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THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGEMENT
Not Reportable
Case No: 2025-211597
In the matter between:
KIVESH DAYANATH DHANRAJ APPLICANT
and
CLIVE GOMIS FIRST RESPONDENT
PAMELA PATRICIA GOMIS SECOND RESPONDENT
GALETTI COMMERCIAL AND THIRD RESPONDENT
INDUSTRIAL (OTY) LTD
Coram: Yake AJ
Heard: 21 May 2026
Delivered: Electronically on 31 August 2026
Summary: Contract – Specific performance - auction mandate not void ab
initio–condition of sale valid, countersigned by the third respondent on behalf of
the first and second respondent - actual and ostensible authority -–Stay of
proceedings refused– discretion of the court –right to claim damages remedy
available to the first and second respondent.
ORDER
1. The applicant’s claim for specific performance is granted.
2. The first and second respondents are directed to perform their obligations
under the contract of sale concluded pursuant to the auction mandate and
conditions of sale, including effecting transfer of the property including
to take all necessary steps to effecting transfer of the property described
as Erf 1[...], Atlantis Industrial, Cape Town, also known as [...] C[...]
S[...] Street, Atlantis Industrial, Cape Town, into the name of the
applicant.
3. In the event that the first and second respondents fail to take such steps
within fourteen (14) days of this order, the Sheriff of the Court and/or a
duly authorised representative of the third respondent is empowered to
take such steps on their behalf to give effect to the transfer.
4. The first and second respondents’ counter -application for a stay of
proceedings pending the determination of the declaratory action under
case number 2026/109735 is dismissed.
5. The first and the second respondents are ordered to pay costs of the
application, jointly and severally, one paying the other absolved, and such
cost to include counsels’ costs on scale B.
JUDGMENT
YAKE AJ:
Introduction
[1] The respondents are the registered owners of immovable property
situated at Erf 1[...], Atlantis Industrial, Cape Town, also known as [...] C[...]
S[...] Street, Atlantis Industrial, Cape Town (‘the property’). On 23 May 2025,
they concluded a written Auction Mandate (‘the mandate’) with the third
respondent, duly represented by Mr Wesley Cowan. The mandate was signed by
themselves and countersigned by the third respondent on 29 May 2025 and was
to commence upon signature by the last party and terminate on the later of 90
business days thereafter, or 45 business days after the auction date, being 6
October 2025. The salient terms of the mandate were the following:
(a) The respondents appointed the third respondent as auctioneer to
dispose of the property on the terms and conditions set out in the
mandate;
(b) The respondents conferred upon the third respondent a sole and
exclusive mandate to market and sell the property by way of public
auction or private treaty, and to do all things necessary to attend to
the auction, subject to the mandate’s terms and conditions;
(c) A reserve price was fixed at R3 000 000 (three million rand),
excluding VAT, or such lesser price as might be agreed to and
accepted in writing;
(d) The auction date and time were set for 3 July 2025 at 12h00; and
(e) The respondents acknowledged that they had read and understood
the third respondent’s conditions of sale and undertook to be bound
by the terms thereof.
[2] The mandate further provides that, in the event of the highest bid or a bid
exceeding the reserve price being obtained at the auction, the third respondent
would procure the purchaser’s signature on the conditions of sale and deliver
same to the respondents for consideration and countersignature . The
respondents, subject to clause 7.1.5, retained the discretion to accept or reject
the offer within five business days of signature by the purchaser, failing which
the offer would lapse.1
[3] In the event that the auctioneer secures a written offer to purchase the
property for a price equal or greater than the reserve price in respect of either an
auction sale or private treaty sale, then the seller shall be obligated to
countersign the conditions of sale or private treaty sale within five business days
following the date of signature of either agreement by the purchaser and should
the seller fail or refuse to do so, then the auctioneer shall be entitled (but not
obliged) to sign such agreement on the seller’s behalf and the seller hereby
appoints the auctioneer as the seller’s duly authorised agent and attorney in rem
suam for such purpose.2
[4] Should either party breach its obligations in terms of the mandate and fail
to remedy such breach within five days of written notice from the aggrieved
party calling upon the offending party to remedy such breach, the aggrieved
party shall be entitled to either enforce specific performance of the offending
party or to cancel the mandate immediately on written notice to the offending
party, and in either event to recover damages from the offending party.3
[5] Pursuant to the mandate, the third respondent advertised and arranged for
the auction which was held on 3 July 2025 at 12h00. At the end of the auction,
the applicant emerged as the highest bidder, offering the reserve price of R3 100
1 Record page 002-14 clause 1.1.3.
2 Record page 002-16 clause 7.1.5.
3 Record page 002-17 clause 10.1.
000 (three million one hundred thousand rand). A written agreement styled
‘conditions of sale’ was executed and duly signed by applicant.
[6] In terms of clause 1.1.3 of the mandate, the respondents were obliged to
signify their acceptance or rejection of the offer within five business days of
signature, failing which clause 7.1.5 expressly authorised the third respondent to
sign on their behalf. Notwithstanding the conditions of sale being presented to
them on the same day by the third respondent for countersignature, the
respondents failed or refused to countersign. Consequently, on 17 July 2025,
Ms Antoinette Chait, acting in her capacity as representative of the third
respondent, affixed her signature to the conditions of sale on behalf of the
respondents. This act purported to conclude a valid and binding agreement
between the applicant and the respondents.
[7] Following the countersignature, the third respondent caused a letter to be
addressed to the respondents on 22 July 2025, advising them that it had signed
the agreement on their behalf. On 24 July 2025, the respondents in response
denied that the third respondent had any mandate to countersign on their behalf
and purporting to revoke the mandate. This resulted in the applicant’s attorneys
addressing a letter to the respondents on 30 September 2025, demanding
compliance with the obligations arising under the mandate and the conditions of
sale. The respondents failed and or refused to comply.
[8] The respondents’ refusal to perform precipitated the applicant’s
invocation of clause 10 of the mandate which stipulates that in the event of
either party breaching any of its obligations under the mandate and failing to
remedy such breach within five days after receipt of written notice from the
aggrieved party calling upon the offending party to do so, the aggrieved party
shall be entitled either to enforce specific performance of the offending party’s
obligation or to cancel the mandate forthwith on written notice, and in either
event to recover damages from the offending party.
[9] Pursuant thereto, the applicant instituted the present application, which
was served on the respondents on 27 November 2025. The respondents filed
their notice of intention to oppose on 10 April 2026, followed by their
answering affidavit on 17 April 2026. The applicant thereafter delivered his
replying affidavit on 30 April 2026. The matter was duly set down for hearing
on 21 May 2026.
