Lategan and Another v Leslie Mildenhall Trollip t/a Property Solutions (A297/10) [2011] ZAFSHC 47 (10 March 2011)

Lategan and Another v Leslie Mildenhall Trollip t/a Property Solutions (A297/10) [2011] ZAFSHC 47 (10 March 2011)

The court found that the suspensive condition in clause 2 of the Agreement of Sale required the granting of a loan by a registered bank on its normal terms and conditions by 23 November 2006. The loan approvals from Absa Bank were subject to special conditions, which did not constitute approval on normal terms. The respondent failed to provide evidence of what constituted normal terms and conditions, and no extension of the cut-off date was proven. The deeming provision did not override the requirement for normal terms. Consequently, the suspensive condition was not fulfilled, and the respondent was not entitled to commission. The contract lapsed or was validly cancelled by the appellants...

Citation
[2011] ZAFSHC 47
Parties
Appellant: Johannes Stephanus Lategan; Appellant: Marlet Lategan; Respondent: Leslie Mildenhall Trollip t/a Property Solutions
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
10 March 2011
Case Number
A297/10
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court Judgment
Outcome
Appeal upheld; judgment of the Magistrate set aside; respondent's claim dismissed with costs.
Judges
Hancke, Fischer
Legal Topics
Estate Agent Commission, Suspensive Condition, Agreement of Sale, Condonation, Contractual Interpretation
Commercial and Corporate Civil Procedure Estate Agent Commission Suspensive Condition Agreement of Sale Condonation Contractual Interpretation

Case Brief

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Parties

Johannes Stephanus Lategan

Appellant

Marlet Lategan

Appellant

Leslie Mildenhall Trollip t/a Property Solutions

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court Judgment

Legal Issues

  1. 1 Whether the suspensive condition in the Agreement of Sale was fulfilled, entitling the respondent to commission.
  2. 2 Whether the appellants were entitled to cancel the Agreement of Sale after the cut-off date.
  3. 3 Whether the respondent discharged the onus to prove entitlement to commission under the contract.

Ratio Decidendi

The court found that the suspensive condition in clause 2 of the Agreement of Sale required the granting of a loan by a registered bank on its normal terms and conditions by 23 November 2006. The loan approvals from Absa Bank were subject to special conditions, which did not constitute approval on normal terms. The respondent failed to provide evidence of what constituted normal terms and conditions, and no extension of the cut-off date was proven. The deeming provision did not override the requirement for normal terms. Consequently, the suspensive condition was not fulfilled, and the respondent was not entitled to commission. The contract lapsed or was validly cancelled by the appellants...

Court Disposition

Appeal upheld; judgment of the Magistrate set aside; respondent's claim dismissed with costs.

Orders

  • The Applications for Condonation dated 24 June 2010 and 4 October 2010 are granted and the appellants are ordered to pay the costs thereof.
  • The appeal succeeds with costs and the judgment of the Honourable Magistrate is set aside and varied to read: 'The plaintiffs’ claim is dismissed with costs.'