Govender and Another v Maitin and Another (11976/07) [2008] ZAKZHC 31; 2008 (6) SA 64 (D) (8 February 2008)

IN THE HIGH

COURT OF SOUTH AFRICA

DURBAN AND COAST LOCAL DIVISION

11976/07

REMONE

GOVENDER FIRST APPLICANT

AMANDA

GOVENDER SECOND APPLICANT

versus

DERIK PASEKA MAITIN FIRST RESPONDENT

REGISTRAR OF DEEDS, KWAZULU-NATAL SECOND RESPONDENT

RESERVED JUDGMENT

Delivered on: 8 February 2008

NTSHANGASE, J

[1] A rule nisi was issued after an urgent application on 22 October 2007 and itcalled upon the first respondent to show cause why the following relief should not be granted, namely, an order that –

“2 (a) The first respondent be interdicted and restrained from

selling, letting, passing a mortgage over or in any way encumbering or disposing of the immovable property described as Erf 258 situated at 33 Grundell Road, Glenmore, Durban, Kwazulu-Natal (hereinafter referred to as “the property”;

(b) The first and second respondents be and are hereby interdicted and restrained from effecting transfer of the property from the name of the first respondent into the name of any person other than the applicants;

(c) That, subject to the provisions of paragraph(f) below, the first respondent be and is hereby directed to do all things necessary and to sign all documents forthwith upon the service of this order upon him so as to cause the property to be transferred into the name of the first and second applicants;

(d) In the event of the first and second respondents not adhering to paragraph (c) above, then and in that event and subject to the provisions of paragraph (e) below, the Deputy Sherriff be and is hereby authorised to sign all documentation on behalf of the first respondent to give effect to the aforementioned transfer of the property to the applicants;

(e) That the operation of the relief set fourth in paragraph ©, alternatively paragraph (d), is subject to the applicants complying with their payment requirements and other outgoings necessary to effect transfer as set out in the purchase and sale agreement, Annexure “A” to these papers;

(f) That the first respondent be and is hereby directed to bear the costs of this application on an attorney and own client scale.

3. That the orders prayed for in paragraphs (a), (b) and (f) hereof are to operate as an interim order pending the return date of the rule nisi.”

[2] The application is opposed, on the version of the first respondent on the

grounds that after the first respondent received an agreement of purchase and sale with the first applicant’s offer to purchase his property, the first respondent made a counter-offer to the first applicant which, on first respondent’s version the applicant did not sign; instead it was communicated by the applicants to the first respondent via Craig Goodsell (“Goodsell”), an estate agent involved in the transaction, that there was no agreement. It is opposed also on the applicants’ own version, that such version discloses no cause of action for reasons which will be dealt with later.

[3] On the facts as averred by the applicants, on 4 August 2007 the first applicant signed a purchase and sale agreement (“the agreement”) to purchase immovable property described as Erf 258 situated at 33 Grundell Road, Glenmore, Durban, Kwazulu-Natal (“the property”) for the sum of R1,180 000.00. On 7 August the agreement was signed by the second applicant and, on the same date also signed and accepted by the first respondent in Durban. It is not necessary to dwell on the issue of payment, save to state that on applicants’ version the entire purchase price was guaranteed within the stipulated dies.

[4] It is not in dispute that the first respondent mandated estate agents trading under the name “Remax address” (“Remax”) to sell his property. After initially dealing with one agent from Remax, the first respondent eventually dealt with Goodsell. Prior to receiving an offer to purchase, the agent before Goodsell had arranged a “show house” to be held on Sunday, 5 August 2007. On the preceding Friday or Saturday Goodsell left the agreement of purchase and sale (“the document”) with the offer to purchase at first respondent’s house. It bore the signature of the first applicant. The first respondent was prepared to accept the first applicant’s offer and in fact accepted the offer subject to the reduction in the time period for payment of the “further deposit” of R900 000. The first respondent altered the number of days under clause D(b) of the document to “14” after deleting “30”. He duly initialled the alteration on the document. The date and time of first respondent’s acceptance reflects above his signature on page 10 of “the document,” Annexure “A” to the applicants’ founding affidavit.