[10] On 12 May 2026, the respondents instituted action proceedings under
case number 2026/109735. In that action they seek, first, a declaratory order that
the mandate is void ab initio on account of an alleged lack of consensus
between themselves and the third respondent; and secondly, an order declaring
the conditions of sale void by reason of the third respondent’s purported lack of
authority. On 14 May 2026, four days prior to the scheduled hearing, the
respondents filed a counter -application in which they sought a stay of the
present proceedings pending the determination of the aforesaid action. That
counter-application was opposed by the applicant on 15 May 2026.
[11] The third respondent, while not opposing the applicant’s claim for
specific performance application, has entered opposition to the respondents’
counter-application for a stay of proceedings . The third respondent maintains
that the mandate and conditions of sale were validly concluded and that the
respondents are bound thereby.
Issues for determination
[12] Against the backdrop of the facts outlined above ; the relief sought by the
applicant, the opposition advanced by the respondents, together with their
counter-application, the following issues arise for determination:
(a) Whether the auction mandate concluded between the respondents
and the third respondent is void ab initio for want of consensus.
(b) Whether the third respondent lacked the requisite authority to
countersign the conditions of sale on behalf of the respondents.
(c) Whether the conditions of sale are rendered invalid by reason of
the third respondent’s alleged lack of authority to countersign the
agreement on behalf of the respondents.
(d) Whether the respondents have established a proper basis for the
stay of these proceedings pending the determination of the
declaratory relief instituted under case number 2026/109735.
(e) Whether, on a proper construction of the mandate and conditions of
sale, the applicant is entitled to the relief of specific performance
compelling transfer of the property.
[13] These issues will be addressed in turn, with reference to the applicable
principles of law and the evidence placed before the Court.
Analysis
Validity of the Auction Mandate
[14] The starting point is that the principle of consensus ad idem is the
foundation of contractual validity . A contract is valid and enforceable only
where the parties are ad idem on its material terms. Absent consensus on
essential terms , no binding mandate can arise, and any purported mandate or
contract is void ab initio.4 This is the foundation of the respondents’ claim in
this matter. However, the law equally recognises that in certain instances, a
contract purportedly concluded on behalf of another may nonetheless be
4 Jordan v Farber Case [2009] ZANCHC 81 15 December 2009 (unreported).
enforceable, provided the person acting possessed actual authority or ostensible
authority to do so.
[15] I shall in due course revert to the question of authority ; both actual and
ostensible, when considering whether the third respondent was empowered to
countersign the conditions of sale and the respondents’ ensuing challenge
thereto.
[16] Ms Thiart, counsel for the respondents, contends that the auction mandate
is void ab initio for want of consensus. The foundation of this submission is that
the respondents are uneducated, do not speak English, and possess only limited
ability to read and write in that language. In consequence, counsel submits, the
representatives of the third respondent, Mr Ridgway and his colleague, attended
at the respondent’s property on 23 May 2025 to explain the mandate to them in
Afrikaans.
[17] Counsel further contends that the respondents were informed that the
reserve price could not be fixed at R5 700 000, as they had requested, since such
a figure would deter prospective buyers. Instead, they were advised that the
reserve price would be set at R3 000 000 to encourage attendance and bidding at
the auction. It was further represented that, notwithstanding such reserve, the
respondents would not be bound to accept any offer below R5 700 000, even if
above the reserve price, and that they retained the right to “walk away” from the
sale should the offer fail to meet their expectations.
[18] It is contended that, believing the aforesaid representations concerning
the reserve price to be true, the respondents affixed their signatures to the
mandate. Counsel submits that, had the respondents appreciated that the
mandate bound them to sell the property upon the auctioneer securing a written
offer equal to or exceeding the reserve price of R3 000 000, they would not have
signed. On this footing, it is argued that the respondents did not fully
comprehend the import of the mandate, having been misled as to the effect of
the reserve price.
[19] Counsel placed r eliance upon the authority of Spenmac (Pty) Ltd v
Tatrim CC5 (‘Spenmac’), wherein the Supreme Court of Appeal dismissed the
appeal and upheld the High Court’s order declaring the agreement void ab initio
on the basis of misrepresentation . Counsel contends that the reasoning in
Spenmac finds application in the present matter. She submits that the
respondents were induced to enter into the mandate under false pretences,
having been misled as to the terms governing the reserve price.
[20] Counsel further submitted that this Court is not presently in a position to
adjudicate the question of misrepresentation, which properly falls to be
determined at trial upon the tendering of evidence by Mr Fourie of Fourie,
Basson & Veldtman Attorneys, the firm engaged to attend to the conveyancing
should the property be sold. In the result, counsel maintains that the mandate is
void ab initio, as no true consensus was reached regarding the reserve price. It is
notable, however, that no confirmatory affidavit was filed by Mr Fourie to set
out the substance of the evidence he would tender were the applicant’s
application not to succeed.
[21] Conversely, Mr Steyn, counsel for the applicant, contends that Spenmac
finds no application in the present matter. In Spenmac, it was submitted, the
misrepresentation arose from a mutual error: both parties laboured under the
mistaken belief that the owner of the unit possessed a right to veto any
subdivision of the adjoining unit, which was not the case. In consequence, there
was no consensus as to the subject matter, namely the nature of the unit.
5 Spenmac (Pty) Ltd v Tatrim CC [2014] ZASCA; 2015 (3) SA 46 (SCA); [2014] 2 All SA 549.
[22] Counsel argues that the present matter is distinguishable from Spenmac,
in that in the present matter c onsensus was achieved, as the respondents signed
the written mandate, which was thereafter countersigned by the third
respondent. The mandate expressly records the respondents’ acknowledgment
of the auctioneer’s conditions of sale and their agreement to be bound thereby.
Their subsequent denial of consensus, counsel submits, is inconsistent with their
conduct of affixing their signature in the written mandate.
[23] Counsel further submits that any dispute between the respondents and the
third respondent is collateral to the applicant’s claim for specific performance. It
was submitted that the respondents have not challenged the validity of the sale
agreement concluded with the applicant. At most, their version may ground a
claim for damages against the third respondent, but it cannot serve to invalidate
the mandate or defeat the applicant’s contractual rights.
[24] Counsel further submitted that, even if the sale agreement was tainted by
misrepresentation, the respondents cannot evade liability by resiling from the
agreement concluded with the applicant, having regard to the doctrine of
ostensible authority. Reliance is placed upon the authority of JZ Brink v
Humphries & Jewell (Pty) Ltd,6 wherein it was held that a contract may only be
declared void ab initio where the misrepresentation induces a fundamental
mistake. Counsel contends that no such fundamental error is present in the
instant matter. Accordingly, the mandate cannot be impugned on this basis, and
the respondents remain bound by its terms.
