Viljoen v Njebe and Others (A5004/2020) [2021] ZAGPJHC 147 (18 May 2021)

Viljoen v Njebe and Others (A5004/2020) [2021] ZAGPJHC 147 (18 May 2021)

The court held that the contract of sale between Viljoen and the Njebes contained a clear suspensive condition requiring the purchasers to secure a mortgage bond of not less than R3,280,000 within 30 days of the agreement. The purchasers failed to fulfil this condition within the stipulated period, and the contract automatically lapsed and became of no force or effect. The subsequent granting of a lesser bond after the cut-off date could not revive the contract, nor could any waiver occur after the contract had lapsed. The unsigned addendum prepared by the transferring attorneys was ineffective, and no written waiver was provided as required by the Alienation of Land Act. The argument...

Citation
[2021] ZAGPJHC 147
Parties
Appellant: Johan Adriaan Viljoen; Respondent: Brandt Njebe; Respondent: Mapho Brenda Njebe; Respondent: Registrar of Deeds
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
18 May 2021
Case Number
A5004/2020
Procedural Posture
Civil Appeal / Appeal From Confirmation of Rule Nisi; Application for Condonation for Late Filing of Notice of Appeal
Outcome
Appeal upheld with costs; Rule Nisi discharged; Viljoen not bound by the lapsed contract; Registrar of Deeds free to effect transfer to new purchaser.
Judges
M Tsoka, MMP Mdalana-Mayisela, T Nichols
Legal Topics
Suspensive Condition, Contract of Sale, Alienation of Land Act, Interdict, Waiver of Contractual Rights
Land and Property Civil Procedure Suspensive Condition Contract of Sale Alienation of Land Act Interdict Waiver of Contractual Rights

Case Brief

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Parties

Johan Adriaan Viljoen

Appellant

Brandt Njebe

Respondent

Mapho Brenda Njebe

Respondent

Registrar of Deeds

Respondent

Procedural Posture

Civil Appeal / Appeal From Confirmation of Rule Nisi; Application for Condonation for Late Filing of Notice of Appeal

Legal Issues

  1. 1 Whether the contract of sale of immovable property lapsed due to non-fulfilment of the suspensive condition by the purchasers.
  2. 2 Whether the purchasers could waive the suspensive condition after the contract had lapsed.
  3. 3 Whether the appellant was bound by the terms of the lapsed contract.

Ratio Decidendi

The court held that the contract of sale between Viljoen and the Njebes contained a clear suspensive condition requiring the purchasers to secure a mortgage bond of not less than R3,280,000 within 30 days of the agreement. The purchasers failed to fulfil this condition within the stipulated period, and the contract automatically lapsed and became of no force or effect. The subsequent granting of a lesser bond after the cut-off date could not revive the contract, nor could any waiver occur after the contract had lapsed. The unsigned addendum prepared by the transferring attorneys was ineffective, and no written waiver was provided as required by the Alienation of Land Act. The argument...

Court Disposition

Appeal upheld with costs; Rule Nisi discharged; Viljoen not bound by the lapsed contract; Registrar of Deeds free to effect transfer to new purchaser.

Orders

  • The appeal is upheld with costs.
  • The Rule Nisi confirmed by the court below is set aside and replaced with: