---

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG DIVISION, PRETORIA

 

(1)     NOT REPORTABLE

(2)     NOT OF INTEREST TO OTHER JUDGES

(3)     REVISED.

CASE NO: 53673/2012

3/8/2018

 

In the matter between:-

 

CORNELIUS GABRIEL VOLSCHENK                                          Plaintiff/Excipient

 

and

 

JUDITH LAMBRECHTS N.O.                                                         First Defendant/Respondent

 JUDITH LAMBRECHTS                                                                 Second Defendant/Respondent

JUDGMENT

CRUTCHFIELD AJ:

[1]          The plaintiff excepted to the defendant's amended counterclaim on the basis that it was vague and embarrassing alternatively lacked averments necessary to sustain a cause of action. The exception raised six causes of complaint, the essence of which was the following:

1.1     Whether the defendants properly and adequately pleaded:

1.1.1         Their entitlement to cancel the Deed of sale;

1.1.2         That the Deed of sale was properly and lawfully cancelled;

1.1.3         A tender of restitution or that they should be excused from making restitution.

 

[2]          The excipient argued matters not raised in the exception and declined to argue certain grounds pleaded in the exception. As a result, the headings in this judgment are for convenience and do not accord with the headings in the exception.

[3]          The excipient claimed that the exception be upheld with costs and the counterclaim struck out with costs accordingly.

[4]          The defendants opposed the exception. Subsequently, the defendants attended to the indexing and pagination of the papers, filed heads of argument and enrolled the matter for hearing. The excipient's heads of argument were prolix and delivered out of time Given that the excipient attempted to explain the delay by way of an affidavit, I accepted the heads of argument, allowed the defendants to furnish deliver supplementary heads and heard the matter accordingly.

[5]          The background facts of the matter were instructive:

5.1        The plaintiff issued summons on 13 September 2012 claiming an order that the first and second defendants take the necessary steps required to transfer a certain immovable property to the plaintiff.

5.2        The defendants filed a plea and counterclaim to which the plaintiff delivered a 'special plea of restitution' and pleaded to the merits of the counterclaim.

5.3        The defendants filed a notice of intention to amend their plea and counterclaim to which the plaintiff objected.

5.4        The defendants' consequential application for leave to amend was opposed by the plaintiffs, argued on 8 December 2016 and judgment granted in favour of the defendants' application. The defendants effected the amendment accordingly.

5.5        Thereafter, the plaintiff raised the exception to the amended counterclaim argued before me.

 

[6]          The defendants denied any obligation to effect transfer of the immovable property in that the plaintiff, the purchaser in terms of the Deed of Sale (the 'Deed') concluded between the parties in respect of the immovable property, allegedly failed to pay the full purchase consideration. The defendants cancelled the sale pursuant to the plaintiffs alleged material breach of the Deed.

[7]          Clause 6 of the Annexure to the Deed ('Annexure 'A") provided that in the event that the purchaser failed to make any payment punctually on due date, the seller was obliged to dispatch a written notice by registered post addressed to the purchaser's chosen domicilium citandi et executandi, demanding such payment within thirty days, failing which the seller would become entitled without any further notice:

7.1        To claim immediate payment of the full purchase price or the balance thereof payable in terms of the agreement; or alternatively

7.2        To cancel the sale.

 

[8]          In the light of the plaintiffs persistent non-payment subsequent to the defendants' notice of demand for payment dated 23 May 2011, annexure B to the amended counterclaim, (the 'demand'), the defendants cancelled the sale.

 

The first complaint

[10]      The excipient's complaint was premised on the allegation that the demand did not comply with the provisions of the lex commissoria, clause 6 of Annexure 'A', ('clause 6'). Furthermore, absent strict compliance with the lex commissoria, the defendants were obliged to plead that their decision to cancel the Deed was brought to the mind of the excipient,[1] which the defendants failed to do.

