Tlakula and Other v Tugh N.O and Others (A176/18) [2020] ZAGPPHC 724 (21 September 2020)

Tlakula and Other v Tugh N.O and Others (A176/18) [2020] ZAGPPHC 724 (21 September 2020)

The court held that the suspensive condition regarding bond finance in clause 12 of the main agreement was not a term of the contract, as no amount was inserted and the parties did not intend to rely on loan finance. The addendum did not introduce a new suspensive condition or require the loan to be obtained within a fixed period. The purchasers were entitled to pay the full purchase price in cash, which they did. The respondents' insistence on appointing their own conveyancer and receiving payment through their attorney was contrary to the written agreement, which expressly granted the purchasers the right to appoint the conveyancer. The delay in transfer was primarily caused by the...

Citation
[2020] ZAGPPHC 724
Parties
Appellant: DR X.W. Tlakula; Appellant: DR T.S. Nemutandani; Appellant: Registrar of Deeds, Pretoria; Appellant: Himal Tugh and Company; Appellant: ABSA Bank Ltd; Respondent: B. Tugh NO; Respondent: M.H. Tugh NO; Respondent: E.H. Tugh NO; Respondent: R.H. Tugh NO
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
21 September 2020
Case Number
A176/18
Procedural Posture
Civil Appeal / Appeal From Judgment and Order of the Court a Quo
Outcome
Appeal succeeds only in respect of the costs order; the remainder of the appeal is dismissed.
Judges
C.P. Rabie, W. Hughes, N. Khumalo
Legal Topics
Specific Performance, Sale of Immovable Property, Variation of Contract, Suspensive Condition, Costs Award
Land and Property Civil Procedure Specific Performance Sale of Immovable Property Variation of Contract Suspensive Condition Costs Award

Case Brief

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Parties

DR X.W. Tlakula

Appellant

DR T.S. Nemutandani

Appellant

Registrar of Deeds, Pretoria

Appellant

Himal Tugh and Company

Appellant

ABSA Bank Ltd

Appellant

B. Tugh NO

Respondent

M.H. Tugh NO

Respondent

E.H. Tugh NO

Respondent

R.H. Tugh NO

Respondent

Procedural Posture

Civil Appeal / Appeal From Judgment and Order of the Court a Quo

Legal Issues

  1. 1 Whether the sale agreement and addendum lapsed due to non-fulfilment of a suspensive condition regarding bond finance.
  2. 2 Whether the purchasers abandoned the sale agreement by delay or inaction.
  3. 3 Whether the sellers were entitled to insist on appointing their own conveyancer contrary to the written agreement.

Ratio Decidendi

The court held that the suspensive condition regarding bond finance in clause 12 of the main agreement was not a term of the contract, as no amount was inserted and the parties did not intend to rely on loan finance. The addendum did not introduce a new suspensive condition or require the loan to be obtained within a fixed period. The purchasers were entitled to pay the full purchase price in cash, which they did. The respondents' insistence on appointing their own conveyancer and receiving payment through their attorney was contrary to the written agreement, which expressly granted the purchasers the right to appoint the conveyancer. The delay in transfer was primarily caused by the...

Court Disposition

Appeal succeeds only in respect of the costs order; the remainder of the appeal is dismissed.

Orders

  • The order in paragraph 6 of the Notice of Motion is set aside and replaced with: 'That the First and Second Respondents pay the costs of this application on a party and party scale, jointly and severally, the one paying the other to be absolved.'
  • The appeal against the orders in paragraphs 1, 2, 3, 4 and 5 of the Notice of Motion is dismissed.