Agu v Krige and Others (20763/2017) [2019] ZAWCHC 46 (28 March 2019)

Agu v Krige and Others (20763/2017) [2019] ZAWCHC 46 (28 March 2019)

The court found that the deed of sale expressly required the applicant to pay the purchase price to the first respondent's nominated conveyancer, who was appointed by the first respondent and acted as his agent for receiving payment. Payment to the conveyancer was therefore equivalent to payment to the seller, and the applicant discharged her contractual obligation by making such payment. The misappropriation of funds by the conveyancer did not affect the applicant's entitlement to transfer, as she had no control over the process after payment and had complied with all contractual requirements. The first respondent was accordingly obliged to effect transfer of the property to the applicant.

Citation
[2019] ZAWCHC 46
Parties
Applicant: Philomena Chichi Agu; Respondent: Gideon Johannes Krige; Respondent: Ronel Swart; Respondent: SA Home Loans (Pty) Ltd; Respondent: Blue Sheild Investments 01 (RF) Limited; Respondent: Registrar of Deeds, Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
28 March 2019
Case Number
20763/2017
Procedural Posture
Urgent Application / First Instance Judgment
Outcome
Application granted. The first respondent is ordered to take all necessary steps to transfer the property to the applicant and to pay costs, excluding those for senior counsel.
Judges
Francis, AJ
Legal Topics
Specific Performance, Agency in Property Transactions, Conveyancer Liability, Payment Discharge, Sectional Title Transfer
Land and Property Civil Procedure Specific Performance Agency in Property Transactions Conveyancer Liability Payment Discharge Sectional Title Transfer

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Parties

Philomena Chichi Agu

Applicant

Gideon Johannes Krige

Respondent

Ronel Swart

Respondent

SA Home Loans (Pty) Ltd

Respondent

Blue Sheild Investments 01 (RF) Limited

Respondent

Registrar of Deeds, Cape Town

Respondent

Procedural Posture

Urgent Application / First Instance Judgment

Legal Issues

  1. 1 Whether payment by the applicant to the first respondent's nominated conveyancer constitutes payment to the first respondent under the deed of sale.
  2. 2 Whether the applicant discharged her contractual obligation to pay the purchase price by paying the conveyancer.
  3. 3 Whether the first respondent is obliged to transfer the property despite the conveyancer's misappropriation of funds.

Ratio Decidendi

The court found that the deed of sale expressly required the applicant to pay the purchase price to the first respondent's nominated conveyancer, who was appointed by the first respondent and acted as his agent for receiving payment. Payment to the conveyancer was therefore equivalent to payment to the seller, and the applicant discharged her contractual obligation by making such payment. The misappropriation of funds by the conveyancer did not affect the applicant's entitlement to transfer, as she had no control over the process after payment and had complied with all contractual requirements. The first respondent was accordingly obliged to effect transfer of the property to the applicant.

Court Disposition

Application granted. The first respondent is ordered to take all necessary steps to transfer the property to the applicant and to pay costs, excluding those for senior counsel.

Orders

  • The first respondent is directed to take all steps necessary to ensure transfer of the property to the applicant, including procuring compliance certificates as required by the sale agreement.
  • The first respondent must pay into the applicant's attorneys' trust account, within 21 days, the amount necessary to discharge the mortgage bond over the property, to be held in trust pending transfer and paid to the fourth respondent upon registration of transfer.