[11]      The excipient alleged that the demand did not comply with the provisions of clause 6 in that the demand was not addressed to the excipient's chosen domicilium citandi et executandi. Nor did the demand refer to it being sent by way of registered post. Hence, the defendants ought to have pleaded that the demand came to the mind of the excipient,[2] which the defendants did not do.

[12]      The defendants pleaded in terms of the amended counterclaim, however, that the demand was forwarded in terms of Annexure 'A', to the plaintiffs chosen domicilium citandi et executandi via registered post, alternatively was delivered by hand at the address stated on the demand, further alternatively was received timeously by the plaintiff notwithstanding that it was not correctly addressed and/or dispatched to the plaintiff’s domicilium citandi et executandi.

[13]      The defendants argued that the excipient confused the facta probanda with the facta probantia and that the sole issue at the exception stage, was whether the defendants pleaded the facta probanda necessary to sustain the cause of action and not whether those facta probanda were capable of proof at trial.

[14]      Furthermore, the defendants argued, correctly in my view, that they were not required at the exception stage, to show that the address to which the notice was dispatched was the correct address in terms of the excipient's chosen domicilium citandi et executandi.

[15]      That is an issue to be determined at trial once the excipient has pleaded to the defendant's averments.

[16]       The defendant's pleading that the demand was sent to the chosen domicilium citandi et executandi by way of registered mail was sufficient, in my view, to sustain the defendant's cause of action. The particulars of the address utilised or whether or not that address correctly reflected the chosen domicilium citandi et executandi are matters that require proof by way of oral evidence. Accordingly, they are to be determined at trial and not by way of exception.

[17]       Stated differently, the defendants were not obliged to plead the particularity of the address to which the demand was remitted. That detail does not form part of the facta probanda but comprises the facta probantia to be proved at trial by way of evidence.

[18]       As to the excipient's argument that the defendants were obliged to plead that the demand was brought 'to the mind' of the excipient[3] in order for the demand to be effective in terms of clause 6 of Annexure 'A', and, that the excipient's mere receipt of the demand was insufficient,[4] the requirement amounted to the demand having to be communicated to the excipient.

[19]       In Miller[5] the address of the purchaser to which all notices were to be sent was left blank in the clause provided for that purpose. The registered letters demanding performance, failure of which would give rise to cancellation of the agreement, were returned marked 'unclaimed'. The court referred to Swart[6] and relied upon the principle that absent an agreement to the contrary, a party to a contract who exercised his right to cancel had to convey that decision to the mind of the other party and cancellation did not take place until that occured.

[20]      The decision in Swart[7] was premised upon the specific wording of the relevant clause in that matter, being that the seller 'must declare' his intention to cancel the contract, which the court interpreted as meaning 'declare to the lessee'. Contrary thereto, clause 6 provided that the demand be addressed to the purchaser's chosen domicilium, compliance with which was duly pleaded by the defendants.

[21]      Furthermore, Wessels JA was quoted in Sebola,[8] in the following terms:

 

'... our law requires a party who elects to exercise a right of cancellation to notify the defaulting party of his decision to terminate the contract. It is, furthermore, implicit in those judgments that, if a party relies upon intimation contained in a legal process, such intimation operates to terminate the contract if it is brought to the notice of a defaulting party by the actual service upon him of the process embodying the intimation.'

 

[22]      Thus, the cases[9] relied upon by the excipient can all be understood, within the context of the respective facts of each, in terms of the long standing principle that the demand became effective when it was communicated to the excipient or brought to his attention. The same principle applied to the defendants' election to cancel the Deed.

[23]      Accordingly, the defendant's pleading that the demand was sent by way of registered mail to the chosen domicilium citandi et executandi of the excipient, alternatively was delivered by hand at the address stated on the notice, further alternatively was received timeously by the plaintiff notwithstanding that it was not correctly addressed and I or dispatched to the excipient's chosen domicilium, was sufficient in terms of Annexure 'A' for the purposes of the alleged requirement.

