Gerber v Naidoo and Another (3048/2015) [2016] ZAECPEHC 11 (25 February 2016)

Gerber v Naidoo and Another (3048/2015) [2016] ZAECPEHC 11 (25 February 2016)

The court found that the written contract did not expressly exclude VAT and, in terms of section 64(1) of the VAT Act, the purchase price is deemed to include VAT. The respondents failed to bring a formal application for rectification and did not prove a common intention to exclude VAT. The contract was silent on the payment of electricity, and while the applicant conceded liability for charges from the date of occupation, this did not constitute a breach going to the root of the contract. The respondents' purported cancellation was not justified, as the alleged breaches were not material and did not entitle them to cancel. The applicant was therefore entitled to transfer of the property.

Citation
[2016] ZAECPEHC 11
Parties
Applicant: Jan Leonard Gerber; Respondent: Punithan Quentin Naidoo N.O; Respondent: Joelene Brown N.O
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
25 February 2016
Case Number
3048/2015
Procedural Posture
Civil Application / Final Judgment
Outcome
Application granted; transfer of property ordered.
Judges
Cossie
Legal Topics
Alienation of Land Act, Value Added Tax, Contract Interpretation, Rectification of Contract, Specific Performance
Land and Property Civil Procedure Alienation of Land Act Value Added Tax Contract Interpretation Rectification of Contract Specific Performance

Case Brief

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Parties

Jan Leonard Gerber

Applicant

Punithan Quentin Naidoo N.O

Respondent

Joelene Brown N.O

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the purchase price included VAT.
  2. 2 Whether the agreement provided for the payment of electricity by the applicant.
  3. 3 Whether the respondents were entitled to cancel the agreement.

Ratio Decidendi

The court found that the written contract did not expressly exclude VAT and, in terms of section 64(1) of the VAT Act, the purchase price is deemed to include VAT. The respondents failed to bring a formal application for rectification and did not prove a common intention to exclude VAT. The contract was silent on the payment of electricity, and while the applicant conceded liability for charges from the date of occupation, this did not constitute a breach going to the root of the contract. The respondents' purported cancellation was not justified, as the alleged breaches were not material and did not entitle them to cancel. The applicant was therefore entitled to transfer of the property.

Court Disposition

Application granted; transfer of property ordered.

Orders

  • The respondents must pass transfer and register the property Erf […], [M....], Draaifontein, Port Elizabeth into the name of the applicant.
  • The respondents must attend at the offices of Brown Braude and Vlok Incorporated within 5 days of service of this order, provide all necessary information, and sign all documents required to effect transfer and registration.