Rakau v Manqele and Another (36238/2007) [2008] ZAGPHC 60 (8 February 2008)

IN THE HIGH COURT OF

SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

DATE: 08/02/2008

CASE NO: 36238/2007

UNREPORTABLE

In the matter between:

ABRAM RAKAU Applicant

And

SARAH JOYCE MANQELE 1st Respondent

THE REGISTER OF DEEDS 2nd Respondent

JUDGMENT

LEDWABA, J

[1] The applicant is seeking, against the respondent for an order in the following terms:

i) THAT the deed number T165513/2006 issued to Manqele Joyce Sarah of Identity number 600030 8060 4083 granted to her in respect of ERF 861 Township Shoshanguve Registration Division JR province of Gauteng, (the property), be (cancelled) annulled.

(ii) That the aforesaid title deed under number T165513/2006 be awarded and or granted to the applicant.

(iii) That the Registrar of the deeds of Pretoria be directed to cancel the title deed against the 1st respondent and award it to the applicant.

[2] The following facts are common cause between the parties:

(i) On the 22nd March 2005 the first respondent entered into a deed of sale with Mr. Tumishi Alfred Nkomo and Mrs. Mabogeleku Angeline Nkomo (hereinafter referred to as the sellers), in terms whereof the sellers sold to her, the property subject to the terms of their agreement of sale which I will deal with in detail, for the sum of R 25 000.

(ii) First respondent paid the sellers R 6 500 and she was to pay the local municipality arrears on rates and taxes from the purchase price.

(iii) On the 24th July 2006 the sellers entered into a second deed of sale with the applicant in terms whereof they sold the same property to the applicant.

(iv) The property was registered in the first respondent's name on 8th December 2006.

[3] The applicant submitted, in his founding affidavit, that the agreement of sale between the sellers and the first respondent was cancelled because the first respondent failed to honour the agreement that was terminated in December 2005. He further alleged that the first respondent fraudulently registered the property knowing that she was not entitled to do so and that she also made a misrepresentation to the City of Tswane Metropolitan Municipality and the South African Revenue of Services to obtain a clearance certificate and a transfer duty certificate, respectively.

[4] I need to remark that the sellers who were not joined in the application, but their affidavits were annexed to the papers by applicant. The sellers allege in paragraphs 8 of their so called supplementary affidavits that they awaited further payment from the first respondent from 22nd March 2005 to December 2005 but received nothing. They further alleged that: '... we agreed to cancel the sale agreement, Joyce, was told and she said she would honour the said agreement'. I interpose to mention that it is not clear from the aforesaid allegation if the sellers agreed to cancel the agreement between themselves or with the respondent. The further allegation that the first respondent said 'she would honour the said agreement' creates an impression that the respondent could have said he would comply with the terms of their agreement.

[5] The first respondent in her answering affidavit denied that the sale agreement was cancelled. She further denied that when she obtained clearances certificate and when the transfer of the property into the name was registered, she knew about the deed of sale between applicant and the sellers.

[6] Mr. Mokase, on behalf of the applicant, argued vigorously that the agreement of sale between the sellers and the first respondent was void or voidable because the first respondent did not comply with the suspensive condition clause in the deed of sale. The said clause reads as follows:

‘10 SUSPENSIVE

CONDITIONS

The parties agree that agreement is subject to the suspensive condition that the Purchaser obtains a loan at a Bank for the amount of R n/a within 14 (Fourteen) days from date of signature of this agreement, failing which this agreement will lapse and be of no force or effect.’

[7] Because the amount of the loan is reflected as 'R n/la', which is generally regarded as 'not applicable', in my view, it means that the provisions of the suspensive condition are not enforceable and the suspensive condition should be regarded as being non­ existent.

[8] In the papers the sellers further allege they agreed that the first deed of sale was to be cancelled, whilst on the other hand, their legal representative argued the contract is void. The clause dealing with 'cancellation' in the first deed of sale reads as follows:

‘CANCELLATION

Should the PURCHASER fail to comply with any of the terms and conditions of this Agreement and remain in default for a period of 7 (seven) days after despatch per registered post of written notice requiring any default to be - remedied, the SELLER shall be entitled (in addition to and without prejudice to any the rights available at law) to cancel this Agreement forthwith or on account and retain as Rouwkoop or as a genume pre-estimate of damages or on account of and pending the actual damages suffered by the SELLER on consequence of such a breach, all the monies paid by the PURCHASER or enforce performance of the terms of this Agreement, and/or to take such other steps as are available in law.’

[9] There is no proof in the papers that a registered letter was sent to the first respondent requesting her to remedy her default.

[10] Mr Mokase tried to convince the court, but failed, that first respondent acted fraudulently and made some misrepresentation. First respondent alleged that she did not know about the second deed of sale. Furthermore, the applicant did not allege in his papers that the first respondent knew about same before the property was registered in her name.

[11] Mr. Mokase further argued vigorously, that the attorneys Hannes GOUWS & Partners Incorporated were not suppose to proceed with the transfer because the balance of the purchase price had not yet been paid. Clause 1 which deals with the purchase price reads as follows:

‘1. PURCHASE

PRICE

The Purchase Price is the sum of R25 000, 00 (TWENTY FIVE THOUSAND RAND) payable in cash against registration of transfer of the property which amount shall be secured by bank or other guarantees acceptable to the SELLER, payable at Pretoria free of exchange upon registration of transfer of the property and delivered to the SELLER within 60 (SIXTY) days of execution thereof'

[12] The first deed of sale clearly states that the balance of the purchase price is payable in cash against registration of transfer of the property. First respondent alleged that the balance has been paid into the trust account of the attorneys. Even if the papers do not state when it was paid there is no sufficient evidence to confirm that the balance was not paid before registration.

[13] The sellers do not dispute the signatures on the Power of Attorney to transfer and other preliminary documents. I may as well mention that their 'affidavits' were not commissioned when they signed. However, the applicant's case is not based on non commissioned affidavits.

[14] Applicant in my view has serious problems in this application. Firstly, generally before transfer of a property is effected the arrears on rates and taxes are paid by the seller unless the parties agreed otherwise. In this matter, applicant decided to pay for the arrears on rates and taxes even though the ‘agreement’ between him did not stipulate that. Secondly, applicant's legal representative could not explain why the sellers were not joined in the application. Thirdly, there are no sufficient facts that the relief sought in prayer 1 of the Notice of Motion and especially having regard to paragraph 3 of the report by the Registrar of Deeds on page 51 of the indexed papers.

[15] Having regard to the aforesaid and having considered arguments raised regarding costs, I make the following order:

(i) The application is dismissed;

(ii) Applicant is ordered to pay the costs, including the wasted costs occasioned by the postponement on 4 October 2007.

A.P. LEDWABA

JUDGE OF THE HIGH COURT

Date of hearing: 7 December 2007

Attorney for Plaintiff: M. Mokase

Instructed by: M. Mokase Attorneys

Counsel for First Respondent: Advocate Etienne Botha

Instructed by: Hannes Gouws & Partners Incorporated