Patel v Adam

• Jurisdiction: South Africa
• Judge: Wessels JA, Jansen JA, Rabie JA, Muller JA and Miller JA
• Judgment Date: 08 March 1977
• Hearing Date: 23 November 1976
• Court: Appellate Division

Rabie, J.A.:

This is an appeal against an order of the Transvaal Provincial Division upholding certain exceptions to a B plea. The judgment of the Court a quo (WILLIAMSON, A.J.) has been reported: see Adam v Patel, 1976 (2) SA 801 (T). In what follows, I shall refer to the appellant, Patel, as the defendant, and to the respondent, Adam, as the plaintiff.

The plaintiff instituted an action against the defendant in January 1974 and his particulars of claim, subsequently amended C so as to insert para. 9 thereof read as follows:

"1. Plaintiff is Akbar Adam, a male adult person of 296, D 13th Avenue, Laudium, Pretoria, Transvaal.

2. Defendant is Moosa Patel, a male adult person of 226, 4th Avenue Laudium, Pretoria, Transvaal.

3. On 5 May 1970, and at Pretoria, plaintiff and defendant entered into a written contract in terms whereof plaintiff purported to sell to defendant, who purported to purchase from plaintiff certain freehold plot No. 428, situate in the township of Laudium, City of Pretoria, for a purchase price of R25 000. A copy of the said contract E is annexed hereto, marked 'A'.

4. Pursuant to the said contract, defendant was given occupation of the said plot and defendant does still occupy the said plot.

5. Defendant has paid to plaintiff the sum of R16 000.

6. The said contract is null and void and of no effect in law by virtue of the fact that it does not comply with the F provisions of the Formalities in respect of Contracts of Sale of Land Act, 71 of 1969.

7. In the premises, plaintiff is entitled to the ejectment of G defendant from, and redelivery of, the said plot No. 428, against repayment of the said sum of R16 000.

8. Plaintiff has tendered to defendant repayment of the said sum of R16 000, and has demanded that defendant vacate the said plot No. 428, but defendant has rejected the said tender and has refused to accede to the said demand.

9. Plaintiff was at all relevant times, and still is, the registered owner of plot No. 428.

H Wherefore plaintiff (hereby repeating the said tender) claims:

(1)

an order ejecting defendant from plot No. 428 situate in the township of Laudium, City of Pretoria;

(2)

costs of suit;

(3)

alternative relief".

The agreement between the parties, referred to as annexure "A" in para. 3 of the plaintiff's particulars of claim, reads as follows:

"Agreement entered into by and between Akbar Adam hereinafter referred to as Akbar Adam, and Moosa Mohamed Patel hereinafter referred to as Patel.

Rabie JA

Whereas the said Akbar Adam is the registered owner of a certain freehold plot No. 428 in the township of Laudium, Pretoria, whereupon is being presently constructed a residence as per plans furnished and whereas the said Patel has agreed to purchase same, in its completed form, it is hereby agreed.

(1) That the premises would be handed over to the said Patel on 15 June 1970.

(2) A That the price agreed upon by the parties is a sum of R25 000.

(3) That the purchase price shall be payable in monthly instalments free of interest.

(4) That the transfer shall be given as and when the total purchase price has been paid for."

The defendant excepted to the plaintiff's particulars of claim B on the ground that the pleading

"lacks averments which are necessary to sustain an action in that there is no allegation that the defendant is unable or unwilling to carry out his side of the alleged inchoate agreement"

The exception was dismissed by TRENGOVE, J. The learned Judge's judgment on the matter has been reported: see Akbar v Patel, C 1974 (4) SA 104 (T).

The defendant, before filing his plea, requested the following further information with regard to para. 7 of the plaintiff's particulars of claim:

"Is it alleged that the defendant is unable or unwilling to carry out his side of the contract?"

D The plaintiff's reply was: "Plaintiff makes no such allegation." Para. 2 of the plea admits paras. 3, 4 and 5 of the particulars of claim. The remaining paragraphs of the plea, in so far relevant, read as follows:

"3.

Ad para. 6:

Defendant denies each and every averment contained in this paragraph as if specifically traversed and puts E the plaintiff to the proof thereof.

4.

Ad para. 7:

Defendant denies each and every averment contained in this paragraph as if specifically traversed and puts the plaintiff to the proof thereof.

5.

F Alternatively to para. 4 hereof:

Ad para. 7:

(a)

If the honourable Court should find that the said contract is null and void (which is denied), the defendant avers that he is, and has been at all times, able and willing to carry out his side of the inchoate agreement between the parties.

(b)

G In the premises the defendant denies each and every averment contained in para. 7 of the particulars of plaintiff's claim.

6.

....

7.

Ad para. 8:

Defendant admits the said tender and the said demand H but denies that he is obliged to accede to the said tender or demand.

8.

Ad para.9:

Defendant has no knowledge of the averments contained in this paragraph but does not admit same and puts the plaintiff to the proof thereof."

(I have not quoted para. 6 of the plea because it is not relevant to the present proceedings. It is alleged therein, briefly put, that, even if the contract should be found to be null and void, the plaintiff is not entitled to be given occupation of the property until such time as he has paid to the

Rabie JA

defendant the sum of R2 456 as compensation for necessary and/or useful improvements which the defendant effected to the property.)

In a request for further particulars to the plea, the plaintiff asked the following question with regard to para. 5 thereof:

"Does defendant deny that plaintiff is entitled to the A relief set out in para. 7, even if plaintiff should establish the averment set out in para. 9 of the particulars of plaintiff's claim?"

(The averment in para. 9 of the particulars of claim, it will be remembered is that the plaintiff was at all relevant times, and still is, the registered owner of the property sold.) The B defendant's reply to this question, furnished in para. 1 of his further particulars, dated 6 December 1974, was:

"Yes, provided the honourable Court finds that defendant is, and has been at all times, able and willing to carry out his side of the inchoate agreement between the parties."

On receiving this reply, the plaintiff noted the following C exceptions to paras. 3, 4 and 5 of the plea and para. 1 of the further particulars, dated 6 December 1974:

"1.

In regard to paras. 3 and 4 of the defendant's plea:

The said contract is null and void on the face thereof for the reasons set out in paras. 6 and 7 of plaintiff's particulars of claim. The denials D contained in paras. 3 and 4 of defendant's plea, read together with the admissions contained in para. 2 of defendant's plea, are denials of law and not of...