Kadwa NO v Standard Bank of South Africa Limited
| Jurisdiction | South Africa |
| Judge | Sishi J |
| Judgment Date | 30 October 2013 |
| Docket Number | 8054/2011 |
| Court | KwaZulu-Natal High Court, Pietermaritzburg |
| Hearing Date | 26 June 2013 |
| Citation | 2013 JDR 2719 (KZP) |
Sishi J:
Introduction
The applicants seek an interim relief, interdicting the first and/or second respondents from transferring certain immovable property to any person or legal entity pending the final determination of an action to be instituted by the applicants within ten (10) days of the grant of any order for transfer of the said property into the name of the Trust of which the applicants are the trustees.
The first and second respondents oppose the relief sought by the applicants and seek an order that the application be dismissed with costs.
2013 JDR 2719 p2
Sishi J
The third respondent is not opposing the application.
The property which is the subject matter of this application is fully described as:
"Remainder of portion 54 of the farm Geelhoutboom No.982, registration Division FT, Province of KwaZulu-Natal, in extent: 17.7117 hectares" (hereinafter referred to as the "property").
Background
The following facts are either common cause or not in dispute:
On 3 December 2009, the applicants concluded a purchase and sale agreement with the first respondent. This agreement is annexure "A" to the founding affidavit. The applicants were the purchasers and the first respondent was the seller of the immovable property in question.
The purchase and sale agreement contained a suspensive clause in clause 12 thereof.
The suspensive clause of the agreement was that the applicants would pay a deposit of R90 000,00 and raise a guarantee in the sum of R810 000,00 within 14 days of signature of the agreement.
The applicants did not comply with the suspensive condition of the agreement within the time frame referred to in clause 12 thereof.
There was no provision made for the extension of the 14 day period to fulfil the suspensive condition when the agreement was still extant.
2013 JDR 2719 p3
Sishi J
On 25 January 2010, Albaraka Bank sent a letter to the first respondent informing them that there was sufficient funds in an account held with it by the first applicant, in the sum of R900 000,00 and that the account was still open as at the said date.
On 29 January 2010, the first respondent wrote to the second respondent and instructed them to proceed urgently with the transfer of the property in terms of the agreement. First respondent further enclosed the signed agreement and bond grant.
Issue for determination
The issue to be determined in this matter is whether the Agreement of sale marked annexure "A" in the applicants' founding affidavit is extant or whether it is void ab initio with effect from fourteen (14) days of signature of the agreement, i.e. e December 2009.
The Merits
It was submitted on behalf of the applicants that as at 29 January 2010, the first respondent did not rely on the suspensive condition as contained in clause 12 of the agreement, as it allowed for the late serving of the bank's letter of confirmation of availability of funds. Although, technically the letter was not a bank guarantee, the first respondent accepted that the letter was sufficient in order to proceed with the sale and transfer of property.
2013 JDR 2719 p4
Sishi J
The second respondent proceeded with the transfer of the property into the name of the trust. The second respondent continued to give effect to the transfer to the extent that it received a transfer duty clearance from the Receiver of Revenue.
The second respondent then applied for rates clearance certificate. The said certificate could not be obtained, as the plans and engineers approval for the improvements to the property from the Municipality were not approved. The applicants were advised that in order to obtain the rates clearance certificate, the municipality required a stability report from an engineer on all structures, as the property was showing signs of instability. The stability report could not be obtained.
First respondent's opposition to the relief sought is reliance on the non-compliance with the suspensive condition and further that any action on the part of the second respondent, after the period mentioned in the suspensive condition was a misapprehension of the correct status of the agreement.
It was submitted on behalf of the applicants that the author of the letter representing the first respondent clearly instructed the second respondent to effect transfer of the property into the name of the trust. The said respondents and more specifically the first respondent, is aware that the author of the said letter was informed by the first respondent that the purchase and sale agreement did not contain the correct description of the property. The aforesaid was common cause and the agreement was
2013 JDR 2719 p5
Sishi J
accordingly amended to correct the description of the property by way of an addendum.
It was further submitted on behalf of the applicants that the agreement was signed in December, the author of the letter informed the first applicant that due to the lateness in the year, the agreement would be amended in January. It was further brought to the author's attention that a loan was no longer required in order to purchase the property, as the trust had the full purchase price in the bank account with Albaraka Bank. In January 2010, the author informed first applicant that he should accordingly send her the letter from Albaraka Bank confirming that the account was in operation and that the funds were available. It is for...
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