[24]      Thus, these complaints were devoid of merit.

 

The second complaint

[25]       The second complaint argued by the excipient was not pleaded in the exception but raised in terms of the excipient's heads of argument.

[26]       The excipient argued that the demand did not refer adequately to clause 6 of Annexure 'A', which allegedly required that the demand claim 'such payment' not punctually made by the excipient. Hence, the excipient contended that the demand should have required that payment of the respective arrear instalments be brought up to date, rather than payment of the full amount of the unpaid purchase price as a lump sum.

[27]       The significance of the alleged omission lay in the fact that the defendant's right to claim payment of the full outstanding balance of the purchase price arose upon non­compliance with the demand, in terms of clauses 6.2 and 6.2.1 of Annexure 'A'.

[28]       Hence, the excipient argued that the demand did not comply with clause 6 and the defendants were not entitled to cancel the Deed.

[29]       However, the Afrikaans version of the contents of Annexure 'A' was specifically incorporated into the Deed. The Afrikaans version of clause 6 differed from its English counterpart. The relevant provision of clause 6 provided the following:

'6.        Kansellasieklousule

 

Indien die KOPER/S nalaat of in gebreke bly om:

 

6.1     enige betalings stiptelik op die vervaldag te maak; OF

 

6.2     enige ander bepaling van hierdie ooreenkoms stiptelik uit te voer en in sodanige versuim volhard 30 (DERTIG) dae na datum van afsending deur die VERKOPER/S van 'n skriftelike aanmaning gerig aan die KOPER/S se hierin gekose domicilium per aangetekende pos waarin die VERKOPER/S voldoening eis, mag die VERKOPER/S sonder enige verdere kennisgewing:

 

6.2.1        die voile koopprys (of balans daarvan) betaalbaar ingevolge hiervan eis.

 

OF alternatiewelik

6.2.2          hierdie kontrak kanselleer... .'

 

[30]       Accordingly, the defendants complied with the Afrikaans version of clause 6 that required 'voldoening', being 'compliance' or 'satisfaction' in respect of any payments not punctually made on due date. The requirement of the English version of clause 6, that demand be made for 'such payment' not punctually made on due date, was not relevant

in the circumstances.

[31]       In addition, the excipient contended that the notice of cancellation was not dispatched by registered post to the excipient's chosen domicilium citandi et executandi in terms of clause 6 of Annexure 'A', and the defendants failed to plead that the notice of cancellation came to the mind of the excipient. Further, the defendants' election to cancel was not effective until the notice came to the excipient's attention, (notwithstanding that it was received by the excipient). [10]

[32]       Clause 6 provided that the demand be dispatched to the purchaser's chosen domicilium citandi et executandi by way of registered post, compliance with which the defendants pleaded as dealt with by me in respect of the first cause of complaint.

[33]       However, clause 6 did not require that any other notice to the purchaser be sent to his chosen domicilium citandi et executandi by way of registered post as argued by the excipient. To the contrary, clause 6 provided that in the event of non-compliance by the excipient with the demand, the seller was entitled to cancel without any further notice to the purchaser.

[34]       Thus, the defendants pleading that the excipient was 'informed of the cancellation of the agreement in terms of Annexure C and I or Annexure D', was sufficient for the purposes of sustaining the cause of action.

[35]       Hence, the second complaint was without merit.

 

The repudiation complaints

[36]       The repudiation complaints arose from the defendants' alternative claim that the excipient's failure to pay the required instalments amounted to a repudiation of the Deed, pleaded as an alternative to the alleged cancellation of the Deed.

[37]       The excipient's argument and heads of argument referred to a plethora of issues not raised in terms of the fourth and fifth grounds of the exception. I do not intend dealing with those arguments as they traversed matter far outside of the pleaded grounds of the exception.

