Edwards v Tuckers Land and Development Corporation (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Vermooten J
• Judgment Date: 15 October 1982
• Citation: 1983 (1) SA 617 (W)
• Hearing Date: 29 September 1982
• Court: Witwatersrand Local Division

Vermooten J:

This is an application for an order:

(a)

declaring that respondent's purported cancellation of the deeds of sale relating to erven 810 and 858, now stands Nos 3238 and 3219, Garstfontein Extension 10, district Pretoria, was unlawful;

(b)

directing respondent to transfer the said stands to applicant

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against payment of the balance of the purchase price owing in respect of the said stands, payment of which amounts the applicant hereby tenders.

On 21 August 1972 the late Peter Frank Walter Edwards, as purchaser, entered into two identical deeds of sale with A respondent as seller. The sales related to two separate lots, Nos 810 and 858, in an unproclaimed township on the farm Garstfontein Extension No 10. It was only almost 10 years later, on 17 March 1982, that the township was declared an approved township.

On 18 November 1975 Edwards died and his widow, the present B applicant, was appointed executrix of his estate and the sole beneficiary thereof. The rights under these two agreements constituted the main asset in the deceased's estate. On 2 May 1980 the applicant in her capacity as executrix ceded to herself as the residual heir in the estate the rights of her late husband under the said deeds of sale.

C On 28 July 1980 respondent cancelled the deeds of sale. In the result the purchaser forfeited not only the right to claim transfer of the stands but also suffered forfeiture of all payments made thereunder, amounting to R10 657, ie R5 328,50 in respect of each stand.

The purchase price for each stand was R4 950, payable in D monthly instalments of R49,50, inclusive of capital and interest, on the 7th day of each month, commencing on 7 October 1972. Clause 8 of the schedule to each agreement provided that the purchase price with interest and all other charges was to be paid in full within six years of the date of signature by the purchaser, being 21 August 1972. In the result the full purchase price was to be paid by 21 August 1978.

E Both Edwards, the deceased, and his widow, the applicant, paid all instalments not merely in time but also in advance and were at no time in default of payment of any instalment.

Clause 11.1.2 provided that, if the purchaser failed to pay any F amount payable on due date or committed a breach of any of the other terms or conditions of the agreement, major or minor, and should the purchaser fail to make such payment or remedy such breach within 30 days after written notice given to the purchaser by registered post to his last known residential or business address or handed over to the purchaser and for which G an acknowledgment of receipt had been obtained, informing him of the failure in question and demanding that he carry out the obligation in question within such period, the seller would be entitled to cancel the agreement, to take possession and occupation of the land and to retain all payments made by the purchaser to the seller prior to cancellation.

H Clause 16.2 provides:

"This agreement constitutes the entire agreement between the parties and no representations, warranties or undertakings shall be of any force or effect save as recorded herein. No variation of or addition to this agreement shall be of any force or effect unless reduced to writing and signed by the parties or their duly authorised agents."

Clause 16.3 reads as follows:

"Any indulgence shown, extension given or right waived on the part of the

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seller whether relating to the payment of instalments or any other matter or thing shall in no way operate as an estoppel against the seller or in any way limit its rights hereunder or modify or alter the same and the seller shall be entitled at any time to exercise its rights in terms of this agreement as A though no indulgence were shown, extension given or right waived."

Although respondent duly gave notice of intention to oppose this matter and was represented at the hearing by counsel, it filed no answering affidavits. I therefore accept the evidence adduced by and on behalf of the applicant as correct and undisputed.

On 1 June 1978 the respondent addressed a letter to "Estate B late P F W Edwards, c/o Edward Nathan & Friedland Inc", the attorneys who were handling the estate, saying:

"We confirm herewith that the accounts in respect of the abovementioned two stands (the stands in question) are paid in advance in the amount of R1 117, and that the next instalment will be due during May 1980."

The letter was signed by Mr M D Colville as credit controller C of the respondent.

On 5 May 1980 the applicant made a further advance payment of R800, as reflected in respondent's receipt of that date. This last payment covered the instalments payable on both stands until the end of 1980.

D Statements issued by respondent on 31 March 1980, addressed to estate late P F W Edwards, showed the balance owing on the purchase price of each stand to be R1 476,15. The last statements received from respondent dated 30 June 1980 showed this amount to be R1 104,77 in respect of each stand.

E Notwithstanding the aforegoing, and the fact that respondent had been in communication with the estate through its said attorneys, on 12 June 1980, almost two years after the period of six years had elapsed, respondent addressed two registered letters to the estate Edwards in respect of the stands, stating F that six years had elapsed since the date of the agreements and demanding payment, within 31 days after receipt of each letter, of the amounts then owing in respect of each stand, namely R1 097,13 and that failing payment the agreements would be cancelled and all monies paid to date retained.

The applicant in her affidavit points out that these letters G were addressed to PO Box 3650, Johannesburg, her late husband's postal address reflected in the agreements, which is in fact the post office box number of Commonwealth Development Corporation by whom her late husband had been employed. The registered letters were signed for by Maureen Joan Victor, a receptionist employed by Commonwealth Development Corporation H at the time, during the month of June 1980, and were signed for, according to the affidavit of Miss Victor, only after receiving final notice from the Jeppe Street Post Office, during the second half of June 1980. These letters remained in her possession for some time as she was unable to get in touch with applicant who had been ill. To the best of their joint recollection the applicant collected the letters towards the end of June 1980. The applicant immediately passed them on to her attorney, Mr Bradley, of Edward Nathan & Friedland Inc.

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The applicant deposes that the stands are of great concern to her as they constitute the major asset in her late husband's estate. She had informed Bradley that she wished to obtain transfer of the stands as soon as possible and wanted to make payment of the outstanding balances, which she was in a A position to do, but she was initially advised against doing so pending enquiries being made as to the proclamation of the proposed township. Pursuant thereto the following arrangement was confirmed:

On 27 June 1980 her attorney Bradley wrote to respondent as follows:

B "Your two letters relating to the abovementioned stands dated 12 June 1980, addressed to the estate, have been referred to us for attention.

We confirm the writer's telephone advice to your Mr Karp on or about 19 June 1980, when we advised that, notwithstanding that the agreements of sale by you to the deceased provide for the purchase price to be paid within six years from the date of the C respective agreements, your Mr Colville, on your behalf, assured the writer that that provision of the agreements would not be enforced until after proclamation of the township, because of the moral obligation which you considered you owed the deceased as purchaser.

In this regard we enclose a copy of your letter to us of 1 June 1978 in which you confirm that the next instalment due under the respective agreements would be due during May 1980, notwithstanding that the six year period after the date of the agreements was to expire on 21 August 1978.

D Would you kindly write to us confirming that in the circumstances payment of the purchase price and other amounts due under the respective agreements are not due until proclamation of the township.

Yours...