Editorial note: Certain information has been redacted from this judgment in compliance with the law.
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GQEBERHA)
CASE NO: 158/2022
In the matter between:
BEAUTY NONZIMA NXAKO-BONKO NO Applicant
And
XOLANI ESHWELL MPOLONGWANA Respondent
_____________________________________________________________
JUDGMENT
_____________________________________________________________
Zono AJ
Introduction
[1] In this application the applicant seeks to enforce a term agreement. A term agreement that is sought to be enforced is in relation to the payment of a purchase price of an immovable property.
[2] On 28th February 2019 a written agreement was duly concluded between Noneta Netty Nxako (the deceased) and Xolani Eshwell Mpolongwana, the respondent. Noneta Netty Nxako, before her demise, sought to sell her immovable property situated at […] to the respondent in the amount of R 260 000.00. The purchase price or balance thereof would be paid directly to the seller by the purchaser.1 Upon breach of contract the defaulting party would be entitled to a written notice affording him/her an opportunity to remedy his/her breach After the expiry of seven (7) days of receipt of notice, the aggrieved party would be entitled, without further notice, to cancel the agreement or claim specific performance of any obligation.2
[3] The applicant contends that after the deceased Noneta Netty Nxako met her demise, she was appointed in terms of section 18(3) of Administration of Estates Act No 66 of 1965 (as amended) to take control of the assets of the Estate of the deceased who died on 02nd January 2021. Letters of Authority were issued in applicant’s favour on 14th January 2021. The applicant was further authorized to pay the debts of the estate and to transfer the residue of the estate to the heirs entitled thereto by law.
[4] In this context is expedient to repeat verbatim the contents of paragraph 1 of the notice of motion, which is worded as follows:
“1. An order directing the respondent to pay to the applicant an amount of R260 000.00 (Two Thousand and Sixty Thousand Rands) as purchase price for an immovable property situated at […]and in terms of deed of sale concluded between the respondent and Noneta Netty Nxako.
2. That the respondent be and is hereby ordered to pay the costs of this application on an attorney and client scale, jointly and severally, the one paying the other to be absolved, such costs to include the costs attendant upon the employment of two counsel; and
3. That the applicant be and is hereby granted any further and / or alternative relief as the above honourable court may deem fit.”
[5] From the onset I must indicate that it will be impossible to direct the respondent to pay the purchase price in terms of the deed of sale concluded between the respondent and the deceased. It is so far obvious reason that the written agreement or deed of sale provided for payment of the purchase price directly to the seller, who is now no more. If this application succeeds payment can only be in terms of the applicable law, as it is impermissible for this court to order an impossibility or grant unenforceable orders. It is trite that all orders of court must be certain and be capable of enforcement.
[6] The applicant concludes her case by contending that no payment in terms of the written agreement or deed of sale has been made by the respondent. The respondent has breached a material term of the agreement. Consistent with the agreement3, a notice dated 2nd November 2020 was issued to the respondent advising him of his breach and further demanded that the breach must be remedied by making payment within seven (7) days of receipt of the notice. In the same notice the respondent was advised that his failure to remedy the breach would result in the applicant approaching this court for inter alia specific performance.
[7] In paragraph 13 of the founding affidavit the applicant states as follows:
“On 25th September 2020, my attorneys of record addressed a letter of demand, demanding that the respondent pays the full purchase price within seven (7) days. Notwithstanding demand, the respondent has failed to pay the purchase price. I annex hereto marked “4” a copy of the letter of demand which was addressed to the respondent.” The letter attorneys attached to the papers is dated 02nd September 2020. It is common cause that reference to 25th September 2020 is a date when the notice was given. There is no dispute in the papers about the existence, the contents and the fact that the notice was received by the respondent. Either response nor reaction has been forthcoming or shown by the respondent to the said letter.
[8] The respondent, having been faced with this case opposed the application and posited the following factual position on his answering affidavit, much constituted his defence.
[9] The applicant is respondent’s aunt, and the deceased is respondent’s grandmother, whereas the applicant is deceased daughter. The respondent grew up with other children, his cousins, in the same property with the deceased. The respondent was one who was, after having been asked by his grandmother in 2013, taking are of the deceased as the applicant was misusing deceased money. He states that there was no meangfully relationship between the applicant and the deceased as applicant only came when the deceased health was deteriorating. The respondent was responsible for the entire household including building a backroom or flat, paying Municipal rates and groceries.
[10] The deceased often expressed a wish that the immovable property may remain a family home and she wanted the respondent, as her eldest grandchild, to have the property. In pursuance of that wish the respondent and the deceased approached attorneys on 28th February 2019 which date happens to the date of agreement for an advice.
[11] The respondent and the deceased were advised and were given three options from which to choose. The first option given to them was that the deceased would execute is Will in terms of which the respondent is appointed to be the one entitled to the house. That option did not find favour of the deceased as she wanted the house to be transferred to the respondent. The second option was a donation, but because of tax implication the deceased refused accept that option. The third option was the sale agreement which option found favour of the deceased. The respondent concludes by saying it was never a deceased intention to sell the immovable property to him,
[12] The respondent contends that the continued to stay at the house (immovable property) after registration of the house to him and continued the way he was doing before. He took care of the deceased, her grandchildren, renovated the house and paying Municipal Rates. The applicant came to stay into the house in question in February 2019 when the deceased health was deteriorating and in March 2019 the respondent moved out to his house at Kwa Dwesi, Port Elizabeth. Nonetheless the respondent continued with what he was always doing.
[13] He further contends that the applicant chased his cousins to the back room or flat and that did not sit well with the deceased as the house had become a family home. The applicant brought fraud charges against the respondent apparently arising from the same agreement. In a nutshell the respondent contends that the immovable property was not meant to be sold. