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IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number:   883/2021

In the matter between:

GEORGE PATRINOS (N.O)                                                        Applicant

and

KAUFMANN CARLENE CHRISTINE THERESA                    Respondent

HEARD ON:                17 JUNE 2021

JUDGMENT BY:          MATHEBULA, J

DELIVERED ON:         The judgment was handed down electronically by circulation to the parties’ legal representatives by email and release to SAFLII on 17 September 2021. The date and time for hand-down is deemed to be 17 September 2021 at 12H00.

Introduction

[1]       In this opposed application the applicant is an executor of the estate, seeking an order that the sale agreement of an immovable property entered into by and between the deceased and the respondent be declared valid and legally binding. Consequently, the respondent be ordered to pay the purchase price and sign all the necessary documents to effect transfer. Coupled with this order is the ancillary relief of what should occur in the event the respondent does not comply with the order sought.

Brief facts

[2]       On 7 May 2020 the respondent sent an electronic mail directed to the deceased’s daughter Mrs Vasiliki Patrinos enquiring whether the immovable property known as 27 De Wet Street at Dewetsdorp was on the Market (for sale) and what was the purchase price.[1] It is held in terms of deed of transfer T14637/1980. On 1 August 2020 the deceased (represented by her attorney) and the respondent concluded a deed of sale of the immovable property.[2] The purchase price was set at R750,000.00 payable in cash on/or 30 October 2020. The property was sold voetstoots as it stood and no warranties with regard to the outbuildings was made. The seller was also absolved for any defects in the property either latent or patent. Importantly the aforesaid sale agreement contained a suspensive condition that the offer was subject to the respondent obtaining funds from the estate of the late B Hodgson to cover the purchase price and costs within ninety (90) days of the signature. The clause was included in the deed of sale by the attorney acting for the respondent.

[3]       The respondent was given occupation of the property on 23 May 2020. In terms of the agreement, rental in the amount of R2,250.00 was payable until November 2020. The respondent’s attorneys wrote a letter dated 21 September 2020 to Mrs Vasiliki Patrinos requesting that she should be released from the sale agreement.[3] Primarily she cited threats to her personal safety as the main reason for cancellation. This was resisted on behalf of the deceased. In a letter dated 2 November 2020, the attorneys for the deceased demanded payment of the purchase price. In response the attorneys for the respondent pointed out that the suspensive condition has not been met and as such the sale agreement is at an end. This in a nutshell is what gave rise to a dispute between the parties.

The applicant’s case

[4]       In summary, counsel for the applicant argued that the issue raised by the respondent denying the authority and personal knowledge of the deponent to the founding affidavit is not meritorious. He pointed out that the deponent of the affidavit is a witness and does not need any authority to testify. If the respondent wishes to challenge this aspect, a notice in terms of Rule 7 of the Uniform Rules of Court should have been served and filed. Secondly, such denial of the deponent not having personal knowledge is not sustained by the facts.

[5]       Counsel for the applicant contended that the applicant seeks specific performance of the breach. Only in the alternative does the applicant rely on the doctrine of fictional fulfilment. Accordingly, the essence of the matter is whether the suspensive condition was fulfilled or not. The case for the applicant is that the suspensive condition was fulfilled when the Master of the High Court gave permission to the executor to distribute to the beneficiaries. He urged me to attach a commercially viable, logical or sensible interpretation to the clause.

The respondent’s case

[6]       Counsel for the respondent countered and raised as a shield three points why the application should be dismissed with costs. Firstly, she argued that although the deponent states that she bears personal knowledge of the facts, the source of such personal knowledge is unknown. The basis of the contention is that neither the applicant nor the deponent are in a position to address the fulfilment of the suspensive condition. Secondly, the suspensive condition required the funds to be paid over to the respondent. The use of the word “obtain” means “to receive” and not “to be made available by the Master of the High Court” as the applicant seems to suggest. The funds were received well after the lapse of the suspensive condition. However, she conceded that although it would have been preferable for the respondent to specify the exact date she received the funds, it was not fatal because she does not bore any onus of proving the fulfilment of the suspensive condition.

