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[2014] ZAWCHC 85
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Sait v Nqonji N.O and Others (19302/2013) [2014] ZAWCHC 85 (14 May 2014)
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 19302/2013
DATE:
14 MAY 2014
In
the matter between:
MOGAMAT
ADIEL
SAIT
................................................................
Applicant
And
LINDI
NQONJI N.O.
.........................................................
First Respondent
(In
her capacity as executor of the joint estate
of
herself and the late Stanley Ntsikelelo Nqonji)
LINDI
NQONJI
...............................................................
Second
Respondent
THE
MASTER OF THE HIGH COURT
.............................
Third
Respondent
THE
REGISTRAR OF DEEDS
.........................................
Fourth
Respondent
PIERRE
GRANT CHRISTIAN
............................................
Fifth
Respondent
STANDARD
BANK OF SA LIMITED
................................
Sixth
Respondent
JUDGMENT
DELIVERED ON 14 MAY 2014
BOQWANA,
J
Introduction
[1]
This
is an extended return day of a rule nisi issued by this Court, per
Cloete J, on 25 November 2013 for an order:
1.1
that
the deed of sale concluded on 16 July 2012 between the applicant and
the first respondent be rectified by amending the description
of the
seller on the first page thereof to refer to the first respondent by
adding the words: ‘
in
her capacity as executrix of the joint estate of herself and the late
Stanley Ntsikelelo Nqonji
’
after the surname ‘Nqonji’;
1.2
that
the first and second respondents be ordered to effect transfer of the
property to the applicant;
1.3
that
the first and second respondents be ordered to sign all the necessary
documents to comply with the order in 1.2 above within
7 (seven) days
from the date upon which this order comes to their attention;
1.4
that
should the first and second respondents fail to comply with this
order that the Sheriff of this Court be authorised to sign
all the
required documents on their behalf in order to give effect to this
order;
1.5
that
the first and second respondents and/or such further parties opposing
the application, be ordered to pay the costs thereof.
[2]
An
interdict prohibiting the first and second respondents from giving
transfer to any person or entity of immovable property known
as: Erf
5763 Goodwood, in the City Cape Town, Cape Division, Province of the
Western Cape, In Extent: 495 square metres, situated
at 7… M….
Street, G……., Western Cape (‘the property’),
pending the adjudication of this
application, was granted by Cloete J
on 25 November 2013.
Factual
Background
[3]
This
case is about a deed of sale which was concluded on 16 July 2012. The
applicant alleges that he concluded this deed of sale
for the sale of
the property with the first respondent in her capacity as executrix
of the deceased joint estate and not in her
personal capacity as the
first and second respondents allege. The first and second respondents
are one and the same person. The
property in question belongs to the
joint estate, having been registered in the names of the Stanley
Ntsikelelo Nqonji (‘the
deceased’), who passed away on 21
June 2007, and his wife the second respondent. The second respondent
was appointed as executrix
of the joint estate in terms of the
deceased will. She is cited in the papers as first and second
respondent, i.e. both in
her representative capacity as executrix of
the deceased joint estate and in her personal capacity.
I
will at times, where appropriate, refer to the first and second
respondent as Nqonji.
[4]
The
application is opposed by the first, second and fifth respondents
(‘respondents’). The fifth respondent opposes
the
application on the basis that he concluded a ‘valid’
written deed of sale with the first respondent in respect
of the
property on 18 September 2013.
[5]
A
mortgage bond was registered over the property in favour of the sixth
respondent. During 2011, the sixth respondent obtained judgment
against the first and second respondents to enforce a debt owed by
the deceased joint estate. Pursuant to the judgment, a
sale in
execution of the property was scheduled for September 2012. The sixth
respondent agreed not to go ahead with the sale in
execution of the
property but to allow the first respondent to attempt to sell the
property privately
first
.
The
property was then placed on the market by the first respondent. It is
the events that follow, which I discuss below, that culminated
in
this application.
Applicant’s
case
[6]
The
applicant alleges that: On 16 July 2012 he concluded a deed of
sale with the first respondent following placement of the
property on
the market by an estate agent, Maria Van Eck (‘Maria’) of
Eckland Properties on behalf of the first respondent.
This deed of
sale was then presented to the sixth respondent who accepted its
terms and cancelled the scheduled execution. Since
then the first
respondent has failed to finalise the administration of the estate
and has failed to deliver transfer of the property
to the applicant.
The applicant and his family moved into the property in November 2012
and had been residing there since paying
occupational rent as agreed
between him and the first respondent.
The
occupational rent agreed to was initially an amount of R4500 but was
increased to R5500 as the first respondent was not satisfied
with the
R4500. This led to the signing of the addendum, which the applicant
attached to his replying affidavit, in response to
the disputed
occupational rent clause of the deed of sale.
