DA Mata v Otto, NO

• Jurisdiction: South Africa
• Judge: van Blerk JA, Wessels JA, Potgieter JA, Jansen JA and Kotzé AJA
• Judgment Date: 02 June 1972
• Citation: 1972 (3) SA 858 (A)
• Court: Appellate Division

Van Blerk, J.A.:

This is an appeal from a Full Bench decision of the Transvaal Provincial Division, reported at 1971 (1) SA 763, dismissing H an appeal from a judgment of THERON, J., sitting in Chambers in the Witwatersrand Local Division. On motion proceeding THERON, J. granted an ejectment order in respect of an agricultural lot situate in the district of Germiston, against the appellant on the application by the respondent, the executrix testamentary in the estate of the late Matilda Catherine Hancock, who died on 15th January, 1969 and who is hereinafter referred to as the deceased. It was held by both Courts, inter alia, that the affidavit evidence deposed to by the appellant does not justify the conclusion that an alleged

Van Blerk JA

oral agreement between the appellant and the deceased was arrived at. The appellant relies on such an agreement for not regularly paying certain monthly instalments payable to the deceased in terms of the A existing written contract between them. For the purpose of this judgment it will be assumed without deciding that oral evidence to prove such an agreement is admissible.

BOSHOFF, J., in the judgment of the Court a quo, set out fully the facts but, as the appellant contends that on all the issues a serious dispute B of fact, which cannot be determined without the aid of oral evidence, is apparent from the papers and that therefore the respondent should not have resorted to motion proceedings, it will be necessary for the purposes of this judgment also to set out somewhat fully the affidavit evidence.

On 14th October, 1964, the deceased sold the property for R12 000 to the C appellant in terms of an agreement of sale which was reduced to writing as was required by sec. 1 of Act 68 of 1957. Occupation of the property was given to the appellant while the deceased remained the registered owner. The purchase price had to be paid as follows: R600 on the signing of the agreement and the balance plus interest thereon in monthly D instalments of R200. In terms of clause 17 of the deed of sale the deceased was entitled forthwith to cancel the sale should the appellant fall in arrear with payment of instalments for a period of fourteen days from the due date thereof. The appellant paid all the instalments, except the first two, irregularly; up until 30th May, 1967, only twelve instalments were paid, leaving nineteen in arrear. On 15th November, E 1967, the deceased cancelled the lease. In reply to the letter of cancellation the appellant's attorneys wrote to the deceased's attorneys on 20th November that she was not entitled to cancel the lease as the appellant had

'fully performed his obligations in terms of the agreement in a substituted manner which was agreed upon between the parties'.

In the same letter the appellant's attorneys confirmed a telephone F conversation with the deceased's attorneys advising that the appellant on 18th and 20th November interviewed the deceased when

'it was agreed that the appellant could perform his obligations in terms of the agreement in a further substituted manner',

namely as follows:

'It was agreed that our client shall pay the balance owing under the G agreement plus interest as to R100 not later than 30th November, 1967, R800 by not later than the 30th December, 1967, and thereafter monthly instalments of R200 from 31st January, 1968, provided, however, that the full balance shall be paid by not later than 31st December, 1968.'

In reply to this letter the deceased's attorneys on 6th December wrote to the appellant's attorneys informing them of the deceased's denial of the allegation that H

'the agreement was substituted or amended in any manner whatsoever'.

It was admitted however that the appellant interviewed the deceased on 18th and 20th and suggested certain propositions to the deceased which she turned down as the sale had already been cancelled. According to the deceased the appellant on 2nd December again interviewed her with a view to discussing the matter but she was not prepared to enter into any discussions. The appellant had in the meantime sent a cheque for R1 000 to the deceased's attorneys, which

Van Blerk JA

was returned, with the warning that, if the appellant did not vacate the property forthwith, proceedings for his ejectment would be taken. On 22nd December the deceased caused a summons to be issued out of a magistrate's court claiming an ejectment order against the appellant. An A appearance to defend was entered whereupon the deceased applied for summary judgment. The appellant filed an answering affidavit setting out the facts on which he based the exceptio doli. The application was refused and leave to defend was granted. The appellant filed a plea repeating substantially the same allegations set out in his affidavit. B To this plea the deceased unsuccessfully excepted. Before the case was heard the deceased died. The respondent thereupon withdrew the action and decided to proceed afresh in the Supreme Court as she considered it was clear that in view of the amount involved any judgment of the magistrate would be taken on appeal.

