The Firs Investment Ltd v Levy Bros Estates (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Rabie CJ, Kotzé JA, Joubert JA, Trengove JA and Smuts AJA
• Judgment Date: 22 March 1984
• Hearing Date: 28 February 1984
• Court: Appellate Division

Trengove JA:

The appellant is the owner of a shopping centre in Rosebank, Johannesburg, known as "The Firs". The respondent carries on business as a firm of estate agents. The respondent instituted an action against the appellant in the Witwatersrand Local Division for payment of R195 750 as damages for the alleged wrongful revocation of a mandate granting the H respondent "the sole irrevocable authority expiring on 30 June 1980 to effect the sale" of "The Firs" on certain terms and conditions which were embodied in a letter dated 5 December 1979, to which I shall presently refer more fully. When the case came to trial, it was common cause that the appellant had granted the respondent the mandate in question, but had withdrawn it before the date of expiry. The only issue before the trial Court (and also before this Court) was whether the appellant's revocation of the mandate constituted a breach of contract in respect of which the respondent

Trengove JA

was entitled to claim damages. The trial Judge, F S STEYN J, decided this issue in favour of the respondent (plaintiff) and he accordingly gave judgment for the respondent as prayed, with costs; hence this appeal.

The facts are very simple. During or about September 1979 the A appellant considered selling "The Firs" and it authorised the respondent to enter into negotiations with the Electricity Supply Commission Pension and Provident Fund (the Fund) which appeared to be interested in acquiring this property for investment purposes. On 5 December 1979 the appellant and the respondent entered into an agreement, the terms of which were B embodied in the letter of 5 December 1979, to which I have already referred. The letter reads as follows:

"Authority to sell

Messrs Levy Brothers Estates (Pty) Ltd

12th Floor, North State C Cnr Market & Kruis Streets

Johannesburg

Dear Sirs,

The Firs Investments Ltd, herein represented by Aron Aronovsky, chairman of the company, who is duly authorised by the company ('the seller') - does hereby grant you the sole irrevocable authority expiring on 30 June 1980 to effect the sale of lot 192, Rosebank, on which is erected the building known as 'The Firs' (hereinafter referred to as 'the property'), on the terms D and conditions hereinafter set out.

1.

Property

The property is defined as lot 192, in the township of Rosebank, registration division IR, Transvaal; measuring 7 952 square metres; held under certificate of consolidated title T 7480/1978, in terms of the photostat copy of the title deed and E diagram attached hereto marked 'A'.

2.

Purchase price

The purchase price is the sum of R12 000 000 which will be payable as follows:

(a)

on signature of the deed of sale the sum of R50 000 to Messrs Raphaely-Weiner, 4th Floor, Nedbank Mall, cnr Commissioner and Smal Streets, Johannesburg, in trust, to be paid over by Raphaely-Weiner to the seller on F registration of transfer of the property into the name of the purchaser;

(b)

the balance of the purchase price shall be payable in cash against registration of transfer into the name of the purchaser and pending such registration shall be secured by an approved banker's guarantee made payable to the seller against registration of transfer of the property into the name of the purchaser, which G guarantee shall be delivered to Messrs Raphaely-Weiner within a period of 45 days from the date of the signing of the deed of sale.

3.

Sale 'voetstoots'

The property shall be sold as it stands 'voetstoots' and shall be subject to all the terms, conditions and servitudes mentioned or referred to in the present or any prior title deeds relating to the property.

4.

Leases

The property is leased under sundry deeds of lease and other tenancies, to various tenants.

The seller gives no warranties whatsoever in regard to the said leases which will be made available for inspection by the purchaser or its representative.

5.

Possession

Possession of the property shall be given to the purchaser on the date of registration of transfer, from which date the purchaser shall be entitled to all the benefits and shall be liable for all rates, taxes and other outgoings

Trengove JA

thereon. The purchaser shall be obliged to refund to the seller, on demand, any rates or other outgoings paid in advance of such date and shall be entitled to receive a proportionate share of any rents paid in advance of such date.

6.

Costs of transfer

A The purchaser will be liable for all costs of and incidental to the deed of sale, all costs of transfer, transfer duty, stamp duty and all other matters incidental to the transfer.

7.

Conveyancers

Transfer shall be effected by Raphaely-Weiner as conveyancers to the seller within a reasonable time after the purchaser has B complied with the provisions of clause 2 hereof and has paid Raphaely-Weiner's...