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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

CASE NO: 21667/2019

 

IN THE MATTER BETWEEN:

STEENKAMP: LINDA MAGDALENA

Identity Number: [….]                                                                                   Applicant

 

AND

 

VAN STADEN: MARTINUS PETRUS

Identity Number; [….]                                                                    First Respondent

 

VAN STADEN: VERONIQUE

Identity Number: [….]                                                              Second Respondent

 

JUDGMENT

FABRICIUS J

[1]             In these proceedings Applicant seeks an order that “the purchase and sale agreement together with addenda thereto in respect of the purchase and sale of the property known as erf [….] be hereby confirmed and declared terminated”. An order is also sought declaring that the respondent is in unlawful occupation of the property as a result of the said cancellation.

 

[2]             It is noted that the relevant agreements were not properly identified in the Notice of Motion, but in this instance that is merely sloppy draughting and of no consequence because it is common cause that the relevant agreements were conducted.

 

[3]             The parties agreed that the application be decided on the papers. It was respondents’ position that applicant had not even make out a case because it did no allege or show that it had complied with the “Breach” clause, which is contained in par 13 of the main agreement. This clause requires, in case of breach of any of the terms of the agreement, a notice to remedy such breach within 14 days after delivery thereof.

 

[4]             After the contracts had been entered into, it was discovered that a lapa had been erected on a servitude in favour of the municipality, and that there was no approved building plans either. This gave rise to a delay, various meetings and correspondence. According to applicant this delay resulted in a breach of terms of the contract which in clause 11 dealt with “Delays”. There is no clause in the agreement to the effect that time is of the essence.

 

[5]             The applicant was the purchaser and as result of the delay referred to and/or the fact that respondents had “halted” the transfer and registration of the property, on 13 December 2018 in writing purported to terminate the relevant agreement.

 

[6]             The relevant 14-day period that I have mentioned, was not granted to Respondents, nor is any such allegation or proof thereof to be found in the founding affidavit.

 

[7]             It is abundantly clear that when such a lex commissoria appears in a contract, it must be strictly complied with.

See: De Wet No v Van Uys No 1998 (4) SA 694 T at par 17, and North Vaal Mineral Co. Ltd v Lovasz 1961 (3) SA.

 

[8]             The written notice of 13 December 2018 was with immediate effect. The applicant, by failing to comply with clause 13 of the Contract, has not established that she had the right to cancel the agreement. The cancellation therefore has no legal effect.

 

[9]             Applicant made a tender with prejudice which conflicts with the relief sought as it seeks to give effect to the contract. Applicant cannot approbate and reprobate in this contract.

 

[10]          In this regard the following order is made:

10.1  the application is dismissed with costs.

 

 

H FABRICIUS

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

 

 

 

 

 

 

 

 

 

 

 

 

 

DATE OF HEARING: NO ORAL HEARING

DATE OF JUDGMENT: 4 AUGUST 2020

 

FOR THE APPLICANT: ADV L KINGHORN

INSTRUCTED BY: J OLIVIER ATTORNEYS

 

FOR THE RESPONDENT: ADV FC LAMPRECHT

INSTRUCTED BY: HEFFERMAN ATTORNEYS

 

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