Lotter and Another v Roos and Another (54967/2007) [2008] ZAGPHC 153 (3 June 2008)

/SG

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

DATE: 03/06/2008

CASE NO: 54967/2007

UNREPORTABLE

In the matter between:

JOHANNES LÖTTER 1ST APPLICANT

SUSARA LÖTTER 2ND APPLICANT

And

JACOB ROOS 1ST RESPONDENT

MARIA ADRIANA ROOS 2ND RESPONDENT

JUDGMENT

SERITI, J

1. Introduction

This matter came to court by way of motion. In the notice of motion the applicants are praying for an order declaring the agreement of sale entered into by the parties, signed on 8 December 2005, in respect of immovable property situated at Erf 2012, Villeria, Pretoria to be validly cancelled.

2. Background Facts

2.1 On or about 8 December 2005 the parties entered into an agreement of sale, in terms of which the applicants sold to the respondents certain immovable property.

2.2 Clause 2 of the agreement stipulates that the agreement is subject to the suspensive condition, namely that the transaction is subject to the successful subdivision of Erf 2012, Villeria, the costs of which will be carried by the purchaser.

Clause 7 thereof deals with breach of contract and the notice to be given to the defaulting party and the summary cancellation of the agreement.

2.3 On 15 August 2005 the first and second applicants gave respondents written permission, in terms of which the first respondent could take all reasonable steps to subdivide the property. First respondent approached a certain Mr J M Spies to assist. Mr Spies was given Special Power of Attorney duly signed by the applicants.

First respondent, who in terms of the contract was to pay for the costs of subdivision, dealt with Mr Spies.

2.4 In terms of the sales agreement Adriaan Booysens Attorneys were to be instructed to deal with the transfer of the subdivided property into the names of the purchasers.

2.5 The first respondent communicated with Mr Spies over a period of time, and paid certain expenses relating to the subdivision, eg the land surveyor, the city council and the plumbers.

2.6 On 9 October 2007 the applicants’ attorneys addressed a letter to the respondents wherein it is stated, inter alia that the delay in effecting transfer of the property into the names of the respondents has become unreasonable in the circumstances, and the respondents were given ten days to remedy the breach, failing which the applicants will cancel the agreement.

The letter was sent to the respondents chosen domicilium citandi et executandi by registered post.

2.7 On 24 October 2007 a further letter was addressed to the respondents wherein it is stated that “You have failed to remedy the breach … As a result, our client hereby cancels the sale of the property.”

In a letter dated 1 November 2007, the respondents’ attorneys disputed the alleged cancellation of the sales agreement, and also stated that the respondents have not received the letter from applicants’ attorneys dated 9 October 2007. The letter further stated that the respondents, incurred money to do certain works on the property in question, and respondents have paid the applicants an amount of R20 000.00 the balance of the purchase price being an amount of R30 000.00 was paid into the trust account of the transferring attorneys on 18 September 2007.

2.8 The applicant alleges that they are entitled to cancel the agreement as it has taken unreasonable time to complete the transfer and that the delay was occasioned by the respondents.

2.9 The respondents served and filled a counter application in terms of which the respondents are praying for an order compelling the applicants to remove certain structures on the property in order to comply with the conditions set out by the city council prior to the city council approving the subdivision.

3. Findings

3.1 In the founding affidavit, the applicants allege that all other conditions in the agreement have been satisfied and they have complied with their obligations in terms of the agreement. Clause 2 of the agreement reads as follows:

“Opskortende Voorwaarde

Die partye plaas op rekord dat die transaksie onderhewig is aan die suksesvolle onderverdeling van Erf 2012 Villeria Dorpsgebied, die koste waarvan die koper verantwoordelik sal wees, welke onderverdeling deur die kopers behartig sal word.”

3.2 From the evidence on record, it emerges that the respondents have engaged the services of Mr Spies to deal with the subdivision, which subdivision, in principle has been approved subject to certain conditions. The respondents are in the process of dealing with some of the outstanding conditions, respondents have paid in full the purchase price and have also incurred expenses of R40 000.00 – R50 000.00 in order to eventuate the subdivision as required by the sales agreement mentioned above.

3.3 In Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd 1982 1 SA 398 (AD) 432C-D MILLER JA said “A true suspensive condition in a contract has the effect of postponing the operation of the contract until the happening of some uncertain future event.”

