Scholtz v Marloth Park Client and Business Accommodation CC and Others (A190/2013) [2014] ZAGPPHC 954 (27 November 2014)

Scholtz v Marloth Park Client and Business Accommodation CC and Others (A190/2013) [2014] ZAGPPHC 954 (27 November 2014)

The appeal succeeded because the first respondent failed to comply with the terms of the sale agreement, specifically by not paying the required deposit into a trust account and not providing guarantees for the balance of the purchase price. The conveyancer, Spamer, acted in conflict of interest and contravened section 78A of the Attorneys Act by holding funds in his personal account. The trial court exercised its discretion on a wrong principle by granting specific performance despite these breaches. The court found that specific performance would be unjust under the circumstances, and the application for specific performance was dismissed. Costs were awarded against the first...

Citation
[2014] ZAGPPHC 954
Parties
Appellant: David Joachim Jacobus Scholtz; Respondent: Marloth Park Client and Business Accommodation CC; Respondent: Verna Scholtz; Respondent: Registrar of Deeds Mpumalanga Province
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
27 November 2014
Case Number
A190/2013
Procedural Posture
Civil Appeal / Full Bench Appeal From Order for Specific Performance
Outcome
Appeal upheld; order for specific performance set aside; application dismissed; costs awarded against first respondent; conduct of conveyancer referred to Cape Law Society.
Judges
Bertelsmann, Kubushi, Modiba
Legal Topics
Specific Performance, Sale of Immovable Property, Conflict of Interest, Attorneys Act Compliance, Contractual Tender, Conveyancing Practice
Land and Property Civil Procedure Commercial and Corporate Specific Performance Sale of Immovable Property Conflict of Interest Attorneys Act Compliance Contractual Tender +1 more

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Parties

David Joachim Jacobus Scholtz

Appellant

Marloth Park Client and Business Accommodation CC

Respondent

Verna Scholtz

Respondent

Registrar of Deeds Mpumalanga Province

Respondent

Procedural Posture

Civil Appeal / Full Bench Appeal From Order for Specific Performance

Legal Issues

  1. 1 Whether a valid agreement for the sale of the property exists between the parties.
  2. 2 Whether the purported cancellation of the agreement by the appellant is valid.
  3. 3 Whether the court a quo exercised its discretion judiciously in granting specific performance to the first respondent.

Ratio Decidendi

The appeal succeeded because the first respondent failed to comply with the terms of the sale agreement, specifically by not paying the required deposit into a trust account and not providing guarantees for the balance of the purchase price. The conveyancer, Spamer, acted in conflict of interest and contravened section 78A of the Attorneys Act by holding funds in his personal account. The trial court exercised its discretion on a wrong principle by granting specific performance despite these breaches. The court found that specific performance would be unjust under the circumstances, and the application for specific performance was dismissed. Costs were awarded against the first...

Court Disposition

Appeal upheld; order for specific performance set aside; application dismissed; costs awarded against first respondent; conduct of conveyancer referred to Cape Law Society.

Orders

  • The order for specific performance granted by the court a quo is set aside and substituted with dismissal of the application.
  • The cost order granted by the court a quo is set aside and substituted with an order that the first respondent pay the costs in both courts on an attorney and client scale.