[7]       Thirdly, she pointed out that the reliance of the applicant on fictional fulfilment of the suspensive condition is misplaced. She referred me to the decision of MacDuff and Co Ltd v Johannesburg Consolidated Investment Co Ltd and argued that the applicant has not met the requirements as set out by the court therein.[4] The applicant has proved the non-fulfilment of the condition. There is no proof that the respondent committed a breach duty with the intention of frustrating fulfilment of the suspensive condition. She pointed out that the case for the applicant is that there was fulfilment of the suspensive condition. Therefore, allegation of fulfilment of the suspensive condition eliminates any reliance on fictional fulfilment. Overall there is no factual basis that the respondent acted inimical to the fulfilment of the suspensive condition.

Preliminary point

[8]       There is one uncontroversial issue concerning the late filing of the opposing affidavit that should not detain us for long. It was filed a mere five (5) days late. An extension was sought from and granted by the applicant. The cogent explanation put forward tend to show that the respondent did not wilfully disregard the rules of court particularly the time frames. None of the parties are in any manner prejudiced by late filing and I take cognisance of the fact that the applicant does not oppose the application for condonation. It must be granted.

Discussion

[9]       This matter rests on the question whether the suspensive condition in the sale agreement was fulfilled or not. Paragraph 23.1 of the offer to purchase which constitutes a Deed of Sale reads as follows: -

“This offer is subject to a suspensive upon the purchaser obtaining funds from Estate Late B. Hodgson to cover purchase price and costs within 90 days of signature hereof”

[10]     This suspensive condition had to be fulfilled on 30 October 2020 in order for the sale agreement to be valid and binding.  The parties part ways on the interpretation of the phrase “obtaining funds from the Estate Late B. Hodgson”. Prior to discussing what is the quintessence of the dispute between the parties, other issues were raised which require attention and potentially could tilt the decision in her favour.

[11]     At the outset the reliance on the lack of authority on the part of the deponent to an affidavit is misplaced. It is trite that a litigant who wishes to challenge the authority of another must invoke Uniform Rule 7.[5] As correctly pointed out by counsel for the applicant, the respondent did not avail herself of the procedure. A deponent in an affidavit is a witness and does not require any authority.

[12]     An issue was made about the existence of the dispute fact implying that the motion proceedings before court are unsuited. Counsel for the applicant referred me to the decided case of Wightman t/a JW Construction v Headfour (Pty) Ltd and Another[6]. On that occasion the court set out the principles in paragraphs 12 and 13 as follows: -

“Recognising that the truth almost always lies beyond mere linguistic determination the courts have said that an applicant who seeks final relief on motion must in the event of conflict, accept the version set up by his opponent unless the latter’s allegations are, in the opinion of the court, not such as to raise a real, genuine or bona fide dispute of fact or are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers: Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 19 84 (3) SA 623 (A) at 634E-635C. See also the analysis by Davis J in Ripoll-Dausa v Middleton NO [2005] ZAWCHC 6; 2005 (3) SA 141 (C) at 151A-153C with which I respectfully agree. (I do not overlook that a reference to evidence in circumstances discussed in the authorities may be appropriate.)

A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed. There will of course be instances where a bare denial meets the requirement because there is no other way open to the disputing party and nothing more can therefore be expected of him. But even that may not be sufficient if the fact averred lies purely within the knowledge of the averring party and no basis is laid for disputing the veracity or accuracy of the averment. When the facts averred are such that the disputing party must necessarily possess knowledge of them and be able to provide an answer (or countervailing evidence) if they be not true or accurate but, instead of doing so, rests his case on a bare or ambiguous denial the court will generally have difficulty in finding that the test is satisfied. I say ‘generally’ because factual averments seldom stand apart from a broader matrix of circumstances all of which needs to be borne in mind when arriving at a decision. A litigant may not necessarily recognise or understand the nuances of a bare or general denial as against a real attempt to grapple with all relevant factual allegations made by the other party. But when he signs the answering affidavit, he commits himself to its contents, inadequate as they may be, and will only in exceptional circumstances be permitted to disavow them. There is thus a serious duty imposed upon a legal adviser who settles an answering affidavit to ascertain and engage with facts which his client disputes and to reflect such disputes fully and accurately in the answering affidavit. If that does not happen it should come as no surprise that the court takes a robust view of the matter.”

[13]     While the respondent raises this issue, she does not in her opposing affidavit deal seriously and unambiguously with the fact(s) said to be disputed. What follows in her opposing affidavit is a bare denial of almost everything. Even the facts which ordinarily will be expected that she will admit. The typical example is the denial of the electronic mail sent by her mentioned on paragraph 5.3 of the founding affidavit with the extract of the same attached as annexure “FA2”. Prima facie it was sent by her and directed to Mrs Vasiliki Patrinos. In the email she pertinently enquires about the sale of the immovable property. In parts the respondent makes allegations that are far-fetched or clearly untenable. This does not come to her assistance. She alleges that she was urged to purchase the immovable property by Mrs Vasiliki Pratrinos. The fact is that she is the one who made the enquiry. The so called dispute of fact is self-created and does not measure up to the principles set out by the higher court. I have no misgivings in rejecting this assertion as it is devoid of any substance.

[14]     This brings me to what is the crux of the dispute between the parties. A contract of sale which is subject to a suspensive condition comes into existence only when the condition is fulfilled. In this matter the contract between the parties is subject to such a true suspensive condition which would be binding when it ripen.

[15]     A provision of the contract must not only be interpreted in the context of the contract as a whole but, the court must give a commercially sensible meaning to the aforementioned contract. An authority for this proposition is Ekurhuleni Metropolitan Municipality v Germiston Municipality Retirement Fund where the following appears: -

“The principle that a provision in a contract must be interpreted not only in the context of the contract as a whole, but also to give it a commercially sensible meaning, is now clear. It is the principle upon which Bekker NO v Total South Africa (Pty) Ltd 1990 (3) SA 159 (T) at 170G-H was decided, and, more recently, Masstores (Pty) Ltd v Murray & Roberts Construction (Pty) Ltd and Another [2008] ZASCA 94; 2008 (6) SA 654 (SCA) was based on the same logic. The principle requires a court to construe a contract in context – within the factual matrix in which the parties operated. In this regard see KPMG Chartered Accountants (SA) v Securefin Ltd and Another 2009 (4) SA 399 (SCA) (13 March 2009) at para 39”.[7]

[16]     However this approach is subject to qualification. It must be borne in mind that the rule of interpretation requires to ascertain what the language used by parties means. This was explained in GPC Developments CC and Others v Uys and Another in the following terms: -

“Applying the mandated approach to contractual interpretation, the court is required to consider the language chosen by the parties in their agreement contextually against the background facts and circumstances known to them and considered at the time of conclusion of the contract and give it its ordinary grammatical meaning. A sensible and business-like interpretation should be sought provided it does not violate the actual wording of the agreement”.[8]

[17]     Reverting to the contract, I was urged to give meaning contended by each party. They firmly hold the view that the language used in the provision is capable of different meanings. This is between interpreting “obtain funds” to mean “funds paid over” and the same word to mean “funds being available”. The authority relied upon require the court to give effect to the meaning that was intended by the parties. In simple terms the cardinal rule is that words must be given their ordinary grammatical meaning. In doing so, the actual wording of the agreement must not be violated. It stands to reason that in this endeavour, the intention of the parties can be gleaned from the facts.

[18]     It was apparent from the outset that the negotiations which culminated with the signing of the Deed of Sale were premised on the respondent accessing her inheritance from the estate. Such funds could only be accessed, I venture to say obtained, once the Master of the High Court had given such permission upon compliance with the requirements. On 17 September 2020 such permission was granted that the respondent must be paid her inheritance. The suspensive condition in any view was closely perched on the administration of the Estate Late B. Hodgson.

[19]     The funds were available to be paid to the transferring attorneys for a period of six (6) weeks before 30 October 2020. There is no explanation advanced by the respondent what caused the delay. The respondent does not bear any onus but it will be expected that some explanation must be tendered in this regard. Instead, a few days after the funds could be accessed, the respondent through his attorneys purported to cancel the contract of sale. She raised amongst others attempted robbery and land invasion by squatters. There is no real evidence to sustain these claims. Clearly when that failed, did the respondent raise the expiration of the suspensive condition as the reason for cancellation.

[20]     Interestingly, on 18 September 2020, the executor paid R25,000.00 into the bank account of the respondent. This is a clear indication that the funds were obtainable and there is no reason why she could not fulfil the suspensive condition. The respondent states that she only received the funds in November 2020. Again she does not take the court into her confidence to be specific on this issue.

[21]     Inferences may be drawn in matters of this nature from a set of objective facts. The requirement is that such must be a reasonable inference that is sought to be drawn. The conduct of the respondent is reminiscent of that of a person who deliberately frustrated the fulfilment of the suspensive condition. That is the only reasonable inference to be drawn in the circumstances. It will not make commercial sense or appeal to logic if one interprets the suspensive condition as suggested on behalf of the respondent. The language used by the parties envisaged that the funds will be obtained once the Master of the High Court has approved the Liquidation and Distribution Account. That is a sensible approach in interpreting the provision because once the permission is granted, payment follows in the natural cause of events.

[22]   Logic dictates that in the context of the contract as a whole the suspensive condition envisaged the contract coming into existence the moment the respondent secured the funds. The respondent was entitled to the funds, she was the owner and the process of paying over to her was a part of the administration of the estate which could not have been reversed by anyone. If the parties intended it to mean “paid over by the executor”, they would have simply written it in that way. Despite diligent search I could not encounter the word “paid” as a synonym of the word “obtain”.

[23]     Paragraph 28 of the opposing affidavit reads as follows: -

“my attorney had a suspensive condition included in the offer whereby the offer was subject to the successful inheritance from my late partner’s estate within ninety (90) days from date of signature, being 1 August 2021.”

The respondent introduces another dimension to her case by merely stating that the sale was “subject to the successful inheritance…”. It is unclear what is meant by this assertion. The respondent is deliberately skirting the issue and does not explain what was the intention of the parties. If the parties meant that her inheritance should be paid for the suspensive condition to be fulfilled, she should have unequivocally said so in her papers.

[24]     The conclusion is that the suspensive condition was fulfilled thus the contract of sale perfected when the funds were obtained following the approval of the Liquidation and Distribution Account by the Master. This finding is consonant with overwhelming evidence supporting the interpretation of the suspensive condition in the manner that is logical and making commercial sense. The only event that was certain between the parties and will lead to the release of the funds was the approval of the Liquidation and Distribution Account as stated. Payment is only the implementation thereof. This is in keeping with giving effect to the specific meaning of what was intended by them.

Order

[25]     I make the following order: -

25.1  Condonation of the late filing of the opposing affidavit is granted.

25.2  The sale agreement concluded on 1 August 2020 between Despina Apostolides (the deceased) and the respondent in respect of the immovable property situated at 27 De Wet Street, Dewetsdorp and consisting of erf 401, 402, 403, 404, 405 and 406 Dewetsdorp, Free State Province, held by her in terms of deed of transfer no T14637/1980 (the ‘property’), is declared valid and binding on the parties.

25.3  The respondent is ordered to give due effect to the terms and conditions of the sale agreement.

25.4  The respondent is ordered to pay the purchase price of the immovable property in the amount of R750,000.00 plus transfer costs in the amount of R23,132.85 within ten (10) days of this order to the conveyancing attorneys, namely Spangenberg Zietsman & Bloem Inc, Standard Bank, Brandwag Branch Code 055534, Trust Account Number 041245784.

25.5  The respondent is ordered to sign on request all documents necessary to enable the applicant and the conveyancing attorneys to proceed with the transfer of the immovable property into the name of the respondent, and that same be registered at the relevant Registrar of Deeds.

25.6  In the event that the respondent fails to comply with the order as set out above in paragraph 25.5, the Sheriff of the High Court, Bloemfontein West (or its duly authorised official) may sign such documents necessary to effect the transfer of the immovable property as presented by such relevant attorney to the said Sheriff, and such signature shall at all times be accepted by the relevant authority as a proper signature of such documents.

25.7  The respondent is ordered to pay costs of this application.

M. A. MATHEBULA, J

On behalf of applicant:                   Adv. N Snellenburg SC

Instructed by:                                 Spangenberg Zietsman & Bloem Attorneys

                                                      BLOEMFONTEIN

On behalf of respondents:              Adv.  J Ferreira

Instructed by:                                 Symington & De Kok Attorneys

                                                      BLOEMFONTEIN

[1] Page 25 of the Indexed papers.

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