Sewpersadh and Another v Dookie

• Jurisdiction: South Africa
• Judge: Streicher ADP, Jafta JA, Maya JA, Hurt AJA and Tshiqi AJA
• Judgment Date: 01 June 2009
• Citation: 2009 (6) SA 611 (SCA)
• Docket Number: 231/08
• Hearing Date: 20 May 2009
• Counsel: M Pillemer SC for the appellants. N SIngh SC for the respondent.
• Court: Supreme Court of Appeal

Sewpersadh and Another v Dookie
2009 (6) SA 611 (SCA)

2009 (6) SA p611

Citation	2009 (6) SA 611 (SCA)
Case No	231/08
Court	Supreme Court of Appeal
Judge	Streicher ADP, Jafta JA, Maya JA, Hurt AJA and Tshiqi AJA
Heard	May 20, 2009
Judgment	June 1, 2009
Counsel	M Pillemer SC for the appellants.; N SIngh SC for the respondent.

Flynote : Sleutelwoorde

Contract — Revival — Requirements — Fresh meeting and concurrence of minds B to restore status quo ante required.

Headnote : Kopnota

The appellants, a married couple, sold certain immovable property to the respondent for R500 000. When the respondent failed to pay the purchase C price within the period stipulated in the agreement, the appellants gave the respondent written notice to rectify the breach in terms of the agreement, and, when payment was not forthcoming, they applied in the High Court for orders declaring the agreement to have been cancelled and evicting the respondent from the property. The application was dismissed on the basis that, although the agreement had been validly cancelled, it was D subsequently revived by the parties' conduct and that such revived agreement did not have to meet the formalities contained in the Alienation of Land Act 68 of 1981 for its validity. The facts upon which the High Court found the agreement to have been revived were that the appellants had requested a sum of R50 000 from the respondent, and the respondent had paid them the sum of R30 000, 'in respect of the purchase price'; the appellants' E failure to tender the return of the additional payments made by the respondent after cancellation of the agreement and the respondent's lengthy delay of ten months in filing his answering affidavit. The appellants appealed to the Supreme Court of Appeal, where it was argued for the respondent that the cancellation was invalid because the letter of demand failed to specify the breach on which the cancellation was founded, namely F a failure to pay the outstanding balance within 24 months, and thus did not comply with the provisions of the breach clause of the agreement. The same argument had been raised in the High Court, but was rejected on the basis that, notwithstanding the defect in the letter of demand, the appellants' reliance on the breach in their founding affidavit was sufficient.

Held, as to the letter of demand, that it was clear from the demand that the G breach alleged was the failure by the respondent to pay the full purchase price. The respondent knew that at least R500 000 had to be paid within 24 months and that he had not done so. To that extent it would have been clear to him what the breach was that the appellants required him to remedy. (Paragraph [15] at 616A - C.)

Held, further, as to revival, that an agreement to revive required a fresh meeting H and concurrence of the minds of the parties to restore the status quo ante. No basis had been laid in the affidavits for a finding that there was consensus between the parties that the agreement be revived. The respondent not only failed to allege such an agreement, but could not do so in the light of his denial that he had breached the agreement and that the agreement had validly been cancelled. Moreover, the second appellant was I also a party to the agreement of sale and there was no evidence whatsoever of her consent to the revival of the agreement. Finally, in the absence of any reasons for the delay, the late filing of the answering affidavit could not found a finding that the parties had concluded an agreement to revive. (Paragraphs [16] - [17] at 616D - F.) Appeal upheld.

The decision in Sewpersadh and Another v Dookie 2008 (2) SA 526 (D) reversed. J

2009 (6) SA p612

Cases Considered

Annotations: A

Reported cases

Desai v Mohamed 1976 (2) SA 709 (N): dictum at 712H - 713D applied

Neethling v Klopper en Andere 1967 (4) SA 459 (A): dictum at 466C - 467D applied

Sewpersadh and Another v Dookie 2008 (2) SA 526 (D): reversed on appeal B

United Bioscope Cafes Ltd v Moseley Buildings Ltd 1924 AD 60: dictum at 67 - 68 applied.

Case Information

Appeal from a decision in the Durban High Court (Swain J). The facts appear from the reasons for judgment.

M Pillemer SC for the appellants. C

N Singh SC for the respondent.

Cur adv vult.

Postea (June 1). D

Judgment

Maya JA:

[1] The appellants, a married couple, are the registered owners of immovable property situated at 19 Inwabi Road, Isipingo Rd, KwaZulu-Natal, E also known as Lot 60, Parukville (the property). On 7 October 2003 they concluded a written agreement with the respondent for the sale of the property in terms of which the respondent was given possession and occupation of the property upon his signature. Consequent to the respondent's failure to pay the purchase price within the period stipulated in the agreement, the appellants sought an order in the F Durban High Court (Swain J) declaring the agreement to be cancelled, evicting the respondent from the property and ancillary relief.

[2] The court below refused the application on the basis that, although the agreement had been validly cancelled, it was subsequently revived by G the parties' conduct and that such revived agreement did not have to meet the formalities contained in the Alienation of Land Act 68 of 1981 for its validity. [1] With the leave of the court below the appellants now appeal against its judgment that the agreement had been revived.

[3] Briefly stated, the background facts of the matter are as follows. The H appellants were in a precarious financial position and faced a looming threat by their local authority to sell the property in execution to discharge the substantial...