Naidoo and Another v Sanders and Another (D1696/2020) [2023] ZAKZDHC 21 (4 May 2023)

Naidoo and Another v Sanders and Another (D1696/2020) [2023] ZAKZDHC 21 (4 May 2023)

The court found that clause 3.4 of the sale agreement is a suspensive condition requiring municipal approval of building plans and occupation certificates. The first respondent, as the registered owner, is the party competent and obliged to obtain such approvals or authorise another to do so. Her reliance on the voetstoets clause and refusal to comply with the bank's requirements did not absolve her of this obligation. The applicants had secured the necessary bond guarantees and undertook to absorb the costs of repairs, removing any obstacle to transfer. The respondent's defences regarding vagueness and lack of obligation were rejected. The court granted condonation for the late filing of...

Citation
[2023] ZAKZDHC 21
Parties
Applicant: Cindy Naidoo; Applicant: Jeni Dharampal; Respondent: Estelle Claudia Sanders; Respondent: Sheriff of the Court, Pinetown
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
4 May 2023
Case Number
D1696/2020
Procedural Posture
Urgent Application / Order and Final Judgment
Outcome
Application granted. Condonation for late filing of replying affidavit is granted. The first respondent is ordered to comply with the sale agreement and facilitate transfer of the property. Costs awarded to applicants.
Judges
Chetty
Legal Topics
Specific Performance, Sale of Immovable Property, Suspensive Condition, Building Regulations, Condonation, Voetstoets Clause
Land and Property Civil Procedure Commercial and Corporate Specific Performance Sale of Immovable Property Suspensive Condition Building Regulations Condonation +1 more

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Parties

Cindy Naidoo

Applicant

Jeni Dharampal

Applicant

Estelle Claudia Sanders

Respondent

Sheriff of the Court, Pinetown

Respondent

Procedural Posture

Urgent Application / Order and Final Judgment

Legal Issues

  1. 1 Whether the first respondent is obliged to obtain municipal approval of building plans and occupation certificates as required by the sale agreement.
  2. 2 Whether clause 3.4 of the sale agreement constitutes a suspensive or resolutive condition and its effect on the enforceability of the contract.
  3. 3 Whether the applicants are entitled to specific performance compelling transfer of the property.

Ratio Decidendi

The court found that clause 3.4 of the sale agreement is a suspensive condition requiring municipal approval of building plans and occupation certificates. The first respondent, as the registered owner, is the party competent and obliged to obtain such approvals or authorise another to do so. Her reliance on the voetstoets clause and refusal to comply with the bank's requirements did not absolve her of this obligation. The applicants had secured the necessary bond guarantees and undertook to absorb the costs of repairs, removing any obstacle to transfer. The respondent's defences regarding vagueness and lack of obligation were rejected. The court granted condonation for the late filing of...

Court Disposition

Application granted. Condonation for late filing of replying affidavit is granted. The first respondent is ordered to comply with the sale agreement and facilitate transfer of the property. Costs awarded to applicants.

Orders

  • Condonation is granted in respect of the late filing of the applicant’s replying affidavit, with no order as to costs.
  • The first respondent is ordered to comply with, and perform all obligations as contained in the agreement of sale affixed to the founding affidavit marked as Annexure ‘CN2’, within 30 days of this order.