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IN THE HIGH COURT OF SOUTH AFRICA /ES

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 2558/2004

DATE: 29/10/2007

NOT REPORTABLE

IN THE MATTER BETWEEN:

ELBé JACOBUS BOTHA PLAINTIFF

AND

PETRUS JOHANNES SMUTS 1^ST DEFENDANT

HESTER ELIZABETH SMUTS 2^ND DEFENDANT

JUDGMENT

SERITI, J

This matter came to court by way of action.

In the particulars of claim the plaintiff alleges that on or about 14 0ctober 2003 at Pretoria, the plaintiff and the defendants concluded a written sales agreement of an immovable property, which written agreement was attached to the summons as annexure "A".

He further alleges that it was an express, alternatively silent, alternatively implied term of the agreement that:

(a) the plaintiff buys from the defendants an immovable property situated at 654 Jacob Street, Rietfontein, Pretoria;

(b) the purchase price is R230 000,00 which is payable by cash on registration;

(c) that the purchase price must be guaranteed by a bank, which guarantee must be delivered to the conveyancer within forty five days from the date of the signing of the sales agreement, etc.

The plaintiff has met all his obligations as contained in the sales agreement.

The defendants fail to sign the necessary documents required for the transfer of the immovable property.

0n 19 November 2003 the plaintiff's attorneys directed a letter to the defendant's attorneys wherein a demand was made that the defendants should comply with the terms of the agreement.

Despite demand, the defendants have refused or failed to sign the required documents for the transfer of the immovable property.

The plaintiff therefore prays for an order that:

1. the defendants be ordered to sign all documents, and do all that is necessary in terms of the agreement;

2. the sheriff of the district in which the property is situated be authorised to sign the necessary transfer documents if the defendants fail to do so within seven days from the date of the order;

3. costs of action and further or alternative relief.

In the plea, the defendants deny that the first defendant's names are Petrus Johannes Smuts, and states that his names are Petrus Jacobus Smuts.

The defendants further denied that they entered into a sales agreement of the relevant immovable property, and specifically pleaded that they did not have an intention to enter into a sales agreement of their immovable property.

In the alternative, they pleaded that if the court finds that they had the intention to enter into a sales agreement, when they signed the relevant sales agreement, certain portions of the sales agreement were not completed, namely:

(a) the sellers were not fully described;

(b) the buyer was not fully described;

(c) purchase price was not inserted;

(d) the immovable property was not described.

The defendant further pleaded that the sales agreement they signed is of no force and effect as the provisions of section 2 and 3 of Act 68 of 1981 were not complied with.

Further alternatively, the defendants pleaded that they were married in community of property and the sales agreement does not comply with the provisions of section 15(2) of the Matrimonial Property Act 88 of 1984, and consequently the sales agreement is of no force and effect.

The first witness to testify is Mr Elbè Jacobus Botha.

He testified that he signed the offer to purchase the immovable property and initialled the bottom part of each page, except the Aida covering letter.

He stays in KwaZulu Natal and he came to Pretoria on a Sunday to view the immovable property in question, and on Monday he signed the offer to purchase at the offices of Aida and his information was completed on the said offer to purchase.

When he went to view the property, he met Mr Smuts. He told Mr Smuts that he is the buyer of the property. Mr Smuts was not surprised and they discussed about the property. Mr Smuts asked him if he is interested to also buy a lawn mower.

There was no indication that Mr Smuts was not going to accept his offer.

Under cross-examination he said after signing the offer to purchase, he was not given a copy thereof. The agent that he dealt with is Ms Britz. The details appearing on the offer to purchase were completed by the agent.

He was not present when the offer was accepted by the defendants.

When he went to the property on Sunday after signing offer to purchase he found Mr Smuts alone. It appeared to him that nobody was staying at the property.

Next witness to testify is Mr Nico van Wyk.

He testified that during the year 2003 he worked for Aida, Pretoria East. The first defendant was married to the second defendant, his mother, for twenty five years. First and second defendants went to stay at an old age home because of their ill-health.

