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/SG

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

DATE: 24/08/2007

CASE NO: 10635/2006

UNREPORTABLE

In the matter between:

ABRAHAM JOHANNES BRINK BURGER APPLICANT

And

MARIA PETRONELLA QUINN RESPONDENT

JUDGMENT

SERITI, J

1. Introduction

This matter came to court by way of motion.

In the notice of motion the applicant is praying for an order in the following terms:

(a) That the respondent be compelled to sign within seven days of the granting of this order all necessary documents to facilitate the transfer of an immovable property situated at 108 Venter Street, Capital Park, into the name of the applicant.

(b) That if the respondent fails and/or refuses to sign the said documents on the request of the applicant or his conveyancer:

(i) the sheriff of this court or his authorised representative be authorised to sign the said documents on behalf of the respondent.

2. Founding Affidavit

It was attested to by Mr Abraham Johannes Brink Burger.

He alleges that on 28 September 2005 he entered into a written sales agreement of immovable property situated at 108 Capital Park with the respondent. They were both acting in their personal capacities. He referred to the sales agreement attached to the founding affidavit as annexure A.

He further alleges that he proceeded to secure a mortgage bond over his property in order to make provision for the paying of the purchase price of the immovable property in question, which funds are available for payment at the time the property is transferred into his name.

An amount of R100 000.00 was deposited by him in his attorney’s trust account to cover transfer costs, cancellation of the bond over the property in question, etcetera. He instructed his attorney to attend to the transfer of the property into his name.

During January 2006 his attorney contacted the respondent and requested her to provide him with the title deed and the figure of the outstanding balance on her bond, so that he can proceed with the transfer of the property. Respondent responded by saying that she regards the sale agreement as cancelled because of the expiry of time.

The agreement does not specify within which period the purchase price should be secured.

On 24 January 2006 his attorney addressed a letter to the respondent wherein he pointed out to the respondent that the agreement has no time limits within which any act should be performed by the applicant and in any event, the applicant has secured all the necessary funds within a reasonable period.

He further alleges that he was never placed in terms by the respondent.

The respondent’s behaviour amounts to repudiation of the agreement which repudiation he does not accept.

His attorney also requested the respondent to come to his offices to sign all the relevant documents, failing which the court will be approached for necessary relief.

After obtaining legal advice, the respondent telephoned his attorney on 15 February 2006 and advised him that she has obtained legal opinion and that they can proceed to acquire cancellation figures of the bond and the outstanding amount due to the local authority.

On 24 February 2006 his attorney obtained information mentioned in the previous paragraph.

On 28 February 2006 his attorney telephoned the respondent and requested her to come and sign the transfer documents and she refused.

A confirmatory affidavit attested to by his attorney was attached.

3. Answering Affidavit

It was attested to by the respondent. She alleges that during September 2005 she wanted to buy an immovable property not far from her house.

In order to buy the said property, she had to sell the property where she was staying, and at that period the applicant approached her. He was aware of the fact that her purchasing of the immovable property referred to above was depended on her selling the property where she was staying.

Applicant approached her with an offer to purchase which offer resulted in the sales agreement attached to the founding affidavit as annexure A.

It was a specific term of the agreement attached as annexure A that the applicant will secure a loan within fourteen days of the date of signing the purchase agreement and the said term appears on clause 12 of the agreement.

It was their intention that the loan or guarantee should be secured within a period of fourteen days.

On several occasions, after signing of the purchase agreement she attempted to contact the applicant without success. It became clear to her that the applicant did not succeed to secure the necessary funding. She attempted on several occasions with the assistance of Mr Cornelius Pieterse and Ms Janine Klaushoffer to contact the applicant in order to finalise the sale without success.

As a result of the failure of the applicant to secure, timeously the necessary guarantee, or funds she was forced to cancel the agreement in terms of which she was going to buy a property which was situated not far from her house.

