Bekker v Schmidt Bou Ontwikkelings CC and Others (3862/05) [2006] ZAWCHC 37; [2007] 4 All SA 1231 (C); 2007 (1) SA 600 (C) (24 August 2006)

Bekker v Schmidt Bou Ontwikkelings CC and Others (3862/05) [2006] ZAWCHC 37; [2007] 4 All SA 1231 (C); 2007 (1) SA 600 (C) (24 August 2006)

The court found that the first respondent failed to strictly comply with the cancellation clause in the deed of sale. The required notices were not sent to the applicant's domicilium by prepaid registered post, did not specify the nature of the breach, and did not allow the seven-day period for remedy as stipulated in the contract. Consequently, the purported cancellation was invalid. Furthermore, the court held that section 10 of the Housing Consumers Protection Measures Act does not render the deed of sale void solely because the home builder failed to enrol with the National Home Builders Registration Council. Ignorance of the statutory requirements by the home builder does not justify...

Citation
[2006] ZAWCHC 37
Parties
Applicant: Linda Ann Bekker; Respondent: Schmidt Bou Ontwikkelings CC; Respondent: André Kleynhans; Respondent: The Registrar of Deeds, Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
24 August 2006
Case Number
3862/05
Procedural Posture
Civil Application / Judgment After Hearing on Merits
Outcome
Application granted. The deed of sale is declared valid and binding; the deposit is to be reinstated.
Judges
Yekiso
Legal Topics
Housing Consumers Protection Measures Act, Contract Cancellation, Specific Performance, Deposit Reinstatement
Land and Property Commercial and Corporate Housing Consumers Protection Measures Act Contract Cancellation Specific Performance Deposit Reinstatement

Case Brief

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Parties

Linda Ann Bekker

Applicant

Schmidt Bou Ontwikkelings CC

Respondent

André Kleynhans

Respondent

The Registrar of Deeds, Cape Town

Respondent

Procedural Posture

Civil Application / Judgment After Hearing on Merits

Legal Issues

  1. 1 Whether the deed of sale between the applicant and first respondent was validly cancelled in accordance with the contract.
  2. 2 Whether the deed of sale is void ab initio and unenforceable due to alleged conflict with the Housing Consumers Protection Measures Act.
  3. 3 Whether the deposit paid by the applicant should be reinstated as a deposit under the deed of sale.

Ratio Decidendi

The court found that the first respondent failed to strictly comply with the cancellation clause in the deed of sale. The required notices were not sent to the applicant's domicilium by prepaid registered post, did not specify the nature of the breach, and did not allow the seven-day period for remedy as stipulated in the contract. Consequently, the purported cancellation was invalid. Furthermore, the court held that section 10 of the Housing Consumers Protection Measures Act does not render the deed of sale void solely because the home builder failed to enrol with the National Home Builders Registration Council. Ignorance of the statutory requirements by the home builder does not justify...

Court Disposition

Application granted. The deed of sale is declared valid and binding; the deposit is to be reinstated.

Orders

  • It is declared that the deed of sale concluded between the applicant and the first respondent on 18 July 2003 is valid and binding.
  • The amount of R10,000 paid to the second respondent on behalf of the applicant is to be reinstated as a deposit under clause 2 of the deed of sale.