Prior to first and second defendants going to the old age home, members of the family met, decided that the defendants should go and stay at the old age home and also the financial implications thereof. It was also decided that the house of the defendants should be sold so that the defendants should be financially independent.

It was also decided that he should obtain offers for the purchase of the house from prospective buyers.

He gave instructions to Aida to put the house on sale. They received several offers from different people, including his eldest brother Willem Adriaan van Wyk.

Aida faxed him "0ffer to Purchase" signed by the plaintiff. The said "0ffer to Purchase" was attached to the bundle of documents and marked annexure "X1". The first page thereof is covering letter from Aida.

His brother made an offer of R215 000,00.

He advised the first defendant about the several offers and the first defendant accepted the offer made by the plaintiff through Aida. Both defendants signed the offer to purchase, thereafter he gave the signed "0ffer to Purchase" to Aida.

Initially, the first defendant advised him that the house should be sold for R180 000,00.

After the defendants went to stay at the old age home, he stayed in the house.

0n a certain day, when he came back from work, he found the first defendant at home. The latter told him that he wants to come back home and that he no longer wants to sell his house.

After few days, the two defendants left the old age home and came back home.

Under cross-examination he testified that his brother Willem Adriaan van Wyk made a written offer of R215 000,00. The said written offer is at his home in a file. He did not bring it along as he never thought that it might be required.

After the evidence mentioned in the previous paragraph, the plaintiff and defendant's counsel agreed that they will phone Mr Willem Adriaan van Wyk to ask him about his written offer, and the court adjourned.

When the hearing reassumed, the court was advised that Mr Willem Adriaan van Wyk said that he has never made a written offer.

Witness further testified that at that stage, he had been working for Aida for a year to two years in the Commercial Property section.

He was asked if he was going to receive commission for listing the property with Aida, and he said no. When counsel put it to him that according to Aida's policy, if an agent lists a property with it, the said agent is entitled to 10% of the commission to be received by Aida, and he then said that if that is the policy of Aida, he was going to receive the said commission.

He was referred to a letter from "0ns Tuis" old age home, which stated that the defendants were their residents from 8 September 2003 to 31 0ctober 2003 and it was put to him that before leaving the "0ns Tuis" the defendants had to give a months notice. He agreed to the proposition and said that they probably gave notice on 30 September 2003.

He further testified that the normal practice at Aida is that all the pages of the "0ffer to Purchase" must be initialled at the bottom thereof.

He was referred to the covering letter from Aida, to which the "0ffer to Purchase" was attached. The said covering letter has information about the purchaser and seller. The seller is described as "Petrus Johannes Smuts" and he conceded that the said names are not the names of the first defendant.

When the family gave him a mandate to sell the house, he was told to get the best price and the price offered by the plaintiff was the best price.

Counsel for the defendants pointed out to him that the offer made by the plaintiff was R230 000,00 and Aida was going to deduct R15 000,00 commission and the defendants would have received only R215 000,00 and he agreed.

It was further pointed out to him that the offer made by the plaintiff is not higher than the alleged offer made by his brother and he also agreed.

It was pointed out to him that when he approached the defendants to sign the "0ffer to Purchase" he omitted to get them to initial all the pages, and he said that it was not his duty to do so.

Next witness to testify is Mr Willem Adriaan van Wyk.

He testified that he is the eldest son of the second defendant and the first defendant is his step father.

He is aware that the defendants wanted to sell their property but the defendants never told them at which price the property should be sold.

During 0ctober 2003 he was not aware that the defendants want to leave the old age home.

He paid for the accommodation of the defendants at the old age home. He also paid for other associated expenses which came to a total amount of R11 473,50.

After the defendants left the old age home, he gave instructions to his attorneys to demand repayment of the amount of R11 473,50 from the defendants, as according to their arrangements, he was suppose to be repaid the amount of R11 473,50 from the proceeds of the sale of the house.

The matter between him and the defendants is now settled.