In Design and Planning Service v Kruger 1974 (1) SA 689 (TPD) 695C-D BOTHA J said:

“In the case of a suspensive condition, the operation of the obligations flowing from the contract is suspended, in whole or in part, pending the occurrence or non occurrence of a particular specified event … A term of the contract, on the other hand, imposes a contractual obligation on a party to act, or to refrain from acting in a particular manner. A contractual obligation flowing from a term of the contract can be enforced, but no action will lie to compel the performance of a condition.”

In Resisto Diary v Auto Protection Insurance Co 1963 (1) SA 632 (AD) 644G-H HOEXTER JA said the following:

“In our law the fulfilment of a true suspensive condition must be pleaded and proved by the person who is relying on the contract, but the breach of a term in the contract must be pleaded and proved by the person who relies on such a breach as a ground for repudiating liability under the contract.”

3.4 In his heads of arguments, the applicants’ counsel submitted that the respondents’ failure to finalise the subdivision of the property and to effect transfer of the relevant portion since December 2005, constitute a breach of a material terms of the agreement.

The contract under consideration, clearly states that transaction is subject to the successful subdivision of the property in question. The condition in question is a suspensive condition. The said suspensive condition postpones the operation of the contract, until the property is subdivided. The operation of the contract is suspended and there can be no breach of any of its provisions.

3.5 In the founding papers, the applicants alleged that the suspensive condition has been fulfilled and consequently, on 10 October 2007 the applicants placed the respondents on terms to remedy their breach of the contract.

As stated in Resisto Diary’s case supra, the fulfilment of a suspensive condition must be pleaded and proved by the person who is relying on the contract. The applicants, in the founding papers alleged that the condition was fulfilled, but the papers further filled in this case indicates that the suspensive condition has not been fulfilled, although same is about to be fulfilled. Consequently, the applicants cannot rely on the clauses contained in the agreement for any remedy.

In my view the applicants have failed to make out a case for the order as contained in their notice of motion.

3.6 In the counter application, the respondents are praying for an order compelling the applicants to co operate with the respondents in ensuring that the suspensive condition contained in clause 2 of the agreement is fulfilled.

3.7 As stated earlier, the City of Tshwane in principle has approved the subdivision subject to certain conditions.

The city council of Tshwane stipulated certain conditions which must be complied with prior to the approval for subdivision is granted. The only outstanding conditions is the removal of the wendy house, a pole and shrubs.

3.8 In the replying affidavit the respondents alleges that, on 15 November 2007 he visited the property together with an assistant. The purpose of the visit was to remove the wendy house as instructed by the city council. Prior to them finishing the work Ms Marissa Nel daughter of the applicants came to the property and informed them that her attorney advised her that she must instruct them to leave the premises as they intend obtaining a court order.

3.9 From the papers, it is clear that the respondents are desirous to comply with the instructions of the city council in order to enable the city council to grant approval for the subdivision but the applicants are obstructive. Without the full co operation of the applicants, it will be difficult for the respondent to obtain the city council’s approval for the subdivision.

As stated by Mr Spies who is dealing with the subdivision, the time lapse from the date of signing his confirmatory affidavit is not unreasonably long. In fact, the evidence before court is that the subdivision was in principle approved and most of the conditions stipulated by the city council with exception of few outstanding conditions have been complied with.

If the applicant co operates with the respondents the few outstanding conditions will be met.

My view is that the respondents have made out a case for the order as contained in their counter application.

4. Conclusion

The court therefore makes the following order:

4.1 The applicants’ application is dismissed.

4.2 The applicants are directed to co operate with the respondents in order to enable the latter to comply with the conditions as stipulated by the city council. In particular, the applicants are directed to allow the respondents access onto the property in order to enable the respondents to remove the wendy house, pole and shrubs as instructed by the city council.

4. The applicant are ordered to pay the costs of the respondents on a party and party scale, which costs will include the costs of the counter application.

W L SERITI

JUDGE OF THE HIGH COURT

54967/2007

Heard on: 20 May 2008

For the Applicants: Adv F R van den Heever

Instructed by: Messina Incorporated, Pretoria

For the Respondents: Adv T Strydom

Instructed by: Messrs Burden & Swart Attorneys, Pretoria

Date of Judgment: 03 June 2008