At the time of signing of the purchase agreement, together with the applicant they were not certain about the transfer costs and other related costs, and consequently the amount of the loan the applicant should apply for was not completed.

The applicant did not delete clause 12 of the sales agreement which fact indicates that the said clause 12 is part of the sales agreement.

Failure of the applicant to deliver any guarantees to her nor to indicate to her that he has applied for a loan, forced her to come to the conclusion that the applicant’s application for a loan was not successful.

Even if she wanted to proceed with the sale, she cannot sign any transfer documents unless she is certain that the necessary guarantees are in place.

She denies that she gave permission to anybody to obtain certificate of outstanding balance on her bond nor from the local authority.

Confirmatory affidavits of Mr Cornelius Pieterse and Ms Janine Klaushoffer were attached to the answering affidavit.

4. Replying Affidavit

It was attested to by the applicant. He alleges that he was aware of the fact that the respondent wanted to buy another immovable property, but he was not aware that it was necessary for the respondent to sell the property which forms the subject of the current dispute prior to her buying the new immovable property.

He denies that in terms of their purchase agreement he should have secured the guarantee or funds within fourteen days from date of signature of the purchase agreement.

He referred to a letter dated 24 August 2006 from Standard Bank, wherein the bank confirms that on 7 September 2005 he applied for further advance on his home loan account and same was approved on 30 September 2005.

He further alleges that if the court finds that clause 12 of the agreement is applicable then he complied with same as his application for further advance was approved on 30 September 2005, which is two days after the signing of the purchase agreement.

Clause 12 of the agreement is only to his benefit and the respondent should have made a demand as provided for in clause 11 of the purchase agreement.

He further alleges that the respondent telephoned his attorney on 15 February 2006 and advised him that they should proceed to obtain the outstanding balances from the bank and local authority, and he referred to the confirmatory affidavit of his attorney.

5. Findings

It is common cause between the parties that at the time of conclusion of the purchase agreement under consideration the respondent wanted to buy another immovable property in the same vicinity. It is also common cause between the parties that the purchase agreement was signed on 28 September 2005.

In his oral argument, the applicant’s counsel correctly so, submitted that the first issue to be considered is whether clause 12 of the agreement is binding on the parties.

Clause 12 of the purchase agreement reads as follows:

“12. MORTGAGE BOND

12.1 This Agreement is subject to the suspensive condition that a loan of R… secured by a Mortgage Bond to be registered over the property is obtained by the Purchaser or the Seller on his behalf on the normal terms and conditions of any Registered Commercial Bank within a period of 14 (fourteen) days from the last date of signature hereof or such extended period as the parties may agree to in writing.

12.2 In the event of the aforesaid Bond not being granted within the period stipulated in clause 12.1 above alternatively within such extended time period as the parties may have agreed to in writing then and in such event this Agreement shall lapse and shall have no force and effect and the Seller shall be obliged to refund to the Purchaser together with interest all monies paid by the Purchaser hereunder in reduction of the purchase price.”

The applicant’s counsel further submitted that the amount of the loan is not completed or filled in clause 12 because the respondent knew that the applicant will obtain funds from somewhere else.

The respondent in the answering affidavit stated that the applicant gave her the purchase agreement to sign after he, (the applicant) completed by free hand other clauses in the agreement. The amount of the loan was not filled in as the applicant was going to obtain other figures prior to filling in the amount of the loan. The applicant was not certain how much funding he will require from the commercial institutions. At that time, they were both not certain about the transfer costs and other related costs.

On the other hand, the applicant alleges that, as demonstrated in a letter from Standard Bank that on 7 September 2005 he had already applied for a further advance on his existing home loan, and the said facility was approved on 30 September 2005.

Unfortunately the letter from Standard Bank referred to in the previous paragraph does not indicate the extent of the further facility that was approved, nor does the applicant shed any light on that point.

If the parties wanted clause 12 of the agreement not to be applicable, the applicant, who brought the purchase agreement to the respondent would have easily deleted or scratched out the said clause.

