Bismillah (Venda) (Pty) Ltd v Netshituni

• Jurisdiction: South Africa
• Judge: Olivier JA
• Judgment Date: 27 November 1996
• Docket Number: 356/95
• Court: Appellate Division
• Hearing Date: 12 November 1996
• Citation: 1997 JDR 0039 (A)

Olivier J A:

This is an appeal against an order absolving the respondent (defendant) from the instance with costs by Ngoepe AJ in the Supreme Court of Venda, the necessary leave to appeal having been granted by that court. Absolution was granted after the close of the appellant's (plaintiff's) case without the respondent having led any evidence or having closed his case.

1997 JDR 0039 p2

Olivier JA

Somewhat simplified, the facts on which the appellant relied in its evidence were as follows:

1. During March 1991 the appellant, represented by its sole director, Mr Saleem Osman, commenced negotiations with the respondent for the purchase of the latter's property known as Stand 472, Thohoyandou.

2. Eventually the parties concluded an oral contract for the sale of the stand at a price of R42 000, 00.

3. The respondent indicated that he was not desirous of receiving payment of the said amount in cash, as he would rather buy a passenger bus from the appellant and allow set-off to operate. Since stage it was envisaged that the purchase price of the bus would be higher than that of the house, it was orally agreed that the respondent would pay the balance owing to the appellant in cash.

4. As the appellant did not have a suitable bus for sale at the time, one of his relatives found a suitable bus belonging to a third party, which then purchased and sold to the respondent for R55 000, 00.

1997 JDR 0039 p3

Olivier JA

5. As the price of the bus exceeded the price of the stand, it was agreed that a written deed of sale in respect of the stand be drawn up reflecting that the full purchase price of the stand had been paid. The bus was placed in the respondent's possession and an oral arrangement was made for payment by the respondent of the balance of R13 000,00.

6. A deed of sale in respect of the sale of the stand, reflecting the aforesaid agreement, was prepared and subsequently signed by the parties. The relevant terms of the deed of sale read as follows:

'2.

The Purchase Price of the said PROPERTY hereby sold is the sum of R42000 (forty-two thousand rend) which sum the said SELLER hereby acknowledges having received in FULL SETTLEMENT of the Purchase price, from the said PURCHASER, and the said SELLER further acknowledges that the said PURCHASER'S obligation under this Agreement has thus been fully discharged, there being no further requirements to be met by the PURCHASER in this connection, and the said SELLER hereby expressly agrees that full ownership of...