Sokanyile v Fiphaza

• Jurisdiction: South Africa
• Judge: Dilizo AJ
• Judgment Date: 11 September 2008
• Docket Number: 86/2008
• Court: Transkei Division
• Hearing Date: 07 August 2008
• Citation: 2008 JDR 1252 (Tk)

Dilizo, AJ:

[1] This is an opposed an application in which Applicant is seeking the following relief:

1.1

That the 1st Respondent and anybody whomsoever acting on her behalf be and is hereby interdicted and restrained from selling or disposing in whatever manner the immovable property known as Erf 3962, Mthatha to any other person whomsoever other than 1st and 2nd Applicants until the dispute regarding the sale between 1st and 2nd Applicants and 1st Respondent is settled.

1.2

That 2nd Respondent be and is hereby interdicted and restrained from entertaining any transfer and registration of Erf 3962, Mthatha, until the finalisation of this application.

1.3

That the 1st Respondent be and is hereby compelled to effect the transfer and registration of Erf No.3692 to 1st and 2nd Applicant.

2.

That sub-paragraph 1.1 and 1.2 above operate as an interim interdict/mandamus until the finalization of this application.

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3.

That the 1st Respondent be ordered to pay the costs of this application and that 2nd and 3rd Respondents pay the costs only in the event of them opposing the application.

[2] The rule nisi was granted on 30 January 2008 to operate as interim interdict/mandamus until finalisation of this application. The facts preceding the application arise out of a Deed of Sale entered into between the two Applicants, who are husband and wife, and the 1st Respondent on 22 August 2002 in terms of which Applicants purchased from the 1st Respondent and the latter sold to Applicants house at Erf No. 3962, Mthatha at 68 Dikweni Street, Ikhwezi Township, Mthatha, at a purchase price of R100 000,00 which, sum, would be payable by means of cash on transfer.

[3] An occupation rental clause, in terms of the Deed of Sale is recorded as follows:

"If the date of occupation and possession does not co-incide with the date of transfer, the party enjoying occupation and possession of the property while it is registered in the name of the party, shall in consideration thereof and for the period of such occupation, pay to the

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party occupational rental of nil per month or a pro-rata share thereof for any portion of a month."

Under paragraph 10 of the Deed of Sale, headed "BREACH" it is recorded:

"1.1

In the event of the purchaser failing to fulfill on due date any of the terms and conditions of this Deed of Sale, the seller shall have the right either..

1.1.1

to cancel the sale by registered letter addressed to the purchaser in which event the purchaser shall, at the option of the seller and without prejudice to any other rights which the seller may have, either forfeit all monies paid to the seller or his agent in terms of hereto or alternatively, be liable to the seller in damages.

1.1.2

Clause 16 of the Deed of Sale, headed "SPECIAL CONDITIONS" records:

"Notwithstanding anything to the contrary in this agreement contained this Deed of Sale shall lapse

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after the expiration of 90 days from the date of signature hereof by the seller unless the purchaser shall have paid the purchase price or furnish a guarantee therefore to the satisfaction of the seller's attorneys within the said period of 90 days".

[4] On 9 September 2002 Applicants were advised in writing by Standard Bank that their application for home-loan of R100 000-00 had been approved wherein they were also informed that Christo Barnard Attorneys had been instructed by the bank to attend to the registration of the Mortgage Bond. They were further informed by the bank that the above attorney would contact them in due course to arrange for the signing of the necessary documents.

[5] The Standard Bank further informed Applicants that the transferring attorneys would be Messrs A.M. Ndoni Incorporated. I may place on record at this stage that Applicants had no attorneys of their own and they accordingly fully co-operated with and relied upon A.M. Ndoni Incorporated as if, Mr Ndoni was their instructed attorney. Further, A.M. Ndoni Incorporated were the 1st Respondent's attorneys in the matter.

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[6] Both Applicants made arrangements with Standard Bank wherein monthly repayments of the loan were effected against the Applicants in favour of the bank with effect from 8 April 2003 in sum of R1 389-18 each month which, deductions, were monthly effected until 1st August 2007 with a total credit of R76 404-90 as at 17 August 2007.

