Govender v Sona Development Co (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Kumleben J
• Judgment Date: 08 November 1979
• Hearing Date: 12 September 1979
• Court: Durban and Coast Local Division

Kumleben J:

This is an application for summary judgment. In his F particulars of claim the applicant alleges that on 19 December 1974 he entered into a deed of sale in terms whereof he purchased a piece of land from respondent. It was described as subdivision 188 on the plan of a township in the course of establishment in accordance with the provisions of the Town Planning Ordinance 27 of 1949 (N) as amended. Upon conclusion G of the contract the applicant took possession of the property and has paid to respondent an amount of R3 425 of the purchase price of R4 900. The particulars of claim state that a period of more than three years has elapsed since the date of the agreement and that the land in question has not yet been declared an approved private township in terms of s 23 (1) of H the said Ordinance. By virtue of these allegations, which are admitted in the answering affidavit submitted on behalf of the respondent, the applicant avers that, by notice given to the respondent on 30 April 1979, he has elected to cancel the agreement and that the respondent is obliged to repay to him the said sum of R3 425 together with interest thereon. For this relief applicant relies on the provisions of ss (b) of s 36 (3), which reads as follows:

'(3)

If prior to the establishment of a private township as an approved private township any land forming part of such private township is sold -

Kumleben J

(a)

the contract of sale shall contain a stipulation to the effect that the said private township has not been declared an approved private township and in the absence of such a stipulation the said contract of A sale shall prior to such declaration be voidable at the instance of the purchaser of such land; and

(b)

the contract of sale shall, whether or not it contains such stipulation, be voidable at the instance of the purchaser if such private township has not been declared to be an approved private township and more than three years have elapsed from the date of such contract, and in either case any B moneys paid to the seller shall become due and payable to the purchaser upon the day on which the purchaser cancels the contract of sale in terms of this sub-section; provided that in the event of the application to establish the private township or the granting thereof lapsing for any reason in terms of this Ordinance, such moneys shall become due and payable to the pruchaser upon the day of such lapsing; provided, further, that the Administrator may in exceptional circumstances extend the aforesaid C period of three years for a further period not exceeding two years.'

(The period of three years was not extended in terms of the second proviso.)

The respondent resists this claim, firstly, on the strength of the stipulation in clause 6 (2) of the deed of sale which states that:

D 'If for any reason the said township will not have been approved by the Administrator of Natal by the end of a period of 48 months after the date of this agreement, the purchaser shall be entitled to cancel this agreement by notice in writing to the seller and upon such cancellation to obtain a refund from the seller, free of interest, of all amounts paid by the purchaser to the seller under this agreement; provided that the purchaser shall conclusively be deemed to have waived such right of E cancellation should he fail to exercise the same within 30 days after the expiration of the said period of 48 months.'

Thus, this provision confers upon the applicant a more restricted right of cancellation, which is forfeited if not exercised within 30 days after the stated period has elapsed. The respondent also relies upon a subsequent F agreement concluded on 18 December 1978 in which the parties agreed, inter alia, to an extension of the period of 48 months, as provided for in clause 6 (2) of the sale agreement, to 60 months. Upon signature of this agreement the applicant paid an amount of R50 to the respondent in reduction of the said purchase price. In the circumstances respondent contends that the right conferred by s 36 (3) (b) of the Ordinance was G forfeited by virtue of what was agreed upon in clause 6 (2), and that any right of cancellation was in any event subsequently lost by the stated variation in the second agreement coupled with the payment of the said R50. In argument counsel regarded each agreement as constituting a 'waiver' of the statutory right. Since any distinction between a H 'contracting out', in this case by the substitution of a contractual right of cancellation, and a waiver (and between the legal nature and consequences of each) is immaterial to the question I am called upon to decide, I too for convenience will use the latter term.

Counsel agreed that the correctness of these contentions depends upon whether it was legally permissible for applicant to waive the right to cancel conferred in s 36 (3) (b). The correct approach to this enquiry has been recently thus restated by KOTZÉ JA in Bezuidenhout v AA Mutual Insurance Association Ltd 1978 (1) SA 703 (A) at 710:

'Even a peremptory statutory provision may be renounced by a person for

Kumleben J

whose benefit it has been introduced. The scope of the rule is stated as follows by Craies on Statute Law 7th ed at 269:

'If the object of a statute is not one of general policy, or if the thing A which is being done will benefit only a particular person or class of persons, then the conditions prescribed by the statute are not considered as being indispensable. This rule is expressed by the maxim of law, quilibet potest renuntiare juri pro se introducto.'

In Ritch and Bhyat v Union Government 1912 AD 719 at 734 - 5 INNES ACJ points out that the rule of our common law is to the same effect:

'The maxim of the Civil law (C 2.3.29), that every man is able to renounce a right...