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IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

Case No.: 07/7248

Date:19/09/2007

In the matter between:

MAGUDU GAME COMPANY (PTY) LIMITED.........................................Applicant

and

ROLAND NOEL BOUWER..................................................................Respondent

PA MEYER, AJ

[1] The applicant applies for specific performance of a written agreement of sale in terms whereof certain immovable properties were sold by the respondent to the applicant at a purchase price of R1, 951, 105.00, which purchase consideration includes game to the value of R572, 605.00 (“the deed of sale”). The purchase price is payable in cash against registration of transfer.

[2] Adv. G.C. Pretorius SC, who appeared for the respondent, has argued in limine that the allegations contained in the applicant’s founding affidavit are insufficient to support the relief claimed for in the notice of motion since the applicant has failed to tender its performance in terms of the deed of sale. Adv. J. Both, who together with Adv. A.P. den Hartog appeared for the applicant, submitted that by raising the point in limine the respondent was seeking to introduce a new defence, which was not raised in the answering affidavit, and, had such issue been raised in the answering affidavit, the applicant would have had an opportunity in reply to explain why there is no tender and why there is no necessity for a tender in the circumstances of this case. The applicant accordingly requested a postponement of the hearing in order to supplement its papers. I refused such request for reasons alluded to hereinafter.

[3] The approach to be followed in the determination of the validity of such points in limine has been referred to in many decided cases. One such case is Bowman NO v De Souza Roldao 1988 (4) SA 326 (T), wherein Kirk-Cohen J, at 327 G – J, formulated the principles and approach as follows:

“What should be set out in the founding affidavit and the particularity required has been dealt with in a number of cases; see, for example, Joseph and Jeans v Spitz and Others 1931 WLD 48; Victor v Victor 1938 WLD 16 at 17 and Titty's Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and Others 1974 (4) SA 362 (T) at 369B. Each case will depend on its own facts. The correct approach is set out in the Titty's Bar case supra as follows:

'It lies, of course, in the discretion of the Court in each particular case to decide whether the applicant's founding affidavit contains sufficient allegations for the establishment of his case. Courts do not normally countenance a mere skeleton of a case in the founding affidavit, which skeleton is then sought to be covered in flesh in the replying affidavit.'

This type of objection must be considered on the basis of an exception to a declaration or a combined summons. The relevant considerations are:

(a) the founding affidavit alone is to be taken into account;

(b) the allegations in the founding affidavit must be accepted as established facts;

(c) are these allegations, if proved, sufficient to warrant a finding in favour of the applicant?”

[4] A court has a discretion to allow an applicant to supplement its papers in appropriate circumstances [see: Hubby’s Investments (Pty) Ltd v Lifetime Properties (Pty) Ltd 1998 (1) SA 295 (WLD) at p 298 A – B]. Counsel for both parties were ad idem, at least insofar as the dispute relating to the validity of the resolution that allegedly authorised Mr. Greeff to have concluded the written agreement of sale on behalf of the applicant is concerned, that there are disputed factual issues which are not capable of resolution on the papers. If I were to exercise my discretion favourably to the applicant and allow it an opportunity to supplement its papers, it will merely result in further unnecessary costs being incurred since the application will remain destined to be referred to trial or to be dismissed with costs depending on whether the disputes of fact were reasonably foreseeable. I accordingly refused a postponement to enable the applicant the opportunity to supplement its papers.

[5] The preliminary objection raised by Adv. Pretorius SC is that the applicant’s application is fatally defective since the applicant does not tender payment of the purchase price nor does it allege that it furnished an appropriate guarantee. Mr Both submitted that the deed of sale forms part of a larger sale of shares agreement that had been concluded between the applicant, the Magudu Game Reserve and the respondent, which agreement was thereafter recorded in writing and subsequently amended at a meeting of shareholders (“the sale of shares agreement”). The delivery of the shares has been tendered to the applicant in accordance with the sale of shares agreement.

[6] Even if the allegations in the founding affidavit are accepted as established facts as they should be for the purpose of determining the preliminary objection, and it is accepted that the deed of sale was concluded to facilitate transfer of the property into the name of the applicant pursuant to the terms of the sale of shares agreement, then it is clear that the provisions of the deed of sale are in conflict with the terms of the sale of shares agreement. The applicant, however, relies on the deed of sale in the relief it seeks against the respondent and it is the terms of the deed of sale which it seeks to enforce. The applicant does not seek the rectification of the deed of sale nor does it make out a case therefore in its founding papers. The claim for transfer of the properties is a claim for specific performance of the deed of sale and the applicant must accordingly allege and prove tender of payment against delivery [Robinson v Hay 1930 AD 444 at 450; Crispette & Candy Co Ltd v Oscar Michaelis NO 1947 (4) SA 521 (A) at 537; SA Cooling Services (Pty) Ltd v Church Council of the Full Gospel Tabernacle 1955 (3) SA 541 (D&CLD) at 544A – F]. There is no such tender of payment against delivery in the founding affidavit and the respondent’s point in limine is accordingly upheld.

[7] But even if I am wrong in my finding on the preliminary objection, I would in any event have dismissed the application with costs. I am of the view that the disputes of fact which have arisen are not capable of resolution on the papers. This was also conceded by Adv. Both, but he submitted that the matter should be referred to trial. The applicant, in my view, should have realised when it launched the present application that a serious dispute of fact was bound to develop [see: Room Hire Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (TPD) at p 1162. In 2006, the applicant applied for similar relief under case number 06/18503 (“the previous application”). The applicant conceded the previous application on the basis that the deponent to the founding affidavit, Mr. Greeff, was not authorised to act on behalf of the applicant. The defences raised in the previous application were essentially those raised in the present application, and the applicant should reasonably have foreseen that the respondent would again take issue with the validity of the deed of sale on the grounds of inter alia certain misrepresentations allegedly made by Mr. Greeff and the lack of authority on the part of Mr. Greeff to have concluded the deed of sale on behalf of the applicant. While Adv. Both is correct in his submission that the dispute relating to the respondent’s signature on the resolution did not arise previously, such issue is not the only issue relating to Mr. Greeff’s disputed authority but is additional to those raised before.

[8] In the result the following order is made:

The application is dismissed with costs, including the costs of a senior counsel.

P.A. MEYER AJ

ACTING JUDGE OF THE HIGH COURT

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