Under cross-examination he said he had a good relationship with his mother who is now deceased. He was repaid part of his money after the settlement was reached. He was interested to buy the house in question but at some stage Nico told him that the property was sold.

Plaintiff closed his case.

First defendant went into the witness box to testify.

He testified that he is 84 years old. He was married to the second defendant who died on 6 December 2004. He is the executor of the deceased's estate.

In 2003 his wife was sick and Riaan suggested that they should go to an old age home. Riaan told him that he will sell their house and he told Riaan to sell it for R270 000,00. He did not speak to Nico about selling their house.

They went to stay at the old age home, which was about half kilometre from his house. He transferred the telephone which was at his home to the old age home where they were staying.

He was dissatisfied about the manner in which his sick wife was treated by the staff at the old age home. He gave them a month's notice to leave the old age home. Thereafter he informed Riaan who was staying at his house at that stage, to vacate his house as they are coming back home. His wife was reluctant to go to the old age home.

He was referred to the "0ffer to Purchase" that they signed, and he said that he has seen it before but he does not know how they signed it.

He further testified that on a certain day, Nico came to them with a folded one page document and he requested them to sign it. He told them that the said document they signed will be used to find out from bank if a specific potential buyer of their home has money.

When he together with his wife signed the document, Nico did not tell them that what they are signing is an offer to purchase.

He was referred to the covering letter of Aida to which the "0ffer to Purchase" was attached, and he said that the names Petrus Johannes Smit appearing thereon are not his names. If the document was shown to them, he would have noticed that the said names are not his names.

He would not have sold his property for R230 000,00.

Whilst still at the old age home Francois came to see him, showed him the signed offer to purchase and advised him that his house is sold. Nico also came to the old age home to see him, and he almost assaulted Nico for selling their house behind their backs.

Prior to leaving the old age home, he gave the old age home a month's notice and he informed Nico about it. At that time Nico was staying at his (witnesses') house with a wife and a child.

Whilst at the old age home, he used to go to his house almost on a daily basis.

He further testified that early November 2003 he instructed his attorney to dispute the validity of the offer to purchase he allegedly signed. His attorneys wrote a letter to Aida on 4 November 2003.

Under cross-examination he said he met the plaintiff at his house and he did not tell him about a lawn mower, although they discussed certain structural defects of the house.

At the time he gave notice to vacate the old age home, he no longer wanted to sell his house.

He further testified that they left the old age home because of the bad treatment they received from the staff members of the old age home.

Next witness to testify is Mr Francois van der Bank. He testified that he is married to Yvonne, the daughter of the first defendant.

Riaan called a family meeting and suggested that the defendants should go to the old age home, and Yvonne was against the said suggestion. Riaan requested him to persaude Yvonne to agree to the said suggestion. Riaan further suggested that they should sell the defendants' house.

Riaan also suggested that he will sell the house and that other household items should also be sold. It was also agreed that before a sale is concluded by any person, the other family members should be informed.

Riaan said that he will carry the costs of the defendants at the old age home and once the house is sold, he will receive his expenses from the proceeds of the sale of the house.

The defendants did not want to go to the old age home, but they did not have an option.

He used to visit the defendants at the old age home and they were complaining about the treatment meted to them by the staff members of the old age home.

After the defendants gave notice to vacate the old age home, all the family members knew about it. Nico and Riaan also knew that the defendants gave notice to vacate the old age home.

He saw for the first time the offer to purchase just after the defendants left the old age home.

Prior to the defendants coming back home, Nico did not inform him about the offer to purchase. After Nico showed him the offer to purchase, he showed same to the defendants and they were surprised.

Under cross-examination he testified that all the family members knew that the defendants were ill treated at the old age home and they wanted to come back to their house.

The next witness to testify is Ms Aletta Britz. She testified that during 2003 she was employed as an estate agent by Aida. 0ne of her colleagues, Ms Swart, was dealing with the defendants' property. Ms Swart went on leave and she took over the file relating to the sale of the defendants' property.