[7] Applicants took the Standard Bank letter of approval of their home loan application to Mr Ndoni, immediately after receipt thereof, who informed them that he was satisfied with the letter of approval of their loan of R100 000-00. This letter was infact addressed to the Applicants and not to A.M. Ndoni Inc. Applicants honestly believed that such letter was to the satisfaction of the sellers attorneys, A.M. Ndoni, in compliance with the special conditions as recorded under clause 16 of the Deed of Sale.

[8] Their belief, as afore stated, was further fortified by Mr Ndoni's subsequent conduct of allowing Applicants to take possession and occupation of the house in question which they started to occupy since then todate. In their affidavit evidence Applicants testified that, in view of the high state of disrepair of the house in question, Mr Ndoni exonerated them from paying any occupation rentals. In any

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event, even in terms of clause 9 of the Deed of Sale, Applicants were to pay nil in respect of the occupational rentals.

[9] With advance of time, Mr Ndoni advised Applicants to pay transfer costs of R7 000-00 to Messrs Qina Attorneys which they allege to have paid in 2004 and, in 2006, Applicants were caused to sign transfer documents before Messrs Christo Barnard Attorneys. Despite the above developments it was nonetheless evident that the issue of transfer itself was considerably delayed or too slow due to, among other reasons, Mr Ndoni's long indisposition until death eventually laid its icy hand upon him.

[10] Time progressed but to no avail until Messrs Clayton Mkululi Manxiwa attorneys called upon Applicants to pay further transfer costs to facilitate transfer of the property into their names. Applicants refused to pay further costs, contending that they paid such costs to Messrs Qina Attorneys some time back. Further delay, in transferring the property, continued to show its ugly face unabatedly until August 2007 when Applicants were telephonically threatened with a eviction from the house by one Mr Ntila of Messrs Ntila attorneys from Johannesburg.

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[11] When taking up the matter with King Sabata Dalindyebo Municipality to find out what the position was, to their dismay, they established that Messrs Z.M. Nhlangulela Attorneys were in fact in the process of transferring the property in question to another prospective buyer. Discovery of the above information immediately prompted the institution of the application now under consideration.

[12] I may further place on record that on 26 January 2005, Christo Barnard Incorporated wrote a letter to A.M. Ndoni Inc. where a sum of R1 500-00 was enclosed as a balance of guarantee sent to Messrs Venn Nemeth and Hart on instruction of Standard Bank to attend to the bond cancellation of T.J. Fiphaza. It will be recalled that T.J. Fiphaza is the 1st Respondent and the seller of the property in question.

[13] On the same date Standard Bank wrote a letter to the 1st Respondent wherein they advised him that they were holding the sum of R98 500-00 at his disposal on behalf of both Applicants. The bank further indicated in the letter that the following transactions had to be registered:

(a)

cancellation of all existing bonds over property 3962, Mthatha;

(b)

registration of transfer of the aforesaid property into the names of Malizole Joseph Sokanyile and Nokwakha Kholeka Sokanyile, the Applicants; and

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(c)

registration of a 1st mortgage bond over the aforesaid property in favour of Standard Bank Limited (by Malizole Joseph Sokanyile and Nokwakha Kholeka Sokanyile) for a sum of R100 000-00.

[14] Further, on 26 January 2005, Christo Barnard Incorporated addressed the letter to Venn Nemeth and Hart forwarding a guarantee for the sum of R98 500-00 in respect of cancellation of the bond between T.J. Fiphaza and Standard Bank and the bond Sokanyile and Standard Bank concerning Erf No.3962, Mthatha.

[15] On 24 January 2005 Standard Bank addressed a letter to Meeg Bank Limited advising that, on the instructions received from Christo Barnard Incorporated, they were holding a sum R1 500-00 at Meeg Bank at its disposal on behalf of both Applicants.

[16] It will be recalled that the sums of R98 500-00 and R1 500-00 constitute R100 000-00 which was a home loan in favour of both Applicants. Both the sums of R98 500-00 and R1 500-00 were referred to by Standard Bank in its letter of 24 January 2005 to Meeg Bank Limited and that of 26 January 2005 as an undertaking in favour of A.M. Ndoni attorneys credit account no. 4048210504 held with Meeg

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Bank and the other in favour of the 1st Respondent as the seller. Both payments were effected from R100 000-00 on behalf of both Applicants.

[17] Against this background, I now proceed to deal with arguments advanced by legal representatives of both parties. Mr Mantyi, attorney for the 1st Respondent, in opposing the application argued that the...