Du Preez v Alpha Valencia (Pty) Ltd (26146/2020) [2021] ZAGPPHC 332 (21 May 2021)

Du Preez v Alpha Valencia (Pty) Ltd (26146/2020) [2021] ZAGPPHC 332 (21 May 2021)

The court found that the respondent's obligation to deliver bank guarantees and pay the purchase price was an independent obligation, not subject to the approval of the township establishment. The suspensive conditions were expressly deleted and replaced with fixed cut-off dates by addenda. The respondent failed to deliver the guarantees by 31 March 2020 and did not prove any fact that would excuse performance due to impossibility or undue hardship. The acceptance of monthly payments by the applicant did not constitute a waiver, as those payments were part of the purchase price. The respondent did not discharge the onus to show that specific performance would be unfair, operate...

Citation
[2021] ZAGPPHC 332
Parties
Applicant: Johannes Mattheus Du Preez; Respondent: Alpha Valencia (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
21 May 2021
Case Number
26146/2020
Procedural Posture
Specific Performance Application / Final Judgment
Outcome
Application granted; specific performance ordered in favour of the applicant.
Judges
Francis-Subbiah
Legal Topics
Specific Performance, Sale of Immovable Property, Contractual Breach, Impossibility of Performance, Tacit Terms, Mora Interest
Land and Property Civil Procedure Specific Performance Sale of Immovable Property Contractual Breach Impossibility of Performance Tacit Terms Mora Interest

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Parties

Johannes Mattheus Du Preez

Applicant

Alpha Valencia (Pty) Ltd

Respondent

Procedural Posture

Specific Performance Application / Final Judgment

Legal Issues

  1. 1 Whether the respondent is obliged to deliver bank guarantees and pay the outstanding purchase price by the contractual cut-off date.
  2. 2 Whether the respondent's obligation to deliver guarantees was subject to approval of township establishment.
  3. 3 Whether impossibility of performance or undue hardship excuses the respondent from specific performance.

Ratio Decidendi

The court found that the respondent's obligation to deliver bank guarantees and pay the purchase price was an independent obligation, not subject to the approval of the township establishment. The suspensive conditions were expressly deleted and replaced with fixed cut-off dates by addenda. The respondent failed to deliver the guarantees by 31 March 2020 and did not prove any fact that would excuse performance due to impossibility or undue hardship. The acceptance of monthly payments by the applicant did not constitute a waiver, as those payments were part of the purchase price. The respondent did not discharge the onus to show that specific performance would be unfair, operate...

Court Disposition

Application granted; specific performance ordered in favour of the applicant.

Orders

  • It is declared that the respondent owes the applicant R7,900,000.00 plus interest a tempore morae from 6 April 2020 to date of payment.
  • The respondent must pay R7,900,000.00 into the trust account of the applicant's attorneys within seven days, to be held in trust and made payable to the applicant upon transfer of the property into the respondent's name.