[25] Similarly, Mr Smith, appearing on behalf of the third respondent, a ligned
himself with the submissions advanced by Mr Steyn, contending that Spenmac
6 JZ Brink v Humphries & Jewel (PTY) Ltd [2004] ZASCA 131; [2005] 2 All SA 343 (SCA); 2005 (2) SA 419
(SCA).
finds no application in the present matter. Counsel argued that there was mutual
agreement between the respondents and the third respondent to execute the
mandate, and that such execution was undertaken willingly . It was further
submitted that it would be commercially irrational for the third respondent to
propose a bidding price and to proceed with the auction in circumstances where
he was aware that such price did not represent the true bidding value. Counsel
maintained that the respondents were content with the mandate; had they been
dissatisfied, they possessed the option to terminate it, which they elected not to
exercise. Their dissatisfaction, it was contended, lies not with the mandate itself,
but with the purchase price ultimately achieved. In the result, Mr Smith
submitted that no misrepresentation occurred, and that the mandate is
accordingly not void ab initio.
[26] It is trite that the respondents’ case is premised upon the assertion that the
third respondent misrepresented to them that they would not be bound to accept
the reserve price should they be dissatisfied with the amount offered. On this
footing, they maintain that no true agreement was reached between themselves
and the third respondent, and that the mandate is accordingly unenforceable. It
is therefore apposite to determine whether misrepresentation has indeed
occurred.
[27] Misrepresentation is defined by the Supreme Court of Appeal
in Quartermark Investments (Pty) Ltd v Mkhwanazi and Another ,7 ‘as a false
statement of fact, not law or opinion, made by one party to another before or at
the time of the contract, concerning some matter or circumstance relating to it’.
The court went further to state that:8
7 Quartermark Investments (Pty) Ltd v Mkhwanazi and Another [2013] ZASCA 150; 2014 (3) SA 96 (SCA);
[2014] 1 All SA 22 (SCA) para 10.
8 Ibid para 10.
‘A party seeking to avoid a contract on the ground of misrepresentation must prove
that: (a) the representation relied upon was made; (b) it was a representation as to a
fact; (c) the representation was false; (d) it was material, in the sense that it would
have influenced a reasonable person to enter into the contract; and (e) it was intended
to induce the person to whom it was made to enter into the transaction sought to be
avoided.’
[28] In determining whether consensus was achieved, the Court must consider
both the express terms of the mandate and the conduct of the parties. The
mandate; reduced to writing and signed by the respondents, expressly appointed
the third respondent as auctioneer, conferred upon him a sole and exclusive
mandate to market and sell the property by way of auction or private treaty, and
fixed a reserve price of R3 000 000. The mandate further recorded the
respondents retained the discretion to accept or reject the offer within five
business days of signature , failing which the third respondent will sign on their
behalf. These provisions are clear and unequivocal.
[29] It is common cause that the property was sold at auction on 3 July 2025 at
the reserve price of R3 100 000. It is not disputed that, on the very day of the
auction, the third respondent informed the respondents that the property had
been sold at the reserve price and that they were required to countersign the
conditions of sale, which had already been signed by the applicant. The
respondents failed to do so. Thereafter, the third respondent addressed
numerous WhatsApp communications, urging them either to sign the conditions
of sale or to raise any queries regarding the mandate. Once again, the
respondents failed to act, and the first respondent expressly indicated that he
had no questions concerning the mandate. In my view, had the respondents
entertained any issues with the mandate or the conditions of sale, this was the
entertained any issues with the mandate or the conditions of sale, this was the
opportune moment to raise such concerns. Their failure to do so underscores
their acquiescence and is inconsistent with their subsequent denial of consensus.
[30] On 7 July 2025, the third respondent reminded the respondents that the
five-day period afforded to them to accept or reject the offer was expiring.
Despite repeated reminders, the respondents did not exercise their contractual
right to reject the offer . On the contrary, by their own admission, they were
fully aware that they were not bound to accept any price below R5 700 000. Yet,
notwithstanding such knowledge, they failed to notify the third respondent of
any rejection of the offer.
[31] The respondents’ contention that the third respondent misrepresented to
them that they could “walk away” from the offer if dissatisfied with the reserve
price is not borne out by the facts. The facts show that the third respondent did
precisely what the mandate required: he reminded them that their time to
exercise the right of election was expiring. Their failure to act upon that advice
cannot be transmuted into evidence of misrepresentation. The respondents’
deliberate inaction, coupled with the first respondent’s express indication that
he had no questions with the mandate, constitutes tacit acceptance. It
underscores their full appreciation of the reserve price and dispels any
suggestion of misrepresentation. Rather, it supports the inference of
acquiescence.
[32] The respondents’ allegation of misrepresentation remains wholly
uncorroborated. Save for their oral assertions, no documentary or independent
evidence has been tendered to substantiate the claim. The letter from Mr Fourie,
being premised solely upon what he was told by the respondents, does not
advance their case. On the contrary, it underscores the absence of any
independent confirmation and cannot serve to establish that misrepresentation in
fact occurred. Furthermore, the respondents’ reliance upon their limited
education and linguistic constraints cannot, without more, suffice to displace the
presumption of consensus. On the contrary, the record reflects that the mandate
presumption of consensus. On the contrary, the record reflects that the mandate
was explained to them in Afrikaans, their home language, whereafter they duly
appended their signatures. Absent evidence of misrepresentation, duress, or
mistake, the mere assertion of non-consensus cannot suffice to invalidate a
written agreement. The presumption of consensus arising from the respondents’
signatures on the written mandate accordingly stands.
[33] Reliance by Ms Thiart upon the Spenmac matter is in my view misplaced.
There is a clear distinction between Spenmac and the present case. In Spenmac,
the agreement was vitiated by a mutual error at the time of its conclusion. No
such circumstance obtains here. On the facts presented, the respondents engaged
with the third respondent in relation to the auction process, and the mandate was
executed pursuant thereto. Consensus was present, and the mandate validly
came into existence. The respondents were fully apprised of its terms and duly
affixed their signatures thereto. At no stage did they impugn its validity. They
cannot now, belatedly, seek to challenge its enforceability merely because they
are dissatisfied with the purchase price ultimately achieved.
[34] I subscribe with the dictum of JZ Brink wherein it was held that a contract
may only be declared void ab initio where the misrepresentation induces a
fundamental mistake. 9 In my view, no misrepresentation of any kind by the
third respondent was present in this matter . Even if I were to be persuaded that
the mandate was tainted by misrepresentation — which I am not ; the
respondents would nonetheless remain bound. The doctrine of ostensible
authority would operate to protect the applicant, who contracted in good faith
on the strength of the mandate. If any remedy lies for the respondents, it would
be in the form of a claim for damages against the third respondent, not in
avoidance of the mandate or the sale agreement.
9 JZ Brink v Humphries & Jewel (PTY) Ltd [2004] ZASCA 131; [2005] 2 All SA 343 (SCA); 2005 (2) SA 419
(SCA).
