
[12]
On
a plain reading of the email, it is evident that the first respondent
sought to renegotiate material terms of the sale agreement,
including
the purchase price of the property and his obligation to obtain bond
finance for the purchase price. He also sought
to raise
additional defects beyond those already identified in the sale
agreement. What was envisaged was the renegotiation
of a new
agreement that would be at odds with the terms of the extant sale
agreement. An objective interpretation of the
email marks it a
clear intention not to be bound by the extant sale agreement, which
renders it a repudiation. Emphasis on
the second respondent’s
subjective intention to remain bound by the sale agreement is
misplaced, as the enquiry for repudiation
is a matter of perception
rather than intention.
[2]
[13]
The question is whether a reasonable person
would conclude that proper performance, in accordance with the
contract, will not be
forthcoming. The email clearly indicated that
the respondents no longer wish to proceed with the sale at the
existing price, nor
would they take reasonable steps to obtain the
bond finance contemplated under the sale agreement. A generous
interpretation might
be that the respondents were still interested in
buying, but only on new terms. But even on such a generous reading,
the email
amounts to a repudiation, as it clearly states that it
cannot perform under the current agreement and proposes a wholly new
deal.
[14]
In the result, the court below erred in its
assessment that the email did not constitute a repudiation of the
sale agreement.
The email constituted a repudiation of the sale
agreement, and the first appellant was entitled and in fact accepted
the repudiation.
The sale agreement was consequently validly
cancelled.
[15]
Following the valid cancellation of the
sale agreement, the first appellant was entitled to retain as
rouwkoop
the amount of R 78 702.00 paid by the respondents. The
respondents were not entitled to a reimbursement of the amount.
The reasoning of the court below cannot be upheld on this score.
The terms of the sale agreement entitle the first appellant
to retain
the amount, and the court below erred in ordering repayment of the
amount to the respondents.
[16]
The cancellation of the sale agreement gave
rise to the respondents’ obligation to pay the estate agent’s
commission
in accordance with the terms of the sale agreement.
The estate agent’s claim for commission was ceded to the first
appellant against payment of an amount of R 5 000.00 and she
sought payment thereof from the respondents. There is no
dispute regarding the validity of the cession itself. The fact
that the estate agent “wrote off” the claim in
its books
of account does not affect the validity of the cession. In
terms of the sale agreement, the respondents would be
liable for the
commission in the event of the sale being cancelled as a result of
their actions or inactions. The cancellation
of the sale
agreement was because of the repudiation by the first respondent.
Consequently, the respondents became liable
to pay the estate agent
and the first appellant is entitled to the amount due by virtue of
the cession.
The second appellant’s
appeal
[17]
The second defendant takes issue with the
costs order granted against it in favour of the second respondent,
because that order
suggests that the stance adopted by the second
appellant was not justified.
[18]
The second appellant, as conveyancer, acted
in the position of a stakeholder who held monies in trust to be paid
out to the party
entitled to such funds. In the event of a
dispute, the dispute must be decided by the parties or a court before
any payout
can be made. As a stakeholder, the second appellant
does not venture into the issues in dispute and is not mandated to
resolve
such a dispute.
[19]
Once there was a dispute between the first
appellant and the respondents as to who had repudiated the sale
agreement and who was
entitled to the funds held in trust, the second
appellant was required to adopt the stance it adopted. It could not
pay the funds
out to any party until the dispute was resolved.
[20]
Faced with the litigation, which included a
conditional counterclaim by the first appellant, the second appellant
was entitled to
participate in the litigation. There was
therefore no factual or legal basis for the court below to order the
second
appellant as a stakeholder to pay the costs of the
respondents. The judgment of the court below is silent on its
reasoning
for the costs order, which entitles this court to
reconsider the exercise of the discretion
de
novo
. Had the learned Magistrate
exercised her discretion judiciously, based on the correct facts and
principles, the Magistrate
would have made no order as to costs in
relation to the claims against the second appellant.
Order
[21]
In the result, the following order is made:
1.
The first appellant’s appeal is
upheld with costs and the order of the court below is set aside and
replaced with the following:
1.1.
The second respondent’s claim for
payment of the amount of R 78 702,00 is dismissed with
costs;
1.2.
Judgment is granted in favour of the first
appellant against the first and second respondents, jointly and
severally, for the payment
of the sum of R 146 250.00 together with
interest on the sum of R 146 250.00 calculated at the rate of 7% per
annum from 20 October
2021 to date of payment;
1.3.
Costs of suit.
2.
The second appellant’s appeal is
upheld with costs, and the order of the court below is set aside and
replaced with the following:
2.1.
Each party is to pay its own costs.
SARITA LIEBENBERG
ACTING JUDGE OF THE
HIGH COURT
GAUTENG DIVISION,
JOHANNESBURG
For the first appellant:
Adv AP Bruwer instructed
by Schalk Brits Attorneys
For the second appellant:
Adv M Sethaba instructed
by Eversheds Sutherland (SA) Inc.
For the first and second
respondents:
Adv M Joubert instructed
by Rogers Kruger Attorneys
Heard on 1 June 2026
Judgment on 25 June 2026
[1]
Nash
v Golden Dumps (Pty) Ltd
1985 (3) SA 1
A at 22D-F; Datacolor
International (Pty) Ltd v Intamarket (Pty) Ltd (“Datacolor”)
at para 16.
[2]
Datacolor
above at para 17.