Modingwane v Mashine NO

• Jurisdiction: South Africa
• Judge: Ledwaba J
• Judgment Date: 29 May 2013
• Docket Number: 36120/12
• Court: North Gauteng High Court, Pretoria
• Hearing Date: 12 April 2013
• Citation: 2013 JDR 1197 (GNP)

Ledwaba J:

[1]

On 7 December 2010 the applicants signed an offer to purchase Stand No 6 Jo Roos Street, Orchards Akasia ("the property") for an amount of R605 000.

2013 JDR 1197 p2

Ledwaba J

[2]

On 13 December 2010 Mighty-Obriane Homes, a company acting on behalf of the 'seller', accepted the offer, on behalf of the second respondent, the seller. See annexure B hereinafter referred to as the first agreement of sale.

[3]

The applicants occupied the property in about December 2010 and started paying rent in January 2011 in the amount of R2000 per month. The applicants are still occupying the property.

[4]

The property is registered in the name of the second respondent and his wife Elsie Lapeng Mashiane who died on 20 March 2009. The second respondent has been appointed as the executer of his wife's estate in terms of the letters of executorship No 1176/2011 dated 21 January 2011. The second respondent and his deceased wife were married in community of property.

[5]

A so-called 'addendum' to the agreement of sale was signed by the second respondent and the first applicant on 5 October 2011 in terms whereof the second respondent in his capacity as executor in the intestate estate of his deceased wife, inter alia, confirmed that:

5.1

he sold the property to the applicant;

5.2

he instructs SFS Attorneys to proceed with the registration of the transfer directly to the applicants;

5.3

the occupational rent was to be paid over to the second respondents Attorney Mundalamo Attorneys;

5.4

transfer was to be effected as soon as possible;

5.5

the respondent's attorney are also administering the estate of the second respondents deceased wife, see annexure E.

[6]

The second respondent is opposing the application on the basis that the first agreement of sale entered into between the second respondent and the applicants in December 2010 is invalid, because the second respondent had not yet been appointed as an executor.

2013 JDR 1197 p3

Ledwaba J

[7]

Applicants alleged that before they occupied the property it was not in good condition. It had been vandalised because it was left vacant by the owners. The condition of the house is noted in annexure C attached to the papers. The applicants further alleged that they fixed and improved the property to be in a good state so that they can improve their chances of success when they applied for a loan. The applicants alleged that they spent about R102 502.00 to fix, repair and improve the property. The second respondent alleged that there were minor damages on the property which would cause the amount of about R2000,00 to fix. However, in annexure E the second respondent agreed that an amount of R95 000 was for improvements to be done by the purchaser.

[8]

The second respondent's defence is further that should the court find that the first agreement of sale and the addendum agreement are valid, he submits that he signed the addendum agreement under false pretence and he believed that he would still be paid an additional amount of R 400 000 by the applicants.

[9]

The gravamen of the main order sought by the applicants is that based on the first agreement of sale the court should order that the property should be transferred or be registered in their names.

[10]

I think the main issues to be decided in casu are the following:

10.1

Is the first agreement of sale valid in law?

10.2

Can the addendum agreement be regarded as a valid sale of contract?

10.3

Can the court grant an order sought by the applicant on the circumstances of this case?

[11]

To properly consider the...