Clause 20, which contains special conditions was completed by free hand and the applicant alleges that that was done by the applicant.

One of the provisions of clause 20 states that the sale is subject to bank valuation and the granting of a loan.

This fact, reinforces the allegation made by the respondent that the parties intended clause 12 to be applicable and that the loan amount was not filled in as the parties did not know the additional costs like transfer costs, etcetera.

The version of the respondent is the more probable version. The version of the applicant is improbable. If he had already applied for additional facility on his home loan account, he could have easily stated so in the agreement and deleted clause 12.1 of the agreement.

Counsel for the applicant submitted that clause 12 of the agreement should be ignored but could not provide authority for the said proposition.

In Sassoon Confirming and Acceptance Company (Pty) Ltd v Barclays National Bank Ltd 1974 1 SA 641 at 646B JANSEN JA said the following:

“The first step in construing a contract is to determine the ordinary grammatical meaning of the words used by the parties. (Jines v Anglo African Shipping Co (1936) Ltd 1972 2 SA 827 (AD) at p 834E).”

In Schmidt v Dwyer 1959 3 SA 896 (CPD) 899A, VAN WYK J said:

“The primary object of a deed of sale is to record the terms of a contract between the parties, and it follows that any statement in such a document prima facie constitutes a term of the contract unless it appears from the contract itself or other admissible evidence that the parties did not so intend.”

Some meaning must be attributed to clause 12 of the purchase agreement. My view is that clause 12 of the purchase agreement is applicable to the purchase agreement.

The amount of the loan that the purchaser is supposed to obtain is not filled.

The respondent’s allegations is that the amount of the loan was going to be filled later. The purchaser, who brought the purchase agreement to her for signing was going to determine from his attorney who was going to attend to the transfer, the additional costs prior to filling in the amount of the loan.

The above explanation by the respondent is more probable than the explanation of the applicant.

Clause 11 deals with steps that the seller can take in case of default on the part of the purchaser. Clause 11 will only apply if the agreement is still in existence. Clause 12 stipulates that if the purchaser fails to secure a loan within fourteen days from date of signature of the agreement, the agreement shall lapse and shall have no force and effect.

There is no evidence on the papers that the applicant obtained a loan or secured a mortgage bond to be registered over the property within fourteen days from 28 September 2005.

Annexure F that is the letter from Standard Bank, does not assist the applicant. There is no indication of the extent of the facility that was approved. If the facility related to the purchase agreement in question, one would have expected the applicant to have stated that fact in the purchase agreement rather than to leave clause 12 as it stands.

The applicant’s counsel further submitted that clause 12 was only to the benefit of the applicant.

The said submission cannot be upheld. The facts of this case clearly indicates that the said clause was necessary for the protection of both parties. There is nothing in the agreement which suggests that the respondent cannot rely on the said clause.

The respondent, who at the relevant time wanted to purchase another property, was entitled to rely on the protection of clause 12 in case the purchaser fails to obtain necessary funds within the stipulated period.

My view is that the applicant failed to comply with clause 12 which is an integral part of the purchase agreement.

There is no explanation from the applicant why his attorney contacted the respondent only in January 2006 if the funding was in place as early as 30 September 2007.

The probabilities are that the applicant secured funding at a much later stage and at that time the purchase agreement had already lapsed.

My opinion is that the applicant has failed to make out a case and he is not entitled to the order as prayed for in the notice of motion.

The court therefore makes the following order:

1. The application is dismissed.

2. Applicant is ordered to pay the costs of the respondent on a party and party scale.

W L SERITI

JUDGE OF THE HIGH COURT

10635/2006

Heard on: 15 August 2007

For the Applicant: Adv JPF de Klerk

Instructed by: Riaan du Plessis Attorneys, Pretoria

For the Respondent: Adv Z Schoeman

Instructed by: Voster du Plessis Attorneys, Pretoria

Date of Judgment: 24/08/2007

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