[7]
The
sixth respondent became impatient and arranged a further sale in
execution that was scheduled for 23 September 2013. The first
or
second respondent attempted to sell the property to the fifth
respondent for reasons unknown to the applicant. The applicant
became
aware of this sale after he received a letter from the fifth
respondent and an entity called Bravo Space 181 CC informing
the
applicant to vacate the property as they were now the owners of the
property.
[8]
Upon
further investigations, ESI Attorneys, who were appointed as
transferring attorneys in the deed of sale concluded on 16 July
2012,
furnished the applicant with a copy of a notice headed ‘letter
of cancellation’ signed by Nqonji on or about
21 September 2013
in which she notifies William Inglis Attorneys (attorneys for the
sixth respondent), inter alia, as follows:
‘
This
letter serves to confirm that I wish to continue with the sale of my
property to PIERRE GRANT CHRISTIAN [‘the fifth respondent].
The
Deed of Sale was signed by me on the 18
th
September 2013.
I
herewith cancel the mandate of all other offers signed by myself
prior to the abovementioned sale...’
(Own
insertion)
[9]
The
applicant contends that he is not aware of any valid reason for the
cancellation of the deed of sale. He has been patiently
waiting for
the transfer of the property which was delayed due to the
administration of the deceased joint estate and the first
respondent’s lack of urgency. He further alleges that he did
not receive any letter of cancellation calling upon him to remedy
any
possible breach of the deed of sale followed by a notice of the
cancellation of the deed of sale. He initially based his contention
on section 19 of
Alienation of Land Act No. 68 of 1981
. Mr Walters,
who appeared for the applicant, however, conceded in his
supplementary note that the
Alienation of Land Act was
not applicable
in this instance. He submitted however that the submission on
cancellation of the deed of sale was based on common
law. The
applicant contends that the first respondent is not entitled to
cancel the deed of sale and will herself be in breach
should transfer
be given to the fifth respondent.
[10]
The
applicant further alleges that he has complied with the terms of the
deed of sale and intends continuing to fulfil his obligations
as
stipulated therein. He states that he once again tenders the payment
of the purchase price against transfer of the property.
In
his replying affidavit he attached proof that he obtained approval of
the bond from the sixth respondent and also paid a deposit
of R65 000
in compliance with the deed of sale.
[11]
The
purchase price for the sale of the property in terms of the deed of
sale with the applicant is R630 000. According to the
applicant,
the first respondent will receive R90 000 more than the amount
required to be paid in the deed of sale entered
into with the fifth
respondent
should
the deed of sale he concluded with her be honoured.
[12]
He
contends that he brought the application on an urgent basis in order
to prevent transfer of the property to the fifth respondent
and to
rectify the deed of sale to specify that the deed of sale was signed
by the first respondent in her capacity as executrix.
The applicant
claims that these words were omitted in error by the parties, upon
the signing of the agreement.
First
and Second Respondents’ case
[13]
The
crux of the Nqonji’s defence is that she signed an offer to
purchase the property in her personal capacity and not in
her
capacity as executrix. She further alleges that even if the agreement
was valid, which she denies, the applicant failed to
comply with the
suspensive condition in the agreement resulting in the lapse of the
contract. She further states that in any event
the applicant failed
to comply with the terms of the deed of sale in that he failed pay
all the occupational rent and by doing
so he repudiated the agreement
and it was accordingly cancelled.
[14]
To
substantiate these assertions, Nqonji’s case is as follows:
Following her appointment as executrix of the deceased joint
estate
and due to her being a layperson she instructed Nolita Kose
(‘Nolita’) of Mfazi Kose Attorneys as administrator
of
the deceased estate and to assist her with the administration
process, and other relevant processes.
Nolita’s
confirmatory affidavit is attached to the answering affidavit.
[15]
She
states that Nolita informed her that due to the fact that the estate
had quite a substantial shortfall and that it was insolvent,
the
Liquidation and Distribution account in respect of the joint estate
could not be lodged unless the shortfall was accommodated
for. The
most substantial realisable asset in the joint estate was the
immovable property, which forms the substance of this
litigation.
She
and Nolita then approached the sixth respondent to halt the sale in
execution, and allow them to attempt to sell the property
privately,
to which the sixth respondent agreed.
[16]
During
early July 2012 Maria approached her with a potential buyer and on or
about 16 July 2012 Maria provided her with a written
offer to
purchase which was signed by the applicant on 10 July 2012. Nqonji
informed Maria that the property belonged to the joint
estate and
that although she was appointed as executrix, Nolita was appointed as
administrator and she did not want to enter into
an agreement without
speaking to Nolita first. She made it clear to Maria that she could
not sign any deed of sale without first
discussing it with Nolita.
Maria referred her to clause 17 of the offer to purchase which
provided that the offer will expire on
that same date of 16 July
2012, and in order to prevent expiration of same, she could merely
sign in her personal capacity and
after discussing with Nolita she
could then sign in her capacity as executrix. She then signed as
advised by Maria.
[17]
Shortly,
after this she had a discussion with Nolita who informed her that the
joint estate was insolvent and that it would be impossible
to lodge
the Liquidation and Distribution account, if no specific provision
was made for the payment of the shortfall. Nolita
contacted EIS
Attorneys who were to deal with the transfer of the property advising
them to draft a deed of sale which made provision
for the shortfall
and she further confirmed to EIS that the first respondent had signed
the offer of purchase in her personal capacity
and not in her
capacity as executrix. Nqonji states that she never received
the said deed of sale from either Maria or EIS
but instead Maria
constantly harassed her regarding finalisation of the estate and
particularly the occupation of the property
by the applicant. On
every occasion she repeated what Nolita had told her and asked Maria
to contact Nolita directly and she believes
Maria did.
[18]
Maria
insisted further that the alleged deed of sale made provision that
the applicant could take occupation of the property on
01 November
2012. Nqonji told Maria that as far as she could remember the offer
to purchase was signed on 16 July 2012 and it provided
that the
applicant would only take occupation of the property upon transfer.
She was however not too concerned at that stage as
she believed that
no valid deed of sale was concluded as yet. She also advised Maria
that if Maria was of the view that a valid
deed of sale was concluded
she had not received any payment of the purchase price nor any
confirmation that the applicant’s
bond was approved. Nolita
also never received any confirmation in this regard.
Therefore,
she was of the view that the deed of sale in any event had lapsed.
Nqonji
alleges that she has now discovered that the date of occupation was
altered fraudulently and without her knowledge and consent.
She
claims that she did not initial next to the changes made, which is
indicative of the fact that she did not agree to the new
occupation
date of 01 November 2012.
[19]
During
early November 2012, and in the late evening, Nqonji heard a knock on
the door and to her shock a gentlemen who introduced
himself as Mr
Sait (‘the applicant’) informed her that he was moving
into the property. Due to the fact that her three
children lived with
her and her two daughters were in the middle of matric exams she
immediately relocated to a friend’s
house in Parow that
evening. She contacted Maria the next day who apologised but
confirmed that the deed of sale was valid, that
the sixth respondent
had approved same and occupation was from 01 November 2012. Maria
told her that the applicant would transfer
an amount of R5500
directly into the first respondent’s account on a monthly
basis. She however received short payment in
the amount of R3250.00
from the applicant in November 2012 and thereafter only received
payments of the above amount during December
2012 and January 2013
respectively. She never again received payments from applicant in
respect of occupational rent or anything
else.
[20]
She
states that due to the fact that she was financially unable to take
any legal steps such as spoliation or eviction proceedings,
against
the applicant, she decided that it would be in the best interest of
the joint estate that she rather attempt to finalise
the
administration of the joint estate, by giving applicant an
opportunity to pay or provide security for payment of the purchase
price to sixth respondent as was required by the offer to purchase.
In August 2013 she however received notice from the sixth respondent
that a sale in execution of property was scheduled for 23 September
2013. She then realised that it was obvious that no security
for
payment of the purchase price had been provided. In light of the fact
that she and Nolita regarded the sale of the property
as being in the
best interest of the joint estate, they did not object to the sale in
execution taking place. Furthermore a substantial
amount of time had
lapsed. The applicant had dragged his feet by not obtaining security
for
the
purchase price
despite
the fact that she gave him an opportunity even though he was not even
rightfully entitled to the transfer of property. According
to her the
administration of the estate needed to be finalised.
[21]
She
asserts further that, before the sale in execution took place, she
was contacted by the estate agent, Joe Cunningham (‘Joe’),
of PAJ Investments, who informed her that he had a potential buyer
(‘the fifth respondent’) who had offered the required
purchase price and who was willing to settle the property’s
rates and taxes account in the amount of R84 704.16, which
was
still outstanding. Nqonji informed Nolita and they both agreed that
it was in the best interest of the estate to accept the
offer. She
signed the deed of sale in her representative capacity as executrix
of the joint estate although her capacity is not
reflected in the
document. She decided to advise the sixth respondent that the
applicant’s offer was refused and she
wanted to proceed by
selling the property to the fifth respondent. She believes that it
would be in the best interest of the joint
estate that the deed of
sale with the fifth respondent be enforced and transfer be awarded to
him.
Evaluation
[22]
The
issue to be determined by the Court is whether the deed of sale
concluded on 16 July 2012 is valid and binding on the first
respondent thereby entitling the applicant to the relief he seeks in
the notice of motion.
Disputes
of fact
[23]
This
case consists of a number of disputes of fact. The legal position is
clear on how the Court should approach the matter when
material facts
are in dispute. The general rule is that a final order will only be
granted on notice of motion if the facts as
stated by the respondent
together with the facts alleged by the applicant that are admitted by
the respondent justify such an order.
[1]
[24]
There
are essentially two material disputes of fact raised by Nqonji. The
first one relates to the capacity in which Nqonji signed
the deed of
sale of 16 July 2012 and the second one relates to applicant’s
compliance with the deed of sale.
[25]
It
was submitted by Mr Walters on behalf of the applicant that the
disputes of fact raised by the respondents are not bona fide,
are
extremely far-fetched and are clearly untenable, which would justify
the Court to merely reject them on the papers. Mr Walters
however
submitted in the alternative that if the Court was unable to decide
the matter on the papers, it should refer the question
of the
capacity and any other issue relevant to the Court’s decision
to oral evidence.
[26]
Mr
Bosman who argued for the respondents was vehemently opposed to this
approach. His view was that the applicant ought to make
his
application for the matter to be referred to oral evidence at the
outset and not after argument. In this regard he referred
to the
decision of
Kalil
v Decotex (Pty) Ltd and Another
[2]
.
It
should however be noted that this is not an inflexible rule as the
Court noted in the same decision.
[3]
[27]
Mr
Bosman also referred to the decision of
Standard
Bank of SA Ltd v Neugarten and Others
[4]
which dealt with what the Court should determine in deciding whether
or not a matter should be referred to oral evidence
or to trial. The
relevant passage in that decision reads as follows:
‘
If
the acceptability or cogency of evidence stands to be influenced by
the manner in which the evidence is given or,
more
generally, by what may eventuate if the evidence is tested by
cross-examination, the truth cannot be satisfactorily established
on
a written exposition of the evidence. Oral evidence should be heard.
The way for the hearing of
such
evidence must be paved by a summons - and subsequent pleadings -
which circumscribe the issues. But it unfortunately does happen
that
a dispute requiring such an evaluation sometimes arises in
proceedings which are unsuitable for such a dispute. The first
alternative is to dismiss the application. The predictable
abortiveness of the litigation because of the inability of the Court
to decide the factual dispute on the papers is usually visited on an
applicant who should have foreseen a dispute irresoluble on
the
papers. Reprehensibility may, of course, be absent because of
considerations which justify the use of application procedure
despite
a foreseeable dispute. In the absence of
reprehensibility, the second alternative is generally the appropriate
one. The Court then brings about what the dispute, perhaps more
readily realised on hindsight, needed in the first place. It orders
that the litigation be undertaken by action procedure. But sometimes
the factual dispute is within such a narrow compass, and can
be so
relatively expeditiously disposed of, that a complete trial procedure
is disproportionately costly and cumbersome. When the
true facts are
'capable of easy ascertainment', the case merits different treatment,
viz the authorising or the requiring of verbal
evidence. The Court's
function, if there is a factual dispute, is to 'select the most
suitable method of employing viva voce evidence
for the determination
of the dispute'. Room Hire Co (Pty) Ltd v Jeppe Street Mansions
(Pty) Ltd
1949
(3) SA 1155 (T)
at
1162, 1164 and, with reference to discovery, 1163.Cf the wording of
Rule of Court 6(5)(g).
But
the hearing of oral evidence remains generally appropriate only to
cases where it is found 'convenient', where the issues are
'clearly
defined', the dispute is 'comparatively simple' and a 'speedy
determination' of the dispute is 'desirable'.
See the Room Hire case supra at 1164, 1165; cf Atlas Organic
Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd
1978
(4) SA 696
(T)
;
Less and Another v Bornstein and Another
1948
(4) SA 333 (C)
at
337; Conradie v Kleingeld
1950
(2) SA 594
(O)
.’
(Own
emphasis)
[28]
I
thought long and hard about whether or not to refer this matter to
oral evidence. As a general rule, decisions of fact cannot
properly
be founded on a consideration of the probabilities unless the Court
is satisfied that there is no real and genuine dispute
on the facts
in question, or that the one party’s allegations are so
far-fetched or so clearly untenable or so palpably implausible
as to
warrant their rejection merely on the papers, or that
viva
voce
evidence
would not disturb the balance of probabilities appearing from the
affidavits.
[5]
[29]
My
view is that this matter is capable of being resolved on the papers.
I am not convinced that sending it to oral evidence would
be of any
value if the probabilities can be ascertained from the affidavits
that have been filed. I take note of the warning that
a Court should
not lightly settle a factual dispute solely by weighing up
probabilities emerging from the papers, without giving
any due
consideration to the advantages of oral evidence.
[6]
I however wish to refer to the decision of this Court:
South
Peninsula Municipality v Evans and Others
[7]
,
where
Van Heerden J said the following:
‘
..On
the other hand, South African Courts have recognised that, in motion
proceedings, disputes of fact cannot necessarily be accepted
at face
value and that, in each case, the Court should closely scrutinise the
alleged issues of fact in order to decide whether
there is indeed a
dispute of fact that cannot satisfactorily be determined without the
aid of oral evidence (see, for example the
Nampesca case at 893A –
C and the authorities cited there). Thus, while the Court should be
circumspect in its approach,
‘
(i)f,
on the papers before the Court, the probabilities overwhelmingly
favour a specific factual finding, the Court should take
a robust
approach and make that finding
’
[8]
(Own
emphasis)
[30]
It
is also useful to refer to the decision of
Truth
Verification Testing Centre v PSE Truth Detection CC
[9]
.
In
that case Eloff AJ held the following:
‘
I
am mindful of the fact that a court should be loath to determine
disputed issues on affidavit on the basis of probabilities as
they
present themselves from an analysis of the respective conflicting
versions of the parties. (Da Mata v Otto NO
1972 (3) SA 858
(A) at
865
in
fin
.)
I am also mindful of the fact that the so-called ‘robust,
common-sense, approach’ which was adopted in cases such
Soffiantini v Mould
1956 (4) SA 150
(E) in relation to the resolution
of disputed issues on paper usually relates to a situation where a
respondent contents himself
with bald and hollow denials of factual
matter confronting him.
There
is, however, no reason in logic why it should not be applied in
assessing a detailed version which is wholly fanciful and
untenable.’
(Own
emphasis)
[31]
From
the above decisions it is clear that the Court is permitted to
scrutinise the detailed version presented on affidavit in order
to
establish if indeed there is a real and genuine dispute of fact and
whether the version offered by the respondent is wholly
fanciful and
untenable.
[32]
It
makes no sense in my view for the Court to refer the matter to oral
evidence when it is apparent that
viva
voce
evidence is likely not to disturb what appeared from the papers. It
must be stated further that none of the parties in this present
matter specifically asked the Court to refer the matter to oral
evidence, except for Mr Walters who submitted in the alternative
that
the Court should, if it finds that it cannot decide the matter on the
papers, refer the narrow aspect of capacity to oral
evidence. Apart
from that both parties, arguing from different perspectives, were
confident that this matter could be decided on
the papers.
Was
a valid deed of sale concluded?
[33]
The
first issue I need to determine is whether a valid deed of sale was
concluded. It is common cause that the property in question
belonged
to the joint estate
.
Nqonji in her personal capacity had no right to the property before
the finalisation of the administration of the joint estate
and by law
could not be party to the deed of sale in her personal capacity.
There
are
however anomalies in Nqonji’s version. She admits that she
signed the deed of sale but she claims that she was told by
Maria
that she could sign in her personal capacity and later sign as an
executrix after discussing the matter with Nolita.
[34]
The
first anomaly is around the issue of the shortfall. The issue of the
shortfall not being provided for in the deed of sale was
raised as
the main reason for Nqonji not to sign as executrix after conferring
with Nolita.
[35]
I
find this to be quite strange in that the deed of sale concluded with
the fifth respondent made no provision for the shortfall
either. In
fact the purchase price in the deed of sale signed on 16 July 2012
was R630 000.00 which was R90 000.00 more
than the amount
offered by the fifth respondent. The fifth respondent offered to pay
R540 000.00 as a purchase price. It
appears that there
were outstanding property rates and taxes amounting to R84 704.16
which according to the first respondent
the fifth respondent had
offered to pay. That was however not provided for in the deed of sale
between them. Furthermore, clause
21 of the deed of sale between the
first respondent and fifth respondent specifically states that: ‘
all
rates and taxes, water and service charges including all levies and
imposts if any, up to the date of registration of the sale
is
included
in the abovementioned purchase price.
’
(Own
emphasis)
[36]
It
accordingly does not make sense that Nolita and the first respondent
would find the fifth respondent’s offer to be in the
best
interest of the joint estate and agree that the first respondent
could sign the deed of sale with fifth respondent in her
representative capacity as executrix when it did not provide for the
shortfall, while at the same time claiming that the deed of
sale
concluded with the applicant could not be signed
because
of the absence of the provision of the shortfall. In any event even
if the fifth respondent had promised to pay R84 704.16
for
outstanding rates and taxes, the amount of R90 000 which is the
difference between the purchase price of the two deeds
of sale was
more than the R84 704.16 offered by the fifth respondent. The
first respondent’s version on the issue of
the shortfall is
therefore unconvincing, far-fetched and untenable. It must therefore
be rejected.
[37]
Even
if it were to be accepted that the first respondent could not have
signed the deed of sale in her capacity as executrix without
Nolita’s
approval, she in her own papers states that she decided to give the
applicant an opportunity to pay or provide for
security for payment
of the purchase price to sixth respondent. This in my view indicates
that she decided to abide by the provisions
of the deed of sale
contrary to the assertion that the agreement was void.
[38]
She
further allowed the applicant, whom she claims occupied her property
unlawfully, to occupy the property from November 2012 to
date without
taking any action to evict him. I accept that she may not have
had funds to litigate, it is however improbable
that Nqonji would
without resistance leave her property with her children late in
the evening and allow a total stranger
whom she had never met to move
into her property if she did not believe that he had the right to
occupy the property. She also
accepted some rental amounts that were
paid, albeit some months were short paid or not paid at all according
to her. Her actions
clearly condoned the situation regarding
occupation.
[39]
In
addition to this she signed above the words ‘owner’
appearing in the deed of sale knowing full well that she could
not
sign as owner in her personal capacity. Nqonji’s version
clearly bears out that she knew before signing the deed of sale
that
she could not sign the document in her personal capacity.
[40]
I
am persuaded by the applicant’s alternative argument that
Nqonji had represented to the applicant that she was acting
in
her representative capacity on behalf of the owner (thereby in her
capacity as executrix) when she offered property for sale
and signed
the deed of sale. The applicant acted on that as he obtained bond
approval, paid deposit, moved in the property and
incurred expenses
to clean and restore it. Nqonji’s conduct could reasonably have
been expected to mislead the applicant
into believing that she had
the right to sign the deed of sale and did so in her required
representative capacity. To this end,
she did not act as a reasonable
person would have done and was accordingly negligent.
[10]
I am satisfied that the requirements of
estoppel
have
been met and Nqonji must therefore be
estopped
from
claiming that she did not sign the deed of sale in her capacity as
executrix.
[11]
[41]
The
respondents did not find it necessary to argue the issue of
estoppel
in detail as they believed that the applicant had failed to fulfil
his obligations in terms of the deed of sale.
[42]
Another
interesting point is that the deed of sale concluded with the fifth
respondent makes no mention of the first respondent’s
representative capacity. This in my view makes the version that the
second respondent signed the deed of sale with the applicant
in her
personal capacity highly improbable.
[43]
The
version that the first respondent signed in her personal capacity as
opposed to her capacity as executrix is untenable and is
therefore
rejected. I therefore find that the deed of sale concluded on 16 July
2012 was valid.
Compliance
with the deed of sale
[44]
The
second defence raised by Nqonji is that the applicant did not comply
with the suspensive condition requiring approval of the
bond by a
financial institution by no later than 07 August 2012. This condition
was deemed to be fulfilled once the bank or financial
institution had
issued a written quotation. In his founding papers the applicant
alleges that he complied with the terms of the
deed of sale and at no
point did the first respondent ever point out that he was in breach
of the terms of the deed of sale. In
fact he attaches a grant
quotation from the sixth respondent in his replying affidavit dated
02 August 2012,showing a loan amount
of R565 000.00 and a
purchase price of R630 000, in respect of the property in
question, as proof of compliance with
clause 8 of the deed of sale.
There is no reason for the Court not to accept this evidence as it is
relevant. This evidence is
in my view not new. It is in reply to an
assertion made by the respondents in their answering affidavit that
the applicant failed
to comply with the suspensive condition and
therefore the first respondent construed the deed of sale as having
expired due to
non-compliance by the applicant.
[45]
If
the respondents had an issue with these allegations made in reply
they could have asked for leave to deal with this issue by
filing
further affidavits, but they failed to do so. It further did not make
sense that after the first respondent realised that
the deed of sale
had lapsed in August 2012 she would still allow the applicant to move
in and occupy her property on 01 November
2012 after expiry of the
deed of sale.
[46]
The
third issue raised is non-payment of occupational rent. On this issue
Nqonji alleges that the applicant failed to pay the amount
of
R5500.00 per month as required in clause 6 of the deed of sale. She
states that she received reduced amounts in November 2012
and another
two amounts in December 2012 and January 2013 respectively. In reply
to this the applicant states that he found defects
in the house and
was told by Maria that he could attend to those and deduct it from
the rental hence the reduced amount in November
2012. As of April
2013 he paid the rental amount to EIS every month as he was told to
do so
via
email.
The
position is not clear with regard to March 2013 rental and other
short payments for May, September and October 2013.
[47]
The
respondents’ submission is that the applicant had a clear
intention not to comply with the material terms of the deed
of sale
and therefore repudiated same through his conduct. He therefore is
not entitled to the relief he seeks of transfer of property
to him.
[48]
The
applicant’s submission however is that the first respondent was
not entitled to cancel the deed of sale as there was no
breach from
his side. Secondly even if there was a breach, which he denies, he
never received a letter requiring him to rectify
the breach, followed
by a letter of cancellation.
[49]
In
the Supreme Court of Appeal decision of
Datacolor
International (Pty) Ltd v
Intamarket
(Pty)
Ltd
[12]
the
Court held that:
‘
[16] “Where one party to a
contract, without lawful grounds, indicates to the other party in
words or
by conduct a deliberate and
unequivocal intention no longer to be bound by the contract
,
he is said to “repudiate” the contract ... Where that
happens, the other party to the contract may elect to accept
the
repudiation and rescind the contract. If he does so,
the
contract comes to an end upon communication of his acceptance of
repudiation and rescission to the party who has repudiated
...
.......
The
emphasis is not on the repudiating party’s state of mind, on
what he subjectively intended, but on what someone in the
position of
the innocent party would think he intended to do;
repudiation
is accordingly not a matter of intention, it is a matter of
perception. The perception is that of a reasonable
person
placed in the position of the aggrieved party. The test is
whether such a notional reasonable person would conclude
that proper
performance (in accordance with a true interpretation of the
agreement) will not be forthcoming. The inferred
intention
accordingly serves as the criterion for determining the nature of the
threatened actual breach.
’
(Own
emphasis)
[50]
Assessing
the conduct of the applicant and all the background material in this
case, I am not convinced that an inference can be
drawn that there
was a clear cut and an unequivocal intention on the part of the
applicant to no longer be bound by the terms of
the deed of sale. The
last payment made to EIS by the applicant was an amount of R5500 on
17 November 2013. He had been making
payments and attached proof of
payments to his replying affidavit. He states that these are proofs
of payment that he could get
hold of.
It
is clear that some months are missing.
Furthermore,
payment was made to EIS Attorneys’ trust account and not
directly to the first respondent. I am not satisfied
that the
applicant’s conduct amounted to unequivocal intention not to
comply such that a reasonable person would conclude
that proper
performance was not forthcoming. In any case, I am also not
convinced that occupational rent is a material provision
of a deed of
sale, in the context of this case, such that non-compliance with it
would amount to repudiation of the whole contract.
The character and
the essence of this contract relates to the sale of property. In
Schlinkmann
v Van der Walt
[13]
the Court held,
inter
alia
,
that: ‘
A
dispute as to one or several minor provisions in an elaborate
contract or a refusal to act upon what is subsequently held to be
the
proper interpretation of such provisions should not as a rule be
deemed to amount to repudiation….In every case the
question of
repudiation must depend on the character of the contract, the number
and weight of wrongful acts or assertions, the
intention indicated by
such acts or words, the deliberation or otherwise with which they are
committed or uttered, and the general
circumstances of the case….To
this I would add only that the onus of proving that the one party has
repudiated the contract
is on the other party who asserts it.’
[51]
It
appears from the papers that Nqonji cancelled the contract. It
is not clear if she elected to do so based on a perceived
repudiation
occasioned by non-payment of occupational rent by the applicant.
It seems to me cancellation as alleged in the
respondents’
papers was triggered by the applicant’s slow pace in obtaining
the necessary security for the purchase
price and by non-provision of
a shortfall in the deed of sale.
[52]
I
say so because Nqonji, under the heading cancellation of deed of
sale, alleges that she decided to give the applicant an opportunity
to pay or provide security for payment of the purchase price as was
required by the offer of purchase. However when she received
notice
from sixth respondent during August 2013 that the sale of execution
of the property was scheduled for 23 September 2013,
she then
realised that obviously no security for payment of the purchase price
had been provided. According to her a substantial
amount of time had
passed and the applicant had dragged his feet despite been given an
opportunity, even though he was not rightfully
entitled to the
property. The actions to cancel the deed of sale were not as a result
of short-payment of occupational rent but
applicant’s failure
to secure payment of the purchase price as appears in the answering
affidavit. I have already dealt with
the applicant’s reply on
this issue.
[53]
In
reality it seems to me that the real reason for the delay in transfer
was the non-finalisation of the administration of the joint
estate
owing to the shortfall as opposed to the applicant’s failure to
obtain security for the purchase price. The first
respondent’s
version leading to cancellation of the deed of sale is far from
convincing and is inconsistent with a number
of allegations that I
have already dealt with.
[54]
Even
if it were to be accepted that the applicant did repudiate the
contract, which is not the case in my view, the contract comes
to an
end upon communication of the innocent party’s acceptance of
repudiation and rescission to the party who has repudiated
as stated
in the
Datacolor
[14]
case.
[55]
It
is common cause that the first respondent did not communicate the
cancellation of the deed of sale directly to the applicant,
but the
applicant became aware when he was investigating claims by Bravo
Space that they were now new owners of the property, of
a letter
directed to the sixth respondent’s attorneys confirming her
wishes to sell the property to the fifth respondent
and cancelling
mandate on all other offers.
[56]
The
Court in
Datacolor
International (Pty) Ltd went on to state the following:
‘
Since
the election to cancel,
provided
that it is unambiguous
,
need not be explicit but may be implicit, and since the cause for
cancellation need not be correctly identified and stated, it
follows
that the actual communication of the decision to cancel, once made
and manifested,
may
be conveyed to the guilty party by a third party
.
In the instant case the defendant, by circulating the agency
announcement, made its attitude plain for all the world to
see.’
[15]
(Own
emphasis)
[57]
The
Datacolor
decision
makes it clear that communication does not need to have gone directly
to the applicant, but cancellation may be conveyed
by or
via
a third party, which seems to be what happened in this case. My
concern though in this case is that the applicant stumbled on this
letter of cancellation in that had it not been for his
investigations, the applicant would not have known about the notice.
It
could therefore not be concluded in the circumstances that Nqonji
communicated her intentions to cancel 'for all the world to see’,
including the applicant, as it were.
[58]
The
problem in this present matter also is that the notice addressed to
the sixth respondent’s attorneys is dated 21 September
2013.
There were payments made for occupational rent by the applicant for
the periods of September, October and November 2013.
Based on this,
the applicant could not have been said to have conveyed repudiation
to Nqonji as these actions could not reasonably
be held to be
suggestive of a person who no longer wanted to be bound by the terms
of the deed of sale.
[59]
I
now deal with the issue of urgency which the respondents took issue
with. Mr Bosman submitted that there was no reason for the
applicant
to set the matter down on the semi-urgent roll. It was postponed to
the semi-urgent roll on condition that the applicant
obtained an
undertaking from the sixth respondent not to proceed with its sale in
execution which the applicant did. Whilst the
matter is no longer as
urgent in the sense that the sixth respondent has agreed to stay
execution of the property and an order
was granted on the interim
basis by Cloete J interdicting the Nqonji from effecting transfer of
property to any person or entity
pending adjudication of this
application, the matter did warrant to be heard on the semi-urgent
basis, in my view.
[60]
Furthermore,
it is in the interest of all the parties that this matter be
finalised as soon as possible. From the reading of the
papers, it
seems that all parties are anxious in getting the affairs surrounding
this property finalised as they have been ongoing
for many years.
The sixth respondent for instance had agreed to stay execution three
times. The conclusion of the estate
administration process and
necessary transfers should be finalised. In any case the matter was
fully argued before me on the semi-urgent
roll and I find no basis to
dismiss the application purely on the applicant’s failure to
set it down in fourth division.
[61]
In
conclusion, I am of the view that the applicant has made out a case
that he is entitled to the final relief he seeks in this
matter.
[62]
In
the result I make the following order:
1.
The
Rule Nisi granted on 25 November 2013 is confirmed.
N
P BOQWANA
Judge
of the High Court
APPEARANCES
FOR
THE APPLICANT: Advocate A Walters
INSTRUCTED
BY: Africa & Associates, Woodstock
FOR
THE FIRST, SECOND
AND
FIFTH RESPONDENTS: Advocate C
J Bosman
INSTRUCTED
BY: Laubscher & Hattingh Inc. C/O Smith Buchanan Boyes, Cape
Town
DATE
OF HEARING: 19 March 2014
[1]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
634
[2]
1988
(1) SA 943
(A) at 981 D –F
[3]
See Kalil v Decotex (Pty) Ltd supra at 981E.
[4]
1987
(3) 695 (W) at 698I – 699D.
[5]
Erasmus
Superior Courts Practice (Electronic Edition) at RS 41, 2013 Rule –
B1 – p50.
[6]
See Sewmungal and Another NNO v Regent
Cinema
1977 (1) SA 814
(N) at 820 E –F.
[7]
2001
(1) SA 271 (C).
[8]
South Peninsula Municipality v Evans supra at
283F-H.; See alsoDhladhla v Erasmus
1999 (1) SA 1065
(LCC) at 1072.
[9]
1998
(2) SA 689
(W) at 698
[10]
See
Aris
Enterprises ( Finance) v Protea Assurance
1981(
3) SA 274
(AD)
at 291D-E;
Concor
Holdings (Pty) Ltd t/a Concor Technicrete v Potgieter
[2004] 4 All
SA 589
(SCA) at paragraphs 7, 11 and 12 and Africast (Pty) Ltd v
Pangbourne Properties Ltd
[2013] 2 All SA 574
GSJ at paragraph 44.
[11]
See
Pangbourne
Properties Ltd v Basinview Properties (Pty) Ltd
[2011]
JL 27157 ( SCA) ZASCA 20 ( 17/03/2011))
at
[16] and [17];
and
Rabie
& Sonnekus, The Law of Estoppel in South Africa, Butterworths
(2nd Edition, 2000) at p 63, Para 5.1,
and
(LAWSA,
Vol 9; 2
nd
Ed, ( 2005) Estoppel (Rabie & Daniels): Para 657.)
[12]
2001
(2) SA 284 (SCA); [2001] 1 All SA 581 (A)
[13]
1947
(2) SA 900
(E) at 919, quoting from
Re
Rubel Bronze and Metal Co. and Vos
(1918,
1 K.B. at p. 322) a decision by MCCARDIE, J.
[14]
Datacolor International
(Pty) Ltd v Intermarket (Pty) Ltd supra at paragraph 16
[15]
Datacolor
International (Pty) Ltd v Intermarket (Pty) Ltd supra at paragraph
19