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[2008] ZAKZHC 54
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Naidoo v Roberts and Another (2694/2007) [2008] ZAKZHC 54 (25 July 2008)
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IN THE HIGH COURT OF SOUTH AFRICA
(DURBAN AND COAST LOCAL DIVISION)
Case No. 2694/2007
PRISCILLA NAIDOO Applicant
versus
LILLIAN ROBERTS 1st Respondent
REGISTRAR OF DEEDS FOR THE
PROVINCE OF KWAZULU-NATAL 2nd Respondent
___________________________________________________________
RESERVED JUDGMENT
Delivered on 25 July 2008
NTSHANGASE, J
[1] This is an application for an order to compel the transfer of fixed property described as “Portion 1725 of 2286 of Erf 101 Chatsworth, Physical Address 81 Montdene Drive, Chatsworth” to the applicant in terms of a purchase and sale agreement, (annexure “B”) to the applicant’s founding affidavit entered into between the applicant and Munsami Naidoo (“the deceased”), of whose estate the first respondent is the executrix. The second respondent, later joined in the proceedings, does not oppose the application. Reference to respondent shall hereafter be to the first respondent.
[2] In opposition to the application Mr Padaychee, for the respondent did not pursue the point in limine taken in respondent’s answering affidavit, in which annexure “B” was attacked as void for vagueness. The thrust of his argument proceeded on the nature of the stipulation in clause 1.2 of annexure “B” as being a suspensive condition whose non-fulfilment by the applicant within the specified period of 30 days rendered the contract void.
[3] Clause 1.2 of annexure “B” over which the issue revolves in these proceedings reads :
“1. PURCHASE PRICE
The purchase price ‘is the sum of two hundred and fifty thousand rands (R250 000)’ which amount shall be payable as follows :
subject to a cash deposit of ‘NIL’
a bank or building society guarantee for the sum of ‘two hundred and fifty thousand rands’ obtained by the purchaser to the satisfaction of the seller within thirty (30) days of signature hereof.”
[4] The sale agreement per annexure “B” was entered into and signed by the applicant and the deceased on 28 July 2006. In an apparent attempt to acquire a bank guarantee to satisfy the requirements of clause 1.2 the applicant obtained annexure “C” to the applicant’s founding affidavit, an approval in principle from Standard Bank on 16 August 2006. Its crucial part reads :
“Application has been approved in principle subject to –
Latest three months bank statements reflecting salary.
Favourable assessment.
Loan to value not to exceed 100%.
The bank reserves the right to withdraw”
It was conceded by Mr Deoduth for the applicant that this is not a guarantee. It is a document which conveys approval subject to the stipulations to be met to the satisfaction of the lending bank.
[5] On 12 September 2006 the applicant obtained from the bank annexure “D” to the applicant’s founding affidavit whose crucial part reads :
“A loan of R250 000 has been approved based on a purchase price of R250 000 for the property.”
It was obviously obtained post the thirty day period stipulated in clause 1.2.
[6] It is contended on behalf of the respondent that by reason of non-fulfilment, annexure “B” never ripened into a contract. The contrary is contended for on behalf of the applicant.
[7] Mr Deoduth argued that clause 1.2 is a mere term of the contract contrary to the respondent’s contention that it is a suspensive condition. Mr Deoduth argued that even if it were found to be a suspensive condition it would not assist the respondent. In that regard he referred to a passage in the judgment of Botha J in Design and Planning Service v Kruger 1 to advance the argument that where a suspensive condition is inserted for the benefit of one of the parties only, the failure to fulfil it would not automatically discharge the contract and that the applicant should therefore have been placed in mora. In my view Mr Padayachee’s construction of the passage relied upon by Mr Deoduth is the correct one. Botha J referred to circumstances where time is not appointed for the fulfilment of a suspensive condition and where, therefore, a reasonable time for fulfilment applies; failing fulfilment within a reasonable time, when a suspensive condition is of a kind which has not been inserted in a contract for the specific benefit of one of the parties only, the contract is discharged automatically by virtue of an implied term to that effect. In the present case the non-fulfilment of the suspensive condition rendered the contract void. (See Legate, J.M. v Natal Land and Colonization Company, Ltd) 2
[8] In regard to the placement of the applicant in mora as contended for by Mr Deoduth, the position simply is that in a pact of the nature of clause 1.2 there is no requirement on the part of the seller to demand performance in order to place the purchaser in mora. Where a specific date or time for performance has been stipulated, as in this case it was, the party who fails to perform on or before the appointed date or time is automatically in mora for in such a case the principle which then applies is dies interpellat pro homine.
[9] In regard to Mr Deoduth’s submission that clause 1.2 constitutes a mere term of the contract, Mr Padayachee correctly disagrees in my view. I need to observe that the obtaining of a guarantee as demanded by clause 1.2 is certainly an uncertain event which depends upon a decision to be taken by the lending bank in its sole discretion. The uncertainty of the future event is one characteristic of a suspensive condition. In defining the nature of a suspensive condition, Trengove J in Thiart v Kraukamp 3 referred, with approval, to the article by D.P. de Villiers in the Tydskrif vir Hedendaagse Romeins-Hollandse Reg, 1943 at 21 where the following was stated :
“Op grond van die genoemde beginsels moet ons ń opskortende voorwaarde omskryf as ń beding, deel uitmakende van die ooreenkoms waaraan dit geheg is, waardeur die intrede van een of meer van die gevolge van die ooreenkoms afhanklik gemaak word van die al of nie plaasvind van ń toekomstige onsekere gebeurtenis. Die kontrak onstaan dadelik en sommige van die gevolge van die kontrak tree onmiddellik in, maar die hele kontrak met reeds ingetrede gevolge word opgehef as die voorwaarde nie vervul word nie.”
[10] What also needs to be stated to define the nature of clause 1.2 relates to the aspect of enforceability. While a term of the contract imposes a contractual obligation on a party to act, or to refrain from acting in a particular manner, and such a contractual obligation can be enforced, no action will lie to compel performance of a condition. (see Design and Planning Service supra) 4 In the present case I cannot conceive of clause 1.2 being enforceable.
[11] From a reading of clause 1.2 the parties to annexure “B” could clearly never have intended the suspensive condition to remain indefinitely unfulfilled.
[12] The applicant has failed to prove fulfilment of the suspensive condition as stipulated in clause 1.2 of annexure “B” and consequently the application must fail and the rule falls to be discharged.
ORDER
The application is dismissed.
The applicant is to pay the costs.
_______________________________
NTSHANGASE J
Date of Judgment : 25 July 2008
Counsel for Applicant : Mr M M Deoduth
Instructed by : Siven Samuel & Associates
Applicant’s Attorneys
344 Florence Nightingale Drive
Westcliff
CHATSWORTH
Counsel for Respondent : Mr R Padayachee
Attorneys for 1st Respondent : Dwarika, Naidoo & Company
1st Respondent’s Attorneys
Suite 1617
320 West Street
DURBAN
1 1974 (1) SA 689 (T) at 696
2 [1926] LKCA 17; (1906) 27 NLR 439 at 455
3 1967 (3) SA 219 (T) at 225 B - C
4 At 695 D