(GAUTENG DIVISION, PRETORIA)

Transcription

1 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy REPUBLIC OF SOUTH AFRICA OFFICE OF THE CHIEF JUSTICE (GAUTENG DIVISION, PRETORIA) CASE NO: 22592/15 DELETE WHICHEVER IS NOT APPLICABLE (1) REPORTABLE: YES / NO. (2) OF INTEREST TO OTHER JUDGES: YES / NO. (3) REVISED.... DATE SIGNATURE IN THE MATTER BETWEEN BURGERT FREDERIK LOUW Applicant and COENRAAD CHRISTOFFEL VAN WYK BRIGITIE JOHANNA ROSEMARIE VAN WYK REGISTRARS OF DEEDS First respondent Second respondent Third respondent JUDGMENT

2 2 LEGODI J [1] The enforceability of an agreement of sale which was subject to suspensive conditions in respect of an immovable property situated at [...] was the subject of a dispute before me. The issue in dispute was whether the suspensive condition in clause of the written agreement has been fulfilled, which clause reads as follows: 6.1 This Agreement shall be subject to the suspensive condition ( suspensive Condition ) listed below, The Mortgage financing Subject to clause to (both inclusive), the Purchaser obtains approval for a loan to finance the amount of R (THREE MILLION AND EIGHT HUNDRED THOUSAND RAND) against security of a mortgage bond registered over the property and on registered terms and subject to such conditions as are ordinarily imposed by mortgage lending financial institutions ( Mortgage Lender), by no later than the 27 th day of February 2015 ). [2] Clause referred to in clause quoted above reads as follows: The suspensive condition set out in clause shall be deemed to have been fulfilled on the date upon which the Mortgage Lender issues a written loan quotation or similar documentation approving or offering the loan sought ( Loan Approval Document) to the Purchaser. [3] The written loan quotation as contemplated in clause above was issued on the 19 February 2015, but for the sum of R The applicant, who is the purchaser, has now approached this court and wants to enforce the agreement by having the immovable property registered in his names. The application is resisted by the first and second respondents (sellers) who are married to each other apparently in community of property.

3 3 [4] The ground of attach against the applicant s application is that the agreement has never come to life because by 27 February 2015, the suspensive condition in clause quoted above was not fulfilled because the guarantee in the amount of R issued by the Mortgage Lender, First National Bank on 19 February 2015 was less than the amount of R [5] The price for the purchase price agreed upon was R and a deposit of R being 10% of the purchase price was payable within three business days after the date of signature of the agreement which was 26 January The R was therefore the balance of the R [6] Regarding the fulfillment of the suspensive condition, counsel for the applicant contended that and subject to such conditions as ordinarily imposed by mortgage lending financial institution ( mortgage lender ) by not later than the 27 th day of February 2015, in clause and the approval of the loan in the sum of R , should be seen as a fulfillment of suspensive condition in clause For two reasons I cannot agree with this contention: 6.1 Such conditions as are ordinarily imposed by the mortgage lending financial institutions, in clause should be referring to inter alia, the process of security by registering the mortgage bond over the property in favour of the mortgage lending institution, in the instant case, First National Bank. It would also mean that mortgage lending institution when approached for finance, would do its valuation of the property to be used as security and assess the credit worthiness of the entity or person applying for finance. Such process is a matter between a lending institution and the person applying for a loan (the prospective purchaser) and has nothing to do with the seller. But the agreed purchase price and securing of a loan in the amount of R by not later than 27 February 2015 for the balance, in the instant case, and not R , was the subject of a suspensive condition between the parties. 6.2 Secondly, in Kovals Investments 724 (PTY) Ltd v Marais 2009 (6) SA 560 SCA, the Supreme Court of Appeal had the opportunity to deal with more

4 4 or less similar circumstances as in the present case. In paragraph 21 tthereof Mpati J, of relevance, stated: Here, the appellant seek to claim that it has substantially performed when it could raise a loan only in an amount less than that stipulated in the written agreement. Jonker makes no averment whatsoever, in any one of his affidavits, of an agreement as to how and when the deficit of almost R would be payable. He suggested that he would have obtained the full amount through his giving the bank additional security, but nowhere was it alleged that the respondent was aware of this possibility, or that the bank would in fact have approved a loan for the full amount. Thus, in my view, the change to the quotation of the loan approved by the bank is not a waiver but an amendment to the condition which does not result in the contract being altered. It is not a temporary suspensive of the enforcement of an obligation. What would in fact have occurred is that the appellant s obligation to secure a loan for the balance of the purchase price of R would have been altered or amended to one where the appellant had now to procure a loan for a lesser amount, with no agreement on when and how the deficit was to be secured or paid. The underlining is my emphasis. [7] In paragraph 22 of the judgment, Mpati J continued: [22] The contention, on behalf of the appellant, that it was not the appellant s case that the parties agreed to amend the subject to loan clause by replacing the amount in it with a lesser amount does not hold water. As was said in Van As v Du Preez an oral variation masquerading as or in the guise of a waiver remains what it truly is. It remains a variation, to hold otherwise, the court concluded, would be to render nugatory the principle of the effectiveness of contractual entrenchment as laid down in Shifren s case. [8] The same principle quoted above, should find application in the present matter. The issue relating to attempts to pay the R separately came after the 27 February By that time, the agreement had ceased to exist for none fulfillment with suspensive condition under clause The agreement in my view, could not

5 have been revived by the attempts to find the R even if that was before registration. 5 [9] Consequently the application is hereby dismissed with costs. M F LEGODI JUDGE OF THE HIGH COURT FOR THE APPLICANT: ADV. D E COETSEE INSTRUCTED BY : JACQUES VAN GREUNEN ATTORNEYS C/O ALAN LEVY ATTORNEYS 215 Orient Street Arcadia, PRETORIA TEL: ; Jacques@jvgattorneys.co.za REF: JR van Greenen/VIV1/0022 FOR THE 1 st & 2 nd RESPODENTS: INSTRUCTED BY: JACO DE VILLIERS ATTORNEYS C/O VAN ZYL LE ROUX INC. 1 st Floor, Block 3 Monument Office Park 71 Steenbok Avenue PRETORIA TEL: litigasie@vzlr.co.za REF: T Steyn/tmc/MAT65009 HEARD ON: 17 AUGUST 2015 JUDGMENT HANDED DOWN: 25 AUGUST 2015