Bubu v Kay and Another (40591/2021) [2023] ZAGPJHC 144 (15 February 2023)

Bubu v Kay and Another (40591/2021) [2023] ZAGPJHC 144 (15 February 2023)

The court found the applicant was in breach of the sale agreement, as neither payment nor a guarantee was provided by the date stipulated in the addendum, and the respondent was entitled to cancel. The contract was not ambiguous when interpreted contextually, and the applicant was placed in mora by the demand letter. The argument regarding disproportionate penalty was not properly pleaded or argued, and there was no evidence before the court to assess proportionality. The agent's commission issue was ambiguous in the judgment, and the court acknowledged that another court could reach a different or clearer decision on this point. Leave to appeal was granted only on the third ground...

Citation
[2023] ZAGPJHC 144
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
15 February 2023
Case Number
40591/2021
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Main Application for Declaratory Relief and Return of Deposit.
Outcome
Leave to appeal granted to the Full Court of the division on the agent's commission issue only; no costs order made.
Judges
S Yacoob
Legal Topics
Sale of Immovable Property, Contractual Breach, Penalty Stipulations, Agent Commission, Leave to Appeal
Land and Property Civil Procedure Sale of Immovable Property Contractual Breach Penalty Stipulations Agent Commission Leave to Appeal

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 1 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Koleka Bubu

Applicant

Judith Lydia Kay

Respondent

L AND W Properties (Barry Scott)

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Main Application for Declaratory Relief and Return of Deposit.

Legal Issues

  1. 1 Whether the applicant was in breach of the sale agreement at the time of cancellation.
  2. 2 Whether the retention of both the non-refundable deposit and rouwkoop constitutes a disproportionate penalty.
  3. 3 Whether the agent's commission should be included in the rouwkoop amount or paid separately.

Ratio Decidendi

The court found the applicant was in breach of the sale agreement, as neither payment nor a guarantee was provided by the date stipulated in the addendum, and the respondent was entitled to cancel. The contract was not ambiguous when interpreted contextually, and the applicant was placed in mora by the demand letter. The argument regarding disproportionate penalty was not properly pleaded or argued, and there was no evidence before the court to assess proportionality. The agent's commission issue was ambiguous in the judgment, and the court acknowledged that another court could reach a different or clearer decision on this point. Leave to appeal was granted only on the third ground...

Court Disposition

Leave to appeal granted to the Full Court of the division on the agent's commission issue only; no costs order made.

Orders

  • The applicant is granted leave to appeal to the Full Court of this division on the ground contained in paragraph 4 of her notice of application for leave to appeal.
  • No order as to costs.