Mthetwa v Coetzee and Others (22709/2020) [2021] ZAGPPHC 494 (30 July 2021)

Mthetwa v Coetzee and Others (22709/2020) [2021] ZAGPPHC 494 (30 July 2021)

The court found that the suspensive conditions in the sale agreement were not fulfilled. The applicant did not obtain a mortgage bond for the required amount due to the property valuation falling short, and the inspection report revealed serious defects. The respondents failed to provide countervailing expert evidence or to raise a real, genuine or bona fide dispute of fact. The applicant's disclosure of the inspection report to the bank was reasonable and in accordance with the bank's requirements. The contract therefore lapsed, and the applicant is entitled to the return of the deposit. The respondents' reliance on technicalities and bare denials did not meet the threshold for a genuine...

Citation
[2021] ZAGPPHC 494
Parties
Applicant: Kate Nontokozo Mthethwa; Respondent: Neelia Margaretha Coetzee; Respondent: Far Property Sales (Pty) Ltd; Respondent: Margaret Birrell; Respondent: Vorster Incorporated Attorneys
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
30 July 2021
Case Number
22709/2020
Procedural Posture
Urgent Application / Final Judgment on Application for Refund of Deposit After Contract Lapsed Due to Non Fulfilment of Suspensive Conditions.
Outcome
Application granted. The contract lapsed due to non-fulfilment of suspensive conditions. The applicant is entitled to a refund of the deposit.
Judges
M.M.D. Lenyai
Legal Topics
Sale of Immovable Property, Suspensive Conditions, Refund of Deposit, Motion Proceedings, Voetstoots Clause
Land and Property Civil Procedure Sale of Immovable Property Suspensive Conditions Refund of Deposit Motion Proceedings Voetstoots Clause

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Parties

Kate Nontokozo Mthethwa

Applicant

Neelia Margaretha Coetzee

Respondent

Far Property Sales (Pty) Ltd

Respondent

Margaret Birrell

Respondent

Vorster Incorporated Attorneys

Respondent

Procedural Posture

Urgent Application / Final Judgment on Application for Refund of Deposit After Contract Lapsed Due to Non Fulfilment of Suspensive Conditions.

Legal Issues

  1. 1 Whether the suspensive conditions in the deed of sale were fulfilled.
  2. 2 Whether the contract lapsed due to non-fulfilment of suspensive conditions.
  3. 3 Whether the applicant is entitled to a refund of the deposit paid.

Ratio Decidendi

The court found that the suspensive conditions in the sale agreement were not fulfilled. The applicant did not obtain a mortgage bond for the required amount due to the property valuation falling short, and the inspection report revealed serious defects. The respondents failed to provide countervailing expert evidence or to raise a real, genuine or bona fide dispute of fact. The applicant's disclosure of the inspection report to the bank was reasonable and in accordance with the bank's requirements. The contract therefore lapsed, and the applicant is entitled to the return of the deposit. The respondents' reliance on technicalities and bare denials did not meet the threshold for a genuine...

Court Disposition

Application granted. The contract lapsed due to non-fulfilment of suspensive conditions. The applicant is entitled to a refund of the deposit.

Orders

  • The Offer to Purchase concluded by the parties on 1 October 2019 lapsed on 29 November 2019 due to non-fulfilment of the suspensive condition.
  • The respondents are ordered to pay the deposit amount of R277,100.00 jointly and severally, one paying the other to be absolved.