[5] Viewed in the light of the definition accorded to a “material term” in Jones v Wykland Properties 1998 (2) SA 355(C) at 359 the materiality of the term introduced by the alteration for purposes of section 2(1) of the Alienation of Land Act No. 68 of 1981 is established. There is no dispute as to its materiality and that it constituted a counter-offer.

[6] After the document had been altered and signed, the first respondent

transmitted it to the first applicant via Goodsell to be signed in acceptance of the counter-offer. There is no dispute that the first applicant did not sign the document.

[7] There is a factual dispute as to whether or not the second applicant signed the document on 7 August 2007 as averred by the applicants.

According to first respondent Goodsell informed him that applicants had viewed the property and discovered on it several defects which they wanted to consider further. The first respondent, according to his version, expressed surprise to Goodsell at the attitude of the applicants and said “I … informed him that irrespective of the perceived defects in the property they had signed, and surely we already had an agreement.” I pause here to state that I have not found an explanation why, if the applicants had both not signed, first respondent said “they had signed.” He points out that he lacked legal knowledge to appreciate that for the counter-offer to constitute an agreement, it required to be accepted by the first applicant to whom it was made. As a result of these discussions and events the first respondent accepted that applicants did not want to proceed with the sale, had not accepted his counter-offer and that he would need to re-sell the property. According to the applicants’ version as confirmed by Goodsell, when the first respondent signed the agreement on 7 August 2007, Goodsell “informed the first respondent that the second applicant was awaiting her turn to sign the agreement and would do so immediately upon receipt thereof.” The first respondent denies that he was told by Goodsell that the second applicant awaited her turn to sign, and that once she

had signed, Goodsell immediately attempted but failed to make telephonic contact with the first respondent. It appears to me, from both versions, that neither the first nor the second applicant’s acceptance of the first respondent’s counter-offer was communicated to the first respondent. I pause here to state that an argument on behalf of the appliants was also advanced that to the extent that Goodsell may have been responsible for the errant processing of the transaction, he was the first respondent’s agent. He was not. He was merely a conduit pipe whose task was to find a buyer. (See Just Names Properties 11 cc and Another v Fourie and Others 2007(3) SA 1 (WLD) at 14A-B).

[8] On this factual dispute I consider that the first respondent’s version must

prevail. (See Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984(2) SA 623 (A)). It begs the question why, if Goodsell was in fact informed by the second applicant that she awaited her turn to sign, she did not sign the document which was in Goodsell’s possession before he left it at the first respondent’s house for him (first respondent) to consider. The document, filed as Annexure “A” to the first applicant’s founding affidavit presently bears the signatures of both applicants. It clearly appears to me from the foregoing that there was no agreement.

[9] Even from an approach of the matter on the applicants’ own version there are reasons why, in my view, the application must fail. The first applicant alone had signed the document to make an offer to the first respondent who, upon receipt thereof, responded by making a counter-offer to the first applicant. The first applicant failed to communicate his acceptance of the counter-offer to the first respondent. He exited from the scene and into the scene stepped the second applicant, who, according to the applicants’ version signed the document on both their behalves to accept the first respondent’s offer.

[10] The argument on behalf of the applicants in this regard relies on Chapter II,sections 15(2), read with section 15(9) of the Matrimonial Property Act No. 88 of 1984 as support for the proposition that by virtue of being partners in the marriage in community of property each spouse is empowered to bind the other as well as, in this case, the first respondent in a contract subject to the consent or ratification thereof by the other spouse. Ms Moodley for the applicants argued that in terms of section 15(9)(a) the agreement is binding on the first respondent regardless of the knowledge he may not have had, for, in that situation, so it was argued, that section of the Act protects them and ensures that the agreement is binding.

[11] I deal now with, section 15(2) and section 15(9). Subsection 2 of section 15 provides that:

“such a spouse shall not without the written consent of the other spouse …”

Perform a number of juristic acts named in paragraphs (a) to (h) of that subsection. Paragraph (g) of subsection (2) specifically provides that:

“such a spouse shall not without the written consent of the other spouse –

as a purchaser enter into a contract as defined in the Alienation of Land Act, 1981 (Act 68 of 1981) and to which the provisions of that Act apply.”

