Kgotsi and Another v Modise (6620/19) [2019] ZAGPPHC 647 (14 November 2019)

Kgotsi and Another v Modise (6620/19) [2019] ZAGPPHC 647 (14 November 2019)

The court found that the applicants obtained the necessary loan approval within the time stipulated in the contract and communicated this to the transferring attorneys. Although the applicants failed to provide the bank guarantee by the deadline, the contract required the respondent to dispatch a notice to remedy the breach before cancellation (Clause 7, Lex Commissoria). The respondent conceded that no such notice was given. The court held that the respondent's failure to follow the contractual procedure invalidated the purported cancellation. Accordingly, the contract remains valid and enforceable, and the applicants are entitled to specific performance and costs.

Citation
[2019] ZAGPPHC 647
Parties
Applicant: Joseph Mpho Kgotsi; Applicant: Thembisile Lorraine Kgotsi; Respondent: Anna Lina Modise
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
14 November 2019
Case Number
6620/19
Procedural Posture
Civil Application / Opposed Motion; Judgment Delivered
Outcome
Application granted; contract declared valid; respondent's cancellation declared null and void; specific performance ordered; costs awarded against respondent.
Judges
Collis
Legal Topics
Specific Performance, Sale of Immovable Property, Lex Commissoria, Contractual Breach, Remedy of Breach
Land and Property Civil Procedure Specific Performance Sale of Immovable Property Lex Commissoria Contractual Breach Remedy of Breach

Case Brief

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Parties

Joseph Mpho Kgotsi

Applicant

Thembisile Lorraine Kgotsi

Applicant

Anna Lina Modise

Respondent

Procedural Posture

Civil Application / Opposed Motion; Judgment Delivered

Legal Issues

  1. 1 Whether the sale and purchase contract dated 18 November 2018 is valid and whether the respondent's purported cancellation is null and void.
  2. 2 Whether the applicants complied with the suspensive conditions and guarantee requirements under the contract.
  3. 3 Whether the respondent was entitled to cancel the contract without giving notice to remedy breach as required by the contract.

Ratio Decidendi

The court found that the applicants obtained the necessary loan approval within the time stipulated in the contract and communicated this to the transferring attorneys. Although the applicants failed to provide the bank guarantee by the deadline, the contract required the respondent to dispatch a notice to remedy the breach before cancellation (Clause 7, Lex Commissoria). The respondent conceded that no such notice was given. The court held that the respondent's failure to follow the contractual procedure invalidated the purported cancellation. Accordingly, the contract remains valid and enforceable, and the applicants are entitled to specific performance and costs.

Court Disposition

Application granted; contract declared valid; respondent's cancellation declared null and void; specific performance ordered; costs awarded against respondent.

Orders

  • It is declared that the sale and purchase contract dated 18 November 2018 between the parties is valid and the purported cancellation by the respondent is null and void.
  • The respondent is to appoint a conveyancer to attend to the transfer of the property within 10 court days of the date of this order.