Bubu v Kay and Another (40591/2021) [2022] ZAGPJHC 779 (10 October 2022)

Bubu v Kay and Another (40591/2021) [2022] ZAGPJHC 779 (10 October 2022)

The court found that the applicant failed to pay the balance of the purchase price within the time stipulated in the agreement, even after an extension was granted. The agreement was cancelled validly in accordance with its terms after the applicant was given proper notice of breach. The protections of sections 19 and 27 of the Alienation of Land Act did not apply, as the contract was not an instalment sale agreement as defined by the Act. The penalty clause in the agreement was consistent with the Conventional Penalties Act, as it required the seller to elect between retaining R1 million as rouwkoop or claiming damages, but not both. The applicant was not entitled to a refund of the full...

Citation
[2022] ZAGPJHC 779
Parties
Applicant: Koleka Bubu; Respondent: Judith Lydia Kay; Respondent: L and W Properties (Barry Scott)
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
10 October 2022
Case Number
40591/2021
Procedural Posture
Civil Application / Judgment
Outcome
Application dismissed with costs on an attorney and client scale.
Judges
S Yacoob
Legal Topics
Sale of Immovable Property, Alienation of Land Act, Contract Cancellation, Penalty Clauses, Agent Commission, Deposit Refund
Land and Property Civil Procedure Sale of Immovable Property Alienation of Land Act Contract Cancellation Penalty Clauses Agent Commission Deposit Refund

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Parties

Koleka Bubu

Applicant

Judith Lydia Kay

Respondent

L and W Properties (Barry Scott)

Respondent

Procedural Posture

Civil Application / Judgment

Legal Issues

  1. 1 Whether the agreement of sale of immovable property between the applicant and first respondent is valid and enforceable.
  2. 2 Whether the applicant is entitled to a refund of her deposit with interest following cancellation.
  3. 3 Whether the cancellation of the agreement complied with the Alienation of Land Act, 68 of 1981.

Ratio Decidendi

The court found that the applicant failed to pay the balance of the purchase price within the time stipulated in the agreement, even after an extension was granted. The agreement was cancelled validly in accordance with its terms after the applicant was given proper notice of breach. The protections of sections 19 and 27 of the Alienation of Land Act did not apply, as the contract was not an instalment sale agreement as defined by the Act. The penalty clause in the agreement was consistent with the Conventional Penalties Act, as it required the seller to elect between retaining R1 million as rouwkoop or claiming damages, but not both. The applicant was not entitled to a refund of the full...

Court Disposition

Application dismissed with costs on an attorney and client scale.

Orders

  • The application is dismissed with costs on an attorney and client scale.
  • The respondent is to refund the balance of the applicant's deposit, together with interest in accordance with clause 1.1 of the agreement, upon the applicant vacating the property.