Kondile v Nothnagel NO (49891/2016) [2018] ZAGPPHC 858 (19 August 2018)

Kondile v Nothnagel NO (49891/2016) [2018] ZAGPPHC 858 (19 August 2018)

The plaintiff failed to prove fraudulent concealment of the absence of a certificate of occupation and the impediments to obtaining it. While the absence and impediments constituted a latent defect, the voetstoots clause exempted the defendant from liability unless dolo malo was established, which was not. The defendant validly cancelled the agreement and invoked the rouwkoop clause, entitling him to retain the deposit. Counterclaims for rates and levies incurred prior to cancellation and interest on the purchase price were upheld as contractual entitlements. Claims for auctioneer's commission and damages for holding over were dismissed due to the operation of the Conventional Penalties...

Citation
[2018] ZAGPPHC 858
Parties
Plaintiff: Nceba Elliot Kondile; Defendant: Martinus Wilhelmus Nothnagel N.O.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
19 August 2018
Case Number
49891/2016
Procedural Posture
Civil Judgment / Trial Judgment
Outcome
Plaintiff's claim dismissed. Defendant's counterclaims for rates/levies and interest on purchase price upheld. Other counterclaims dismissed or absolution from the instance granted. Costs apportioned.
Judges
Moultrie AJ
Legal Topics
Rouwkoop Clause, Voetstoots Clause, Latent Defect, Contractual Damages, Specific Performance, Conventional Penalties Act
Land and Property Civil Procedure Rouwkoop Clause Voetstoots Clause Latent Defect Contractual Damages Specific Performance Conventional Penalties Act

Case Brief

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Parties

Nceba Elliot Kondile

Plaintiff

Martinus Wilhelmus Nothnagel N.O.

Defendant

Procedural Posture

Civil Judgment / Trial Judgment

Legal Issues

  1. 1 Whether the plaintiff is entitled to the return of his deposit after valid cancellation and invocation of a rouwkoop clause by the defendant.
  2. 2 Whether the absence of a certificate of occupation and impediments to obtaining it constitute a latent defect justifying restitution.
  3. 3 Whether the voetstoots clause and alleged fraudulent concealment by the defendant preclude reliance on latent defect remedies.

Ratio Decidendi

The plaintiff failed to prove fraudulent concealment of the absence of a certificate of occupation and the impediments to obtaining it. While the absence and impediments constituted a latent defect, the voetstoots clause exempted the defendant from liability unless dolo malo was established, which was not. The defendant validly cancelled the agreement and invoked the rouwkoop clause, entitling him to retain the deposit. Counterclaims for rates and levies incurred prior to cancellation and interest on the purchase price were upheld as contractual entitlements. Claims for auctioneer's commission and damages for holding over were dismissed due to the operation of the Conventional Penalties...

Court Disposition

Plaintiff's claim dismissed. Defendant's counterclaims for rates/levies and interest on purchase price upheld. Other counterclaims dismissed or absolution from the instance granted. Costs apportioned.

Orders

  • The plaintiff’s claim is dismissed.
  • Plaintiff to pay defendant R15,247.96 plus interest from 1 September 2016 for rates and levies.