[35] Accordingly, I find that the mandate is not void ab initio , as the
respondents contend. On the contrary, the mandate is binding upon them. It
therefore follows that the mandate was validly concluded and is enforceable
against the respondents. Consequently, their challenge to the validity of the
mandate on the basis of lack of consensus is without merit and must fail.
Lack of authority
[36] Having found that the mandate was validly concluded and enforceable,
the enquiry now turns to whether the third respondent possessed the requisite
authority to countersign the conditions of sale on behalf of the respondents,
thereby binding them to the agreement concluded with the applicant. This
enquiry requires consideration of the scope of the mandate conferred upon the
third respondent, the nature of the authority envisaged therein; whether actual
authority or ostensible authority is present ; and the effect of the respondents’
subsequent conduct in relation to the conditions of sale.
[37] The applicant contends that the mandate expressly empowered the third
respondent to conclude the transaction and to sign the conditions of sale on
behalf of the respondents. The third respondent, for his part, aligns himself with
this contention and affirms that his countersignature was affixed pursuant to the
authority conferred upon it under the mandate. The respondents, by contrast,
deny that the third respondent was authorised to countersign the conditions of
sale. They maintain that any authority to bind them contractually was absent.
Their case is that the countersignature affixed by the third respondent was ultra
vires and incapable of binding them.
[38] It is trite that where authority is absent, any purported agreement may be
rendered void or unenforceable.10 The Court must therefore determine whether
the third respondent possessed the requisite authority , whether actual or
ostensible; to bind the respondents to the conditions of sale concluded with the
applicant.
[39] The distinction between the two forms of authority is apposite. Actual
authority arises from a mandate or authority expressly or impliedly conferred by
the principal upon the agent. It is rooted in the internal relationship between
principal and agent, and where such authority exists, the agent’s acts are binding
upon the principal. By contrast, ostensible authority arises not from the internal
mandate but from the principal’s outward representations or conduct, which
induce a third party reasonably to believe that the agent is authorised. Put
differently, ostensible authority is the authority of an agent as it appears to
others.11 As such the doctrine ostensible authority serves to protect innocent
contracting parties who act in good faith on the strength of such representations,
and it operates by way of estoppel to prevent the principal from denying the
agent’s authority to the prejudice of the third party.
[40] In considering a similar question regarding an allegation about no
authority, the court in Unicab Taxis (Pty) Ltd v Kammies,12 the Court held that:
‘It is clear from the papers that Mullins was sent by Kahn to represent Unicab Taxis
and that he signed the agreement on the latter's behalf. The legal principle in this
regard had been established as far back as 1929 in the case of Monzali v Smith 1929
AD 382 at 385 where the Court held:
“Where any person, by words or conduct, represents or permits it to be represented
that another person has authority to act on his behalf, he is bound by the acts of such
10 Moraitis Investments (Pty) Ltd and Others v Montic Dairy (Pty) Ltd and Others [2017] ZASCA54; 2017 (5)
SA 508 (SCA); 3 All SA 485 (SCA) para 9.
SA 508 (SCA); 3 All SA 485 (SCA) para 9.
11 Makate v Vodacom (Pty) Ltd [2016] ZACC 13; 2016 (6) BCLR 709 (CC); 2016 (4) SA 121 (CC) para 46
12Unicab Taxis (Pty) Ltd v Kammies [2000] ZALC 150; (2000) 21 ILJ 2478 (LC) para 15 - 16.
other person with respect to anyone dealing with him as an agent on the face of any
such representation, to the same extent as if such other person had the authority
which he was so represented to have.”’ (My emphasis)
[41] Later on the Constitutional Court canvassed the matters of actual and
ostensible authority in Makate v Vodacom (Pty) Ltd. 13 The court said the
following:
‘Actual authority and ostensible or apparent authority are the opposite sides of the
same coin. If an agent wishes to perform a juristic act on behalf of a principal, the
agent requires authority to do so, for the act to bind the principal. If the principal had
conferred the necessary authority either expressly or impliedly, the agent is taken to
have actual authority. But if the principal were to deny that she had conferred the
authority, the third party who concluded the juristic act with the agent may plead
estoppel in replication. In this context, estoppel is not a form of authority but a rule to
the effect that if the principal had conducted herself in a manner that misled the third
party into believing that the agent has authority, the principal is precluded from
denying that the agent had authority.
The same misrepresentation may also lead to an appearance that the agent has the
power to act on behalf of the principal. This is known as ostensible or apparent
authority in our law. While this kind of authority may not have been conferred by the
principal, it is still taken to be the authority of the agent as it appears to others …
[T]he presence of authority is established if it is shown that a principal by words or
conduct has created an appearance that the agent has the power to act on its behalf. Nothing
more is required. The means by which that appearance is represented need not be directed at
any person. In other words, the principal need not make any representation to the person
claiming that the agent had apparent authority.’
claiming that the agent had apparent authority.’
Further the court quoting MEC for Economic Affairs provided that:14
‘It is well -established that to hold a principal liable on the basis of the agent’s
apparent authority, the representation must be rooted in the words or conduct of the
principal, and not merely that of his agent.’
13 Makate v Vodacom (Pty) Ltd supra at 14 para 45 – 47.
14 Ibid para 153.
[42] Notably, both forms of authority are present in this matter : firstly, clause
7.1.5 of the mandate which was signed by the respondents and countersigned by
the third respondent; expressly authorised the third respondent to sign the
conditions of sale. This underscores that the third respondent acted within the
scope of the mandate conferred upon him, and that his countersignature upon
the conditions of sale was sufficient to bind the respondents contractually.
Secondly, even if the actual authority were disputed, the respondents’ conduct
in permitting the third respondent to negotiate, their acquiescence during the
auction process, and failing to repudiate his actions; clothed him with ostensible
authority. The principle is well settled: where a principal, by representation or
conduct, induces reliance upon an agent’s authority, the principal is estopped
from denying such authority to the prejudice of an innocent contracting party.
[43] There is nothing on paper that demonstrates that the third respondent
acted ultra vires or without the respondents’ consent. The argument that the
respondents had already communicated their dissatisfaction with the purchase
price and considered the matter closed is undermined by the contemporaneous
WhatsApp correspondence. The WhatsApp messages demonstrate repeated
requests by Mr Ridgway, for the respondents to sign the conditions of sale. On 3
July 2025, Mr Ridgeway forwarded the conditions of sale document and sought
the respondents’ signature. No reply was forthcoming. On 4 July 2025, he again
requested to meet with the respondents, and on 7 July 2025 he reminded the
first respondent that the five -day acceptance period was expiring, expressly
asking whether there were any questions about the mandate. Interestingly, the
first respondent replied, ‘No, no question. ’ As evident, at n o stage did the
respondents raise dissatisfaction with the purchase price or assert unwillingness
respondents raise dissatisfaction with the purchase price or assert unwillingness
to proceed. Had they harboured any reservations, queries, or objections to the
mandate, they had ample opportunity to raise such concerns but elected not to
do so. This underscores that the respondents were fully aware of the contents of
the mandate and the conditions of sale.
[44] On 8 July 2025, Mr Ridgway informed the first respondent that the
applicant was willing to increase the offer and amend the conditions of sale. The
first respondent without any hesitation agreed to meet.15 This conduct is wholly
inconsistent with the respondents’ later assertion that they had already rejected
the offer and considered the matter concluded. Their subsequent attempt to
revoke the mandate cannot retrospectively invalidate acts lawfully performed
under it. Their silence in the face of repeated requests, coupled with their
express acknowledgment that no questions remained, reinforces the conclusion
that the third respondent acted within the scope of his authority when
countersigning.
[45] In my view, the applicant was entitled to assume that the countersignature
was validly affixed pursuant to authority under the circumstances. Accordingly,
I find that the third respondent possessed actual authority, or at the minimum
possessed ostensible authority, to countersign the conditions of sale, and that
such countersignature bound the respondents to the agreement concluded with
the applicant. The applicant, contracting in good faith, was entitled to rely upon
such representation.
Binding Conditions of sale
[46] Having determined that the mandate was validly concluded and that the
third respondent possessed actual or ostensible authority to countersign, the next
issue to determine is whether the conditions of sale may nonetheless be
impugned. Put differently, the question is whether the conditions of sale, signed
by the applicant and countersigned by the third respondent, were binding upon
15 WhatsApp messages p009-52 to 009-61.
the respondents. The respondents contend that the conditions of sale are invalid
by reason of the third respondent’s alleged lack of authority to bind them.
[47] This contention cannot be sustained. The conditions of sale were
executed pursuant to the mandate, which expressly authorised the third
respondent to sign it. The respondents had acknowledged in the mandate that
they had read and understood the conditions of sale and undertook to be bound
thereby. Their subsequent attempt to deny authority is contradicted by the
written mandate.
[48] It is trite that a contract may be set aside inter alia on the grounds of
misrepresentation, duress, undue influence, fraud or iustus error . In Cindi v
Commission for Conciliation, Mediation and Arbitration and others ,16 it was
held that:
‘It is in this regard trite that the validity of an agreement in terms of the general
principles of contract can be challenged on the following grounds:
o impossibility of performance.
o duress and/or undue influence.
o Misrepresentation and/or fraud.’
[49] The principle is well established: where a party has expressly undertaken
to be bound by a set of conditions and has authorised an agent to sign on its
behalf, the conditions so executed are binding unless vitiated by fraud, duress,
or material misrepresentation. None of these vitiating factors has been
established on the evidence before this Court.
[50] Where authority has been established, the countersignature operates as
the act of the principal through its agent. In such circumstances, the document
executed constitutes a valid contract of sale, enforceable against the
respondents. In the present matter, the applicant successfully bid the sum of
16 Cindi v Commission for Conciliation, Mediation and Arbitration and others [2015] ZALCJHB 236; [2015] 12
BLLR 1207; (2015) 36 ILJ 3080 (LC) para 17 – 18.
R3 100 000 at the auction and duly executed the conditions of sale. In terms of
the mandate, the respondents were required to accept or reject the offer within
five business days. They failed to do so within the stipulated period. On 17 July
2025, the third respondent’s representative affixed his signature to the
conditions of sale on behalf of the respondents, thereby purporting to conclude
the agreement.
[51] The respondents’ contention that the absence of actual authority renders
the conditions of sale void misconceives the distinction between void contracts
and contracts that are merely voidable. A contract concluded by an agent acting
without actual authority, but clothed with ostensible authority, is not void; it
binds the principal unless and until it is set aside. Equally, where the
countersignature is affixed by an agent acting pursuant to a valid mandate, it
cannot be said that the contract is void ab initio. The law recognises that the act
of the agent, when authorised, is the act of the principal. To hold otherwise
would undermine commercial certainty and permit principals to evade
obligations by retroactively disavowing their agents’ acts.
[52] Having regard to the express terms of the mandate, and in the absence of
any substantive challenge by the respondents to the validity of the conditions of
sale as concluded between the applicant and the third respondent, the contention
that the agreement was not binding upon them cannot be sustained. In my view,
the conditions of sale were validly concluded and are binding upon the
respondents. The respondents are accordingly obliged to perform in accordance
with the terms of the contract of sale.
Stay of proceedings
[53] Turning to the respondents’ counter-application for a stay of proceedings.
It is noted that this application was brought on 14 May 2026, while the main
application was already ripe for hearing on 21 May 2026. For convenience, the
parties in the counter -application will be referred to in the same manner as in
the principal application for specific performance. The respondents sought to
invoke urgency in order to secure suspension of the matter at the eleventh hour.
It is therefore incumbent upon the Court to determine the question of urgency
before considering the substantive merits of the application.
[54] It is trite that urgent applications are governed by Rule 6(12) of the
Uniform Rules of Court which provides:
‘(a) In urgent applications the court or a judge may dispense with the forms and
service provided for in these Rules and may dispose of such matter at such time and
place and is such manner and in accordance with such procedure (which shall as far as
is reasonably practicable be in terms of these Rules) as it deems fit.
(b) In every affidavit filed in support of any application under paragraph (a) of this
subrule, the applicant shall set forth explicitly the circumstances which is averred
render the matter urgent and the reasons why the applicant claims that applicant could
not be afforded substantial redress in due course.’
[55] The principles governing urgent applications require that the applicant
demonstrate circumstances justifying deviation from the ordinary rules of the
court. As such the Rule empowers the Court to dispense with the ordinary rules
relating to form and service where circumstances justify urgency. The Rule
provides for two requirements that must be set forth in the founding affidavit in
order to satisfy the requirements of the rule; firstly, the circumstances relating to
urgency which has to be explicitly set out and, secondly, the reasons why the
applicants in this matter could not be afforded substantial redress at a hearing in
due course.17 Put differently, the respondents must demonstrate genuine urgency
and must in their founding affidavit, set out explicitly the circumstances which
and must in their founding affidavit, set out explicitly the circumstances which
17 Salt and Another v Smith 1991(2) SA 186 (NM), at 187A.
render the matter urgent and the reasons why they contend that they cannot be
afforded substantial redress in due course.18
[56] Whether the respondents have succeeded in satisfying the requirements
for urgency must be determined by the contents of the founding affidavit. 19 The
Court must therefore be satisfied that the respondents will not obtain substantial
redress at a hearing in due course. Mere lip service to the requirements of Rule
6(12)(b) will not suffice.
[57] In Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a
Makin’s Furniture Manufacturers ),20 Coetzee J held with reference to Rule
6(12)(b), the following;
‘Practitioners should carefully analyse the facts of each case to determine , for the
purposes of setting the case down for a hearing , whether a greater or lesser degree of
relaxation of the Rules and of the ordinary practice of the Court is required. The
degree of relaxation should not be greater than the exigency of the case demands. It
must be commensurate therewith. Mere lip service to requirements of Rule 6 (12) ( b)
will not do and an applicant must make out a case in the founding affidavit to justify
the particular extent of the departure from the norm which is involved in the time and
day for which the matter be set down.’
[58] In assessing urgency, the Court must weigh whether the respondents have
established a genuine need for immediate relief, or whether the application
constitutes a tactical manoeuvre designed to delay adjudication of the
applicant’s claim. Only if urgency is established can the substantive application
for a stay of proceedings be entertained.
[59] Gleaning from the founding affidavit of the first respondent, the grounds
for urgency are set out in paragraphs 34 and 35 thereof. In those paragraphs, the
18 Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin’s Furniture Manufacturers) [1977]
2 All SA 156 (W) 157-158; 1977 (4) SA 135 (W) 136C-137G.
2 All SA 156 (W) 157-158; 1977 (4) SA 135 (W) 136C-137G.
19 IL&B Marcow Caterers v Greatermans [1981] 2 All SA 378 (C); SA 1981(4) SA 108(C) at 111A.
20 Ibid 23 at para 137F.
first respondent tenders an apology for bringing the application at such a late
stage, alleging that he had hoped the applicant would desist from pursuing the
matter upon receipt of their answering papers indicating an intention to institute
action proceedings. Such reasoning falls short of establishing the requisite
grounds for urgency. A mere hope that the applicant might abandon its claim
cannot justify deviation from the ordinary rules of the court. Notably, no
confirmatory affidavit was filed by the second respondent to confirm the factual
basis for urgency.
[60] In opposing the application, Mr Steyn argued that the respondents were
aware of the case as early as 17 July 2025, yet they took no steps to address it.
Instead, they harboured the hope that the proceedings would simply dissipate.
The applicant accordingly submits that any urgency is self-created.
[61] Similarly, Mr Smith contended that although summons was issued on 1 2
May 2026, the respondents had knowledge of the matter as far back as 22 July
2025 when they consulted with their erstwhile attorney, Mr JC Fourie . They
were advised of the misrepresentation and knew their right then but did nothing
to terminate the mandate or institute any litigation. Counsel argued that, in these
circumstances, there is no basis upon which urgency can be sustained as it is
self-created.
[62] From the founding affidavit of the first respondent, it is evident that the
urgency of this application is premised upon the miscalculation that, upon filing
their answering affidavit, the applicant would abandon pursuit of the matter.
This is a disturbing premise. The respondents knew as far back as 30 September
2025, when they received the letter of demand from the applicant’s attorneys,
that the applicant intended to approach the Court for specific performance
should they fail to comply.
[63] Subsequent thereto, the respondents were served with the applicant’s
application on 27 November 2025. At no stage did the applicant indicate any
intention of withdrawing the application. The respondents’ contention that they
hoped the applicant would desist after receipt of their answering affidavit is
untenable. Their answering affidavit was filed only on 17 April 2026, almost
five months after service of the application, and their papers are silent as to why
they did not at that stage bring the counter-application. The respondents are
required to explain the full period of delay or inaction. They have failed to do
so. This omission undermines their attempt to invoke urgency and renders their
explanation inadequate.
[64] What is concerning is that the respondent waited until 12 May 2026 ;
merely five days before the matter was ripe for hearing ; to issue summons. The
replying affidavit had already been filed on 30 April 2026. This sequence of
events reveals that the counter -application was not driven by genuine urgency
but was instead a dilatory tactic calculated to avoid compliance with their
contractual obligations. The respondents’ reliance on mere expectation that the
applicant might abandon its claim cannot justify the invocation of urgent relief.
The absence of a substantive factual basis renders the application procedurally
defective and undermines the assertion that immediate judicial intervention was
required.
[65] In my view, the respondents’ failure to act timeously, coupled with their
reliance on speculative expectations, militates against the grant of urgent relief.
Their conduct demonstrates that any urgency was self -created rather than
arising from objective circumstances warranting deviation from the ordinary
rules of the court. Accordingly, the Court finds that the grounds for urgency as
stated in the first respondent’s founding affidavit do not meet the requirements
of Rule 6(12)(b). On the basis of urgency alone, the counter -application stands
of Rule 6(12)(b). On the basis of urgency alone, the counter -application stands
to be dismissed.
[66] For completeness, it is necessary to consider whether there is any merit in
the respondents’ application for a stay of proceedings . The principle governing
a stay of proceedings is that the Court retains a discretion, exercised judicially,
to suspend the matter where the interests of justice so require. A stay of
proceedings will ordinarily be granted to avoid duplication, inconsistent
findings, or prejudice to a party. Conversely, where the issues are capable of
immediate resolution, and delay would occasion injustice, a stay is not
warranted. The Supreme Court of Appeal in Clipsal Australia (Pty) Ltd and
Others v Gap Distributors and Others21 confirmed that the Court enjoys an
equitable discretion to suspend proceedings. The exercise of such discretion is
not mechanical but must be informed by considerations of fairness, judicial
economy, and the avoidance of prejudice.
[67] The respondents’ counterapplication for a stay of proceedings is premised
upon the pendency of the declaratory action allegedly instituted under case
number 2026/109735 against the applicant and the third respondent . In that
action, they seek declaratory relief impugning both the mandate and the
conditions of sale. They argue that the determination of those issues is a
prerequisite to the adjudication of the present application, and that continuation
of these proceedings would be premature.
[68] In support of their application, the respondents rely upon the reasoning in
the Spenmac matter, contending that the overlap between the declaratory action
and the present application warrants suspension of the latter. They further
emphasise the prejudice they would suffer if the stay of proceedings were
refused: they have resided in the property since 2021 with four children and one
grandchild; they face a municipal debt of R412 315.36 which they intended to
discharge from the proceeds of sale; and they assert that the sale price of
discharge from the proceeds of sale; and they assert that the sale price of
21 Clipsal Australia (Pty) Ltd and others v Gap Distributors and others [2009] ZASCA 49; [2009] 3 All SA 491
(SCA); 2009 BIP 251 (SCA); 2010 (2) SA 289 (SCA) para 19.
R3 100 000 would not enable them to both settle their debt and acquire
alternative accommodation. They maintain that refusal of the stay would result
in the loss of their home and livelihood.
[69] The application is opposed by both the applicant and the third respondent.
Mr Steyn submits that there are no prospects of success in the respondents’
application. Counsel emphasises that the trial in the declaratory action will, in
all probability, only be heard in 2028; a delay of which the respondents are fully
aware. He contends that it would not be in the interests of justice for the present
matter to be stayed pending such distant proceedings, as this would unjustly
defer the applicant’s right to expeditious relief.
[70] Similarly, Mr Smith argued that the respondents’ reliance on the pending
action is misplaced, given their prior knowledge of the matter and the protracted
timeline before trial. Counsel contends that there is no legitimate basis upon
which the stay of proceedings should be granted. In addition, Mr Smith argues
that the grant of such relief would be contrary to the interests of justice, as it
would unduly delay the applicant’s right to expeditious adjudication. Moreover,
counsel points out that the remedy sought in the respondents’ summons is
misconceived. Instead of seeking declaratory relief, the respondents ought
properly to have claimed damages against the third respondent if they believed
themselves aggrieved. The reliance on declaratory proceedings, in
circumstances where damages would have been the appropriate remedy,
underscores the lack of merit in the respondents’ case.
[71] It is trite that the grant of a stay of proceedings is a discretionary remedy
and will not be granted merely for the asking . The Court must be satisfied that
the interests of justice warrant such relief. The discretion is exercised with
reference to considerations of convenience, fairness, and the avoidance of
prejudice. A stay will not lightly be granted where its effect would be to delay
the enforcement of a valid contractual right.
[72] The party seeking for a stay must demonstrate that the pending
proceedings are directly relevant to the issues before the Court, and that the
determination of those proceedings will materially affect or dispose of the
present matter. The Court must also weigh the competing interests of expedition
and finality against the avoidance of duplication and further guard against
unnecessary delay in the resolution of the application. Where the issues in the
pending action overlap substantially with those in the application, and where the
risk of conflicting judgments is real, a stay of proceedings may be warranted.
Conversely, where the application is capable of determination on its own
footing, without dependence on the outcome of the action, the interests of
justice may militate against a stay. Ultimately, the enquiry is whether the grant
of a stay will best serve the proper administration of justice, balancing the need
for judicial economy with the parties’ right to have their disputes resolved
without undue delay.
[73] The respondents have not advanced any cogent reasons as to why they
belatedly instituted an action seeking declaratory relief. Their reliance on the
alleged voidness of the mandate and conditions of sale has already been
considered and found to be without merit. Furthermore, their reliance on
personal hardship, while not irrelevant, cannot by itself dictate the exercise of
discretion. The enquiry remains whether the declaratory action is so integrally
connected to the present application that the latter cannot properly be
determined without awaiting the outcome of the former. Having regard to the
applicant’s entitlement to expeditious relief, particularly in relation to transfer
of the property, the respondents’ case falls short.
[74] Moreover, the declaratory action appears to replicate the issues already
before this Court. The validity of the mandate and the conditions of sale are
squarely in issue here. To stay these proceedings pending the outcome of
another action on the same issues would serve no purpose other than duplication
and delay. The respondents have not demonstrated that the outcome of the
declaratory action will necessarily dispose of the issues raised herein. Nor have
they shown that the continuation of the application will occasion prejudice
beyond the ordinary burdens of litigation. On the contrary, the applicant has
already performed its obligations under the conditions of sale and is entitled to
transfer of the property. To stay these proceedings would unjustly postpone the
applicant’s right to specific performance and undermine the efficacy of the
auction process.
[75] The declaratory action is directed at the very issues already before this
Court; namely, the authority of the third respondent and the validity of the
conditions of sale. To stay these proceedings would serve only to postpone the
inevitable adjudication of questions that fall squarely within the Court’s
competence here and now. Moreover, the applicant has a direct and pressing
interest in the expeditious resolution of the dispute, particularly in relation to the
transfer of property. The respondents, having themselves participated in the
negotiation and execution of the agreement, cannot rely upon the pendency of a
parallel action to defer performance indefinitely.
[76] In the exercise of discretion, I find that no compelling basis exists to stay
these proceedings. The relief sought in this application is capable of
determination without awaiting the outcome of the declaratory action. In these
circumstances, the interests of justice do not favour the grant of a stay of
proceedings but favour their continuation to finality. Accordingly, the
counter-application must fail. The proceedings will not be stayed, and the
counter-application must fail. The proceedings will not be stayed, and the
applicant’s claim for specific performance falls to be determined on its merits.
Specific performance
[77] Having disposed of the counter application for a stay of proceedings , I
turn to the applicant’s claim for specific performance. The applicant seeks
immediate enforcement of contractual obligations arising from the mandate and
conditions of sale. The relief sought is quintessentially one of compelling
performance in accordance with the agreement concluded between the parties.
[78] It is well established that specific performance is a primary remedy for
breach of contract and seeks to ensure that the other contracting party performs
as he undertook to do. 22 It is premised upon the principle that a party to a valid
and binding contract is entitled, as of right, to demand performance of the
obligations undertaken by the other contracting party. 23 Specific performance,
which an innocent party may choose to enforce, is an order to perform a
specified act or to pay money in pursuance of a contractual obligation 24 Once
the applicant has proved his case, he is by law entitled to specific performance
and his claim will be granted subject to the court’s discretion.
[79] The locus classicus dealing with specific performance is the judgment of
Innes CJ in Farmers’ Co-op Society (Reg) v Berry25 where the court held that:
‘Prima facie every party to a binding agreement who is ready to carry out his own
obligation under it has a right to demand from the other party, so far as it is possible, a
performance of his undertaking in terms of the contract. As remarked by Kotze , C.J.,
in Thompson v Pullinger (1 O.R., at p . 301), “the right of a plaintiff to the specific
performance of a contract where the defendant is in a position to do so is beyond all
doubt.” It is true that Courts will exercise a discretion in determining whether or not
decrees of specific performance should be made. They will not, of course, be issued
22 Van Huyssteen et al Contract: General Principles 4ed, 2012 at 327.
23 See LTC Harms, Amler’s Pleadings, 10ed at 116.
23 See LTC Harms, Amler’s Pleadings, 10ed at 116.
24 RH Christie The Law of Contract 5ed, 2006 at 522.
25 Farmers’ Co-op Society (Reg) v Berry 1912 AD 343 at 350.:
where it is impossible for the defendant to comply with them. And there are many
cases in which justice between the parties can be fully and conveniently done by an
award of damages. But that is a different thing from saying that a defendant who has
broken his undertaking has the option to purge his default by the payment of money.
For in the words of Storey (Equity Jurisprudence , Sec. 717 (a) ) “it is against
conscience that a party should have a right of election whether he would perform his
contract or only pay damages for breach of it. ” The election is rather with the injured
party, subject to the discretion of the Court.”
[80] As such a party wishing to claim specific performance in terms of the
contract must (a) allege and prove the terms of the contract; (b) allege and prove
compliance with any antecedent or reciprocal obligations or must tender to
perform them. 26 (c) allege non -performance by the defendant , and (d) claim
specific performance. The reverse onus lies with the defendant to allege and
prove performance. If the party is successful in proving his case, the court has a
discretion to grant his claim. The discretion must be exercised with reference to
the facts as they exist when performance is claimed and not as they were when
the contract was concluded.
[81] De Villiers AJA in Haynes v King Williamstown Municipality, 27 held:
‘It is, however, equally settled law with us that although the Court will as far as
possible give effect to a plaintiff's choice to claim specific performance it has a
discretion in a fitting case to refuse to decree specific performance and leave the
plaintiff to claim and prove his id quad interest. The discretion which a Court enjoys
although it must be exercised judicially is not confined to specific types of cases, nor
is it circumscribed by rigid rules. Each case must be judged in the light of its own
circumstances. As examples of the grounds on which the Courts have exercised their
circumstances. As examples of the grounds on which the Courts have exercised their
discretion in refusing to order specific performance, although performance was not
26 SA Cooling Services (Pty) Ltd v Church Council of the Full Gospel Tabernacle [1955] 3 All SA 257 (D) at
260-261; 1955 (3) SA 541 (D); RM Van de Ghiste (Pty)Ltd v Van de Ghiste 1980 (1) SA 250 (C) at 252-253.
27 Haynes v King Williamstown Municipality 1951 (2) SA 371 (A) at 378G-379.
impossible, may be mentioned: ( a) where damages would adequately compensate the
plaintiff; (b) where it would be difficult for the Court to enforce its decree; ( c) where
the thing claimed can readily be bought anywhere; ( d) where specific performance
entails the rendering of services of a personal nature…( e) where it would operate
unreasonably hardly on the defendant, or where the agreement giving rise to the claim
is unreasonable, or where the decree would produce injustice, or would be inequitable
under all the circumstances.’
[82] The mandate was validly concluded, the third respondent possessed
authority to countersign the conditions of sale, and the conditions of sale were
validly executed. The applicant has duly performed its obligations under the
agreement, having successfully bid the sum of R3 100 000 and executed the
conditions of sale. The respondents, by contrast, have failed to perform their
reciprocal obligation to effect transfer of the property.
[83] The Court will ordinarily grant the relief where a valid and binding
agreement exists, unless considerations of equity or impossibility dictate
otherwise. The discretion to refuse specific performance is exercised sparingly,
and only where enforcement would result in undue hardship or injustice. In
Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd ,28 it was held that the onus will rest
on the respondent to allege and prove why the order for specific performance
should not be granted. In this regard the respondent raises principally the
following defences, namely mandate void ab initio , lack of authority, invalid
condition of sale, debt and undue hardship.
[84] The respondents’ opposition rests upon grounds already considered and
rejected: the alleged voidness of the mandate, the purported lack of authority,
the invalidity of the conditions of sale. None of these contentions withstand
scrutiny. Their further reliance on personal hardship, while sympathetic, does
scrutiny. Their further reliance on personal hardship, while sympathetic, does
not constitute a legal defence to enforcement of contractual obligations. The law
28 Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd 1982 (1) SA 398 (AD) at 442.
recognises hardship, but it does not permit parties to escape obligations freely
undertaken merely because performance has become inconvenient or financially
burdensome.
[85] The respondents have not demonstrated any equitable considerations that
would justify the refusal of specific performance. Their reliance upon personal
hardship, dissatisfaction with the purchase price, and the pendency of a
declaratory action cannot outweigh the applicant’s contractual right to transfer.
To deny specific performance in these circumstances would undermine
commercial certainty and the integrity of the auction process.
[86] The applicant, by contrast, has demonstrated a clear contractual
entitlement. The agreement was negotiated, executed, and remains binding. The
applicant has complied with its obligations and is entitled to reciprocal
performance. The respondents’ continued occupation of the property, coupled
with their refusal to perform their reciprocal obligations, constitutes a clear
breach of contract. In the exercise of discretion, I find no merit in the
respondents’ opposition to the applicant’s claim. Their grounds of resistance
have already been considered and rejected, and no equitable considerations have
been advanced that could justify withholding relief. Furthermore, no
exceptional circumstances exist to deny the applicant the remedy of specific
performance. The applicant has established a valid contractual entitlement, and
the respondents are accordingly directed to perform their obligations under the
agreement, including effecting transfer of the property to the applicant in
accordance with the mandate and conditions of sale. Accordingly, the
applicant’s claim for specific performance must succeed.
Costs
[87] What remains is the question of costs. T he general principle is that costs
follow the result. The applicant has succeeded both in resisting the respondents’
counterapplication for a stay of proceedings and in securing the relief of specific
performance. On the other hand, th e respondents’ opposition was not only
unsuccessful but also misconceived, particularly in their reliance on declaratory
proceedings where damages would have been the appropriate remedy. Their
conduct has occasioned unnecessary delay and expense.
[88] While the Court retains a discretion to award costs on a punitive scale,
such an order is reserved for instances of vexatious or frivolous litigation. In the
present matter, although the respondents’ case lacked merit, it cannot be said to
have been pursued in bad faith or with improper motive . As such there is no
basis upon which to depart from the general rule. Accordingly, the respondents
are ordered to pay the costs of the main application. The costs shall be on the
ordinary party-and-party scale including costs of counsel on scale B.
Order
[89] In the result, I make the following order:
(a) The applicant’s claim for specific performance is granted.
(b) The first and second respondents are directed to perform their
obligations under the contract of sale concluded pursuant to the
auction mandate and conditions of sale, including effecting transfer
of the property including to take all necessary steps to effecting
transfer of the property described as Erf 1[...], Atlantis Industrial,
Cape Town, also known as [...] C[...] S[...] Street, Atlantis
Industrial, Cape Town, into the name of the applicant.
(c) In the event that the respondents fail to take such steps within
fourteen (14) days of this order, the Sheriff of the Court and/or a
duly authorised representative of the third respondent is
empowered to take such steps on their behalf to give effect to the
transfer.
(d) The first and second respondents’ counter-application for a stay of
proceedings pending the determination of the declaratory action
under case number 2026/109735 is dismissed.
(e) The first and the second respondents are ordered to pay the costs of
the application, jointly and severally, one paying the other
absolved, and such cost to include counsels’ costs including costs
of counsel on scale B.
_________________________________
S YAKE
ACTING JUDGE OF THE HIGH COURT
Appearances
For the Applicant: Mr Steyn
Instructed by: Heerschop Pienaar Inc. Attorneys
C/O Heerschop Pienaar Inc. Attorneys
(Cape Town)
For the Respondents: Ms A. Thiart
Instructed by: Dunster Attorneys Inc.
For Third Respondent: Mr Smith
Instructed by: Wright Attorneys Inc.
C/O Kruger Incorporated