[38]       The excipient alleged that the defendants did not adequately plead the alleged repudiation in that annexures 'C' and 'D' to the amended counterclaim were not addressed and I or dispatched to the excipient's correct and / or chosen domicilium citandi et executandi in terms of clause 6. Thus, the defendants had not complied with the procedure stipulatedin clause 6 for informing the excipient in terms of the Deed.

[39]       I have already dealt with my view, equally applicable in this context, that the procedure provided in clause 6 applied only to the demand.

[40]      Accordingly, there is no merit in this cause of complaint.

[41]      The excipient further averred that the defendants failed to plead the necessary facta probanda required to sustain a claim for repudiation in that those requirements did not appear from the contents of annexures 'C' and 'D' to the amended counterclaim.

[42]      The exception did not refer to the averments pleaded in the amended counterclaim in respect of the claim for repudiation. The exception relied only upon the contents of annexures 'C' and 'D' in order to allege that the defendants had failed to plead the required averments.

[43]      In so doing, the excipient required the court to engage with the content of the correspondence comprising annexures 'C' and 'D', and to make a determination based thereupon

[44]       Annexures 'C' and 'D' were referred to in paragraph 7.3 of the amended counterclaim as the mechanism by which the excipient was informed of the cancellation of the Deed. Thus, the content of those annexures amounted to evidence of the facts pleaded in paragraph 7.3 of the amended counterclaim.

[45]       In effect, this complaint called upon the court to engage with and determine the cause of complaint based upon evidence, which falls outside of the parameters of an exception.

[46]       Hence, the complaints based on the repudiation, (the fourth and fifth grounds of the exception) are without merit.

 

The restitution complaint

[47]       In paragraph 8 of the amended counterclaim, the defendants pleaded that they were not obliged to tender restitution, alternatively claimed that they be excused from tendering restitution,

[48]       The excipient averred that paragraph 8 of the defendants' amended counterclaim, sought to import a waiver of the natural consequences of the alleged cancellation of the Deed between parties, and, was based on the excipient's failure to pay compensation for his occupation of the premises, which the excipient was not contractually obliged to pay.

[49]       The excipient referred to the authority that a party claiming cancellation is obliged to tender restitution or provide a valid excuse for failing to make such a tender. The latter allegedly only applies in order to avoid unjust enrichment,[11] which the defendants failed to plead. Accordingly, the excipient alleged that the defendants were not permitted to claim cancellation.

[50]      The defendants pleaded that their claim was not for restitution and for that reason they were not obliged to tender restitution. Additionally, and in the alternative, the defendants pleaded the facta probanda necessary to sustain a claim that they be excused from tendering restitution.

[51]       'A tender of restitution, or the explanation and excuse for its failure, is a requirement in proceedings for restitution ... '.[12] Accordingly, paragraph 8.1 of the defendants' amended counterclaim did not lack averments necessary to sustain a cause of action.

[52]       As to the defendants' alternative, the duty of restitution is founded in equity and maybe departed from in the interests of justice,[13] effectively the claim made by the defendants in paragraph 8.2 of the amended counterclaim. Thus, there was no basis to impugn the defendants' paragraph 8.2.

[53]       Hence, the sixth cause of complaint raised in the exception stands to be dismissed.

[54]       The parties agreed that the costs of the application should follow the merits and I intend to make such an order.

[55]       By reason of the aforementioned, the application is dismissed with costs.

 

 

A A CRUTCHFIELD SC

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA

 

 

COUNSEL FOR THE EXCIPIENT:                                          Mr G F Heyns.

INSTRUCTED BY:                          Prinsloo, Wolmarans, Greyling Attorneys.

COUNSEL FOR DEFENDANTS:                                               Mr C Richard.

INSTRUCTED BY:                                                       Dr T C Botha Attorneys.

DATE OF HEARING:                                                                   20 April 2018.

DATE OF JUDGMENT:                                                             03 August 2018

---