She met the plaintiff at their offices on 13 0ctober 2003 and she completed the offer to purchase with him. All the pages were initialled by the plaintiff as it is the practice, and the plaintiff signed the last page thereof.

Nico, who was also employed by Aida listed the property. Nico was then entitled to 10% of the R15 000,00 commission which was going to go to Aida.

When he completed the offer to purchase, she telephoned Nico who told her about the purchase price and that Aida will receive R15 000,00 commission on the transaction.

She did not complete, on the offer to purchase, all the necessary details. Nico told her that he will complete the outstanding details.

She telefaxed the offer to purchase to Nico so that he can obtain the signature of the seller.

After few days she telephoned Nico to enquire if the offer to purchase was accepted by the seller. Nico told her that the seller no longer wants to sell, but he will wait for an appropriate moment to obtain the seller's signature and as soon as the offer to purchase is signed by the seller he will return it to her.

After receiving from Nico the offer to purchase signed by the defendants, she completed the names of the seller and other required information. She reflected the seller as Petrus Johannes Smuts.

Defendants closed their case.

During oral argument the plaintiff's counsel submitted that the first question to be determined is whether the defendants signed the offer to purchase or not.

She further submitted that the defendants signed the offer to purchase fully aware of what they were signing.

0n the other hand, the defendants' counsel submitted that the defendants signed the offer to purchase without the required animus contrahendi.

Mr Nico van Wyk when he testified he initially said that he was not going to derive any financial benefit from the sale of the house.

When it was put to him that the individual estate agents of Aida who lists a property to be sold are entitled to 10% of the commission to be paid to Aida, he said that if that is the practice of Aida to pay the individual estate agents 10% of Aida's commission, then it means that he was going to get a financial benefit from the sale of the house of the defendant.

Ms Britz testified that Nico was going to receive 10% of the R15 000,00 commission that was going to be payable to Aida, as that is the practice of Aida.

Mr Nico van Wyk further testified that his mandate was that the house should be sold to the highest bidder, but it is now known that the offer made by the plaintiff was not higher than the offer made by Mr Willem Adriaan van Wyk.

The offer to purchase was only signed at the last page and the other pages are not initialled by the defendants as required by the practice of Aida.

Furthermore, Mr Nico van Wyk testified that his brother also made a written offer, which written offer he left at home, but it later emerged that his brother did not make a written offer.

The defendant testified that when Nico came to them, he gave them only one document to sign.

My view is that the court cannot rely on the evidence of Mr Nico van Wyk. He is not a reliable witness.

The probabilities are that when Mr Nico van Wyk approached the defendants, he did not show them the entire document he received from Aida. If he did, the first defendant would, as he testified, have pointed out that his names are not Petrus Johannes Smuts, and furthermore all the pages would have been initialled by the defendants as required by the practice of Aida.

It is also not in dispute that the defendants gave notice to the old age home, around the end of September 2003 that they will be leaving the old age home by end of 0ctober 2003. That being the position, it is improbable that they will accept an offer to purchase their home on 14 0ctober 2003 when they are suppose to be returning home at end 0ctober 2003.

The abovementioned probabilities are strengthened further by the fact that on 4 November 2003 the defendants' attorneys wrote a letter on instructions of the defendants to Aida wherein they disputed that they knowingly signed an offer to purchase.

I find that the defendants, when they signed the offer to purchase, did not have the required animus contrahendi and consequently the purchase agreement is not binding on them.

The plaintiff has failed to prove his case.

The court therefore makes the following order:

1. Plaintiff's case is dismissed.

2. Plaintiff is ordered to pay the costs of the defendants on a party and party scale.

W L SERITI

JUDGE OF THE HIGH COURT

2558-2004

HEARD ON: 11 & 12 OCTOBER 2007

FOR THE PLAINTIFF: N JANSE VAN NIEUWENHUIZEN

INSTRUCTED BY: GEYSER ATTORNEYS

FOR THE DEFENDANTS: P J VERMEULEN

INSTRUCTED BY: E Y STUART INCORPORATED

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