Mamoojee v Akoo

• Jurisdiction: South Africa
• Court: Natal Provincial Division
• Judge: Hathorn JP and Henochsberg AJ
• Judgment Date: 02 October 1947
• Citation: 1947 (4) SA 733 (N)
• Hearing Date: 28 August 1947

Henochsberg, A.J.:

Defendant is the registered owner of certain immovable property in Pietermaritzburg which had been acquired by him in October, 1945, at a price of £900, and which was, at the date of the institution of this action, mortgaged for £600.

In the present action, plaintiff claimed to have purchased the property from defendant and to have delivered to defendant certain promissory notes, some of which had since been redeemed as part-payment of the purchase price. In the declaration the following allegations were made:

(5) On the 14th November, 1946, the defendant agreed to sell to plaintiff the said property for an amount of one thousand five hundred pounds (£1,500).

(6) In view of the fact that defendant would have to pay the Fixed Property Profits Tax on such a sale at a price of one thousand five hundred pounds (£1,500) and to avoid payment thereof it was arranged that the defendant would make a fictitious sale of goods to the plaintiff in the amount of five hundred pounds (£500).

(7) On the 14th November, 1946, such a fictitious sale as aforesaid was made for which the plaintiff received fictitious invoices and in turn gave the defendant five (5) promissory notes of one hundred pounds (£100) each payable to the defendant, the first of which was payable on 5th December, 1946.

(8) On the 5th December, 1946, the plaintiff and the defendant signed a written agreement of purchase and sale in respect of the property described in para. three (3) hereof, the terms of which are set out in a copy of the agreement which is annexed hereto marked 'A'.

The written agreement set out that the purchase price was a sum of £1,000, payable as to £600 by transposition of the existing bond and as to the balance by consecutive monthly instalments of £100 (covered by promissory notes for such amount), the first payment to be made on the 5th January, 1947.

Plaintiff further alleged that the promissory notes referred to in the written agreement had been duly delivered to defendant and that payment of the first promissory note referred to in para. 7 (supra) of the declaration had also been made to defendant. Plaintiff proceeded to allege that shortly after payment of that note it had been agreed between the parties that in respect of the balance of the purchase price (namely, £800) eight promissory notes for £50 each and four promissory notes for £100 each, payable monthly as from 5th January, 1947, would be substituted

Henochsberg AJ

for those referred to in both the written agreement and para. 7 of the declaration.

Fresh promissory notes were, according to the declaration, duly executed and delivered to defendant, who had, however, failed to return to the plaintiff the eight promissory notes of £100 each previously held by him. Plaintiff alleged that four of the promissory notes of £50 each had been duly met by him but that, notwithstanding demand, defendant had refused to sign the necessary documents relative to the transposition of the bond and to the transfer of the property. Defendant was, according to the declaration, therefore, in breach of a condition of the agreement going to its root, in...