Mmakola and Another v Nelep (A331/2013) [2013] ZAGPPHC 476 (5 December 2013)

IN THE NORTH GAUTENG HIGH COURT, PRETORIA

(REPUBLIC OF SOUTH AFRICA)

CASE NO: A331/2013

DATE: 05 DECEMBER 2013

In the matter between:

SIMON MALOSI MMAKOLA......................................................1ST

APPELLANT

LI VIA MABOLATSI MMAKOLA..............................................2ND

APPELLANT

And

NELEP................................................................................................RESPONDENT

JUDGMENT

MOGOTSI, AJ

1. INTRODUCTION

The appellants appealed against the judgment delivered by the Magistrate of Louis Trichardt in the district of Soutpansberg on 6 December 2012. The appeal lapsed due to non-prosecution. The

respondent had also lodged a cross appeal. This court proceeded only with the cross appeal.

Condonation of the respondent's (applicant in the cross appeal) late filing of heads of argument was granted on 12 November 2013.

The first appellant acts on behalf of the second appellant.

2. ISSUES TO BE

DETERMINED ON APPEAL

2.1 Whether respondent is entitled to claim payment of R178 499.99 with is interest at the rate of 15.5% per annum on the amount of R2 975 000.00 for the period 30 May 2008 to 23 October 2008.

2.2 Whether the learned magistrate erred in granting interest on the outstanding purchase for the period September to October 2008 only.

2.3 Whether the court a quo erred in not granting an order that the appellants must pay costs of counsel for respondent.

3. THE FACTS

3.1 Appellants purchased a farm Ananskraal 341 L.S. from respondent at R3 500 000.00 at a public auction on 17 April 2008 on the following terms:

3.1.2 That appellants must immediately pay a deposit of R525 000.00. Appellants paid the said deposit.

3.1.3 Appellant had to furnish bank guarantees for the outstanding purchaser price of R2 975 000.00. The guarantees were to be furnished within thirty (30) days after confirmation by the plaintiff of the sale. Respondent confirmed the sale on 30 April 2008 and therefore appellants were supposed to deliver the said guarantee not later than 30 May 2008.

3.1.4 Appellants were to be liable for interest at the rate of 15% per annum on any amount of the outstanding purchase price for which guarantees were not delivered later than 30 May 2008 if transfer is delayed due to the actions or failure or the defendants.

3.5 Appellants only delivered a guarantee of R500 000.00 on 7 September 2008 and another guarantee of R2 986 750.00 on 13 October 2008.

Instead of signing transfer documents on or before 30 May 2008 the first appellant only signed on 23 October 2008.

3.6 The appellants' plea is that it was the duty of the respondent to inform them who the conveyancers were so that the appellants' bankers could forward the relevant guarantees to them, which respondent had not done by 30 May 2008.

Appellants contend that the agreement is silent on who the seller's conveyancers were.

3.7 First appellant maintains that it was only on 4 June 2008 that the respondent's conveyancers contacted his bank, informing him that they were attending to the transfer of the property.

3.8 Alternatively appellants pleaded that the respondent made it impossible for them to comply with the terms of the agreement which resulted into the delay.

3.9 The appellants also pleaded that the funds were available but the delay was caused by the continuous correspondence between the parties.

4. The appellant further contends that the respondent's introduction of Mr Freddie Odendaal (client of Mr Krause) caused a further delay as Mr Odendaal's mortgage bond over the farm had to be paid first (released) in order to enable Mr Krause to attend to the transfer of the said farm to the appellants.

4.1 The conveyancer, Mr Krause further caused a delay by advising the appellant to change from registering the property in the name of the trust into their individual capacities.

4.2 The appellant's state further that if the respondent felt aggrieved by the delay he could have cancelled the contract after 30 May 2008. The appellant maintained that the reason the respondent did not cancel the contract is because he (the respondent) was partly to blame. The respondent elected not cancel the contract and he was within his right; Segal v Mazz 1920 CPD 634 at 644-645.

5.1 The respondent contends that both banks used by appellants i.e. Standard and Absa Banks were made aware of Mr Krause as the conveyancer on 5 May 2008. Again on 4 June 2008 Mr Krause wrote a letter marked exhibit "MSM1" to first appellant's branch of Standard bank making him aware that as a conveyancer involved he needed bank guarantees for the sum of R2 975 000.00. To show that transfer would be immediate upon furnishing of guarantees the letter stated clearly that simultaneously there would be cancellation of bonds over the said farm. Furthermore the first appellant testified that changing registration of the farm from the trust to their personal names was easy to accomplish. On his own version there was no delay when changing from the buyers trust to their names

The first appellant does not deny knowledge of the letters dated 5 May 2008 which gives details of Mr Krause, he only says he can't remember. No explanation is given as to how the same letters or at least the information in those letters did not reach him. These letters were addressed to him c/o his bank and his lawyer(s), the bank and his lawyers had the letters in question. No explanation is given as to how the same letters or at least information in those letters could not reach him. The evidence before the court a quo reflects that the first appellant appreciated the fact that it was his duty to find out who the conveyancer was. The first appellant said Mr Jack Klaff notified him of Mr Krause when first appellant phoned on the 26 of May 2008but they gave first appellant 30 days to raise the money.

On the evidence before the court a quo it was clear that the first appellant had not furnished the guarantees by the 30 May 2008 as required by the contract. Without furnishing the guarantees the process of transfer of the farm could not commence. The first appellant thus caused the delay and the court a quo erred in finding that he was not part of the delay for the period including the months June, July and August 2008.

CONCLUSION

The respondent seems not to have envisaged that not naming the conveyancer's details in a contract would be taken advantage of. First appellant noted the omission before 30 May 2008 and he chose not to alert the respondent. Of importance is the fact that exhibit "MSM1" was by first appellant's admission known to him on 4 June 2008.lt provides details of the conveyancer Mr Krause. It is also remarkable that clause 8 of the agreement of sale provides that the conveyancer of the seller will attend to the registration of the farm. That clause is clear. The golden rule applicable to the interpretation of all contracts is to ascertain and follow the intention of the parties; and, if the contract itself, or any evidence admissible under the circumstances,

affords a definite indication of the meaning of the contracting parties, then it seems to me that a court should always give effect

to that meaning, Joubert v Enslin 1910 AD 6 .Only the names and particulars of the conveyancer are missing from the contract but a link with the seller is there. The names and contact details of the seller could be easily used to get to the conveyancer.To create a contractual bond between themselves the parties must communicate with each other Swart v Vosloo 1965 (1) SA (A) at 104H.

The appellants were clearly bound to provide the guarantee by 30/05/2013 ex contractu. The fact that the names of a conveyancer and his particulars contained in the contract is just a technicality. The law is not a game where one party is entitled to capitalise on a slight technicality.

The court a quo was thus incorrect in not finding that the first appellant's conduct did not cause the delay from the 30 May2008 until the 23 October 2008.On the first appellant's version he knew the names or details of the conveyance on the 4 June 2008.

In the circumstances I propose that the order made by the court a quo be set aside and it be substituted with the following:

Order

1. The counter appeal is upheld with costs.

2. The appellants are ordered to pay an amount of R178 499.99 which is interest at the rate of 15% per annum on the amount of R2 975 000.00 for the period 4 June 2008 up to 23 October 2008.

3. The appellants are further ordered to pay respondent's cost including the respondent's costs of counsel.

D. MOGOTSI

ACTING JUDGE OF

THE NORTH GAUTENG HIGH COURT

I agree and it is so ordered

S. POTERILL

Heard on: 12 November 2013

For the Appellants: Adv. RP Ndleve

Instructed by: Rampathla Inc. Attorneys

For the Respondent: Adv. N de V Duvenhage S.C.

Instructed by: Jacques Roets Attorneys

Date of Judgment: 5 December 2013