CF and SP Investments CC v PPA Lightco CC and Another (94051/2015) [2017] ZAGPPHC 365 (9 May 2017)

IN

THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 94051/2015

DATE: 9/5/2017

In the application between:

CF & SP INVESTMENTS CC

Applicant

and

PPA

LIGHTCO CC First

Respondent

ZENIA SMITH Second

Respondent

JUDGMENT

IN THE APPLICATION FOR LEAVE TO APPEAL

Rautenbach A

1. The Judgment in the main application was given on the 27th November 2016. The following orders were made:

1. There is no order as to costs in relation to the urgent application which was brought in December 2015.

2. The main application of the Applicant is dismissed.

3. The Applicant is ordered to pay the First Respondent's costs in the main application on the party to party scale.

2. Since then and within the applicable time limits, the Applicant filed an application for leave to appeal against the dismissal of its application. The appeal is also directed against cost issues in the sense that the Applicant is of the view that should it be successful on appeal, the First Respondent should be ordered to pay the costs of the application including the costs of the urgent application and the costs in the appeal.

3. Applicant mainly raised the same points it did when the matter was originally argued before me.

4. During argument however the Applicant specifically referred me to the Judgment of Ariefdien v. Soeker 1982 (2) SA 570 (C). In that matter the following appeared in the offer to purchase:

''This offer is irrevocable and expires at 5 p.m. on 13 September 1979."[1]

5. In that matter it was also common cause that the offer was accepted in writing after 5 p.m.

6. The Court found that the quoted part above was meaningless and regarded it as pro non scripto, probably referring to the words "5 p.m. on 13 September" after the words "this offer is irrevocable".

7. It was further common cause that the Defendant signed the original Agreement, amended a term which was of no real importance and that amendment was initialled by both the Plaintiff and the Defendant subsequent to 5 p.m. on the relevant day.

8. Counsel for the Applicant has urged me to find that there is a similarity in the matter before me and that another Court may likewise find that the term specifically in relation to the guarantees that had to be given at a date before the Contract was signed, was meaningless and therefore pro non scripto.

9. There is also the Judgment of Manna v. Lotter and Another 2007 (4) SA 315 (C) where the Court dealt with a situation where the Purchaser accepted the late acceptance by the Seller and the Court found that the Purchaser was entitled to specific performance.

10. In my view these two Judgments do not provide any assistance to the Applicant in its application for leave.

11. Should I have come to the conclusion in my Judgment that the impugned clause 2.2 of the Deed of Sale was in fact pro non scripto, the Contract would indeed fall foul of the Alienation of Land Act 68 of 1981. Section 6 of this Act provides as follows:

"1. A contract shall contain-

(a) ...

(s) The period within which the purchaser is obliged or may be compelled to take transfer of the land against simultaneous payment of all amounts owed by him in terms of the contract."

12. If it is so that Section 2.2 should have been found to be pro non scripto, it would have been impossible to comply with the mandatory provisions of Section 6.1(s) as the period within which the Purchaser is obliged or may be compelled to take transfer of the land would have been unknown and not determinable.

13. As I have pointed out in my Judgment, this Court is not at liberty to interpret clause 2.2 in a manner which is inconsistent with the clause in interpreting it as to mean that guarantees had to be supplied within a period of 6 weeks or so after the conclusion of the Agreement. In City of Tswane v. Marius Blom and G C Germishuizen Inc & Another [2] Zondi AJA quoted with approval from Natal Joint Municipal Pension Fund v. Endumeni Municipality [3] where Wallis JA writing for the Supreme Court of Appeal stated amongst others as follows:

"The process is objective, not subjective. The sensible meaning is to be preferred to one that leads to insensible and unbusiness-like results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or business-like for the words actually used. To do so in regard to a statute or statutory instrument is to cross the

divide between the interpretation and legislation, in a contractual context it is to make a contract for the parties other than the one they in fact made."

14. I am of the view that the authorities that I referred to above, do not entitle me to go as far as to provide the parties with a new clause in order to secure the validity of the Agreement. As pointed out in my Judgment, the Applicant's failure to apply for

rectification (in my view the only remedy available to it) had the consequence that the Applicant could not succeed in its application.

15. Before I deal with my order in this matter, I wish to point out that it came to my attention during the preparation of this Judgment that in paragraph 7 of the main Judgment there is reference to the word "grievance" which in fact should have read "agreement". This typographical error however has no impact on the Judgment or the application for leave to appeal.

16. I am of the view that another Court may not come to a different conclusion than the one I came to in the main Judgment and that there is no prospects of success on appeal. In the circumstances I make the following order:

1. The application for leave to appeal is dismissed with costs.

Rautenbach AJ

4 April 2017

[1] Pg. 575.

[2] 2014 (1) SA341 (SCA)

[3] 2012 (4) SA 593 (SCA) paras 17 to 26