It is a provision couched in peremptory terms. In the present case no evidence of such written consent was tendered. Section 15(9) of the Alienation of Land Act provides:

“When a spouse enters into a transaction with a person contrary to the provisions of subsection (2) … and -

that person does not know and cannot reasonably know

that the transaction is being entered into contrary to those provisions …, it is deemed that the transaction concerned has been entered into with the consent required in terms of the said subsection (2) or (3), or while the power concerned of the spouse has not been suspended, as the case may be;

that spouse knows or ought reasonably to know that he

will probably not obtain the consent required in terms of the said subsection (2) or (3), or that the power concerned has been suspended, as the case may be, and the joint estate suffers a loss as a result of that transaction, an adjustment shall be effected in favour of the other spouse upon the division of the joint estate.”

In regard to section 15(9) I cannot conceive the intention of the legislature as having been to provide a weapon to enable partners in a marriage in community of property to enforce transactions against third parties where any of such spouses contract contrary to the peremptory provisions of section 15(2) with third parties who act in good faith and do not know and cannot reasonably know that the transaction is being entered into contrary to those provisions, purely because section 15(9) provides that “it is deemed that the transaction concerned has been entered into with the consent required in terms of subsection (2) …” I do not consider section 15(9) of the Act to be of assistance to the applicants’ case.

[12] In regard to the proposition that when the second applicant signed the

document to accept the first respondent’s counter-offer she did so on behalf of herself and the first respondent, what needs to be pointed out is that the counter-offer was made to the first applicant who had made the offer to the first respondent. Now, a marriage in community of property does not endow either party with the power to divest a third party of his or her right to contract with any specific person of his or her choice for, “… everyone has the right to select and determine with whom he will contract and another cannot be thrust upon him without consent regardless of whether the offeror had special reasons for contracting with the offeree rather than someone else.” (per Krause J in Blew v Snoxell 1931 T.P.D. 226 at 229 approved by Corbett JA in Levin v Drieprok Properties (Pty) Ltd 1975(2) SA 397 at 407F. In Blew (supra) at 229-230 Krause J also stated:

“It is trite law that an offer made by one person to another cannot be accepted by a third for the a simple reason that there was no intention on the part of the one person to contract with the other person whatever the subject matter of the contract may be.”

I do not find that the counter-offer was made to any other person than the first applicant; nor do I find that the second applicant is such a person as was contemplated in the counter-offer at the time it was made.

[13] In the presentation of the applicants’ case one scenario shows the first applicant signing the purchase and sale agreement without the written consent of his spouse and thereafter to exit the scene so that when the first respondent’s counter-offer is made, the second applicant took over, signed the document and accepted the counter-offer. This is in violation of the provisions of section 2(1) of the Alienation of Land Act. That scenario in terms of their version urges for approval of the proposition that they purchased jointly which means that each of them contracted with the first respondent, and that therefore on both occasions they were both buying the property, each representing the other as they did so, in terms of their version. That they purported to do so is evident from their papers in these proceedings where they state:

“Should the second applicant or I be in any default of any obligation arising out of the agreement, the first respondent is at liberty to hold the second applicant and me in breach, and demand our compliance with the agreement. Should the second applicant and I fail to comply within seven days of such notice then, and then only, is the first respondent at liberty to cancel the agreement. The first respondent has never given the second applicant or me any notice holding us in breach or requiring our compliance in terms of the agreement.”

I do not consider that more needs to be said to show the dismal failure of the version of the applicants’ case. There was no enforceable agreement compliant with the provisions of section 2(1) of the Alienation of Land Act No. 68 of 1981. In the result I make the following order:

Order

[14] The rule nisi is discharged, with costs.

Date of Hearing: 20 November 2007

Date of Judgment: 8 February 2008

Counsel for the applicant: Adv M Moodley

Instructed by: Harkoo Brijlal & Reddy

Counsel for the first respondent: Adv A Stokes SC

Instructed by: AMC Hunter Inc.

Attorneys for the second respondent: Registrar of Deeds KZN

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