C The allegations on which the appellant based his defence appear from the papers filed in the magistrate's court, namely, the answering affidavit in the application for summary judgment and the subsequent plea, both of which the appellant confirmed in his answering affidavit to the founding affidavit in the present proceedings. In these documents D the appellant alleged that the deceased had encouraged him to develop the property for the purposes of using it for market gardening and that as consideration for his improving the property he would be relieved of the obligation to pay the instalments each month; that he could pay them

'as and when he could do so - as and when funds were available to him';

E that acting in the belief that the deceased would permit him to pay as he can, he, to the knowledge of the deceased, invested money in the development and improvement of the property to the extent of R18 000 and continued to pay instalments irregularly; that the deceased did not at any time, until he received the letter of cancellation on 15th November, F 1967, inform him that she was requiring him to comply with his obligation in terms of the deed of sale. In addition to the confirmation of the aforegoing allegations the appellant added in his answering affidavit that the deceased said that irregular payments suited her as she would be getting a higher interest on outstanding instalments than she would get if she invested the proceeds of instalments in a building G society. It is submitted on behalf of the appellant that, in the premises, the deceased acted unconscionably with great inequity to him, and that therefore, although the contract is required by law to be in writing, the defence of the exceptio doli is on the facts available to him. As an alternative it is contended that the cancellation H clause - i.e. clause 17 of the deed of sale - is a penalty within the terms of sec 1 of the Conventional Penalties Act, 15 of 1962.

Clause 17 reads as follows:

'Should the purchaser fail to comply with any one or more or all the terms and conditions of this deed of sale, and more particularly, should default be made by the purchaser at any time in the payment of interest due or any other amount that may fall due under this deed of sale, and be in arrear for a period of 14 (fourteen) days from the due date thereof, the seller shall, in addition to all or any of her other legal rights, have the further right forthwith

Van Blerk JA

to declare this agreement cancelled, by written notice addressed to the purchaser at the property, and to recover from the purchaser all the arrear instalments, interest or other moneys; and further, all amounts on accounts of the purchase price and interest which may have been paid by the purchaser prior to the date of such default shall be forfeited to A the seller and remain her property as ascertained and liquidated damages, and in addition the seller shall have the full right to take immediate possession and occupation of the said property in the same good order and condition in which it was delivered to the purchaser, together with all improvements thereon without payment of any compensation whatsoever. Any extensions of time granted for the making of any payments in arrear or other indulgence or concession granted shall not prejudice any rights of the seller under this agreement, to B insist upon payment being made on the stipulated dates.'

As the deceased in the magistrate's court applied for summary judgment and, when that failed, excepted to the plea as bad in law, she apparently relied only on the contention that oral evidence to vary the deed of sale is inadmissible. In addition to a defence on the merits, C she again relies in the present proceedings on the same defence. The founding affidavit states that the appellant cannot lead evidence of an oral variation of the terms of a written agreement of sale of immovable property, and that moreover clause 11 of the deed of sale expressly provides:

'This deed of sale constitutes the entire contract between the parties hereto and includes all terms and conditions, suspensive or D resolutive, agreed upon between the parties and cannot be varied except in writing.'

As already indicated it is not necessary for the purpose of this judgment to decide this legal point.

As to the merits the respondent states in the founding affidavit that as a result of the irregular payments of instalments the deceased on three E occasions - it was on 14th October, 1966, 16th April, 1967, and 22nd May, 1967 - wrote to the appellant calling upon him to make regular payments, but appellant failed to comply with these demands. Duplicate originals of these letters in the deceased's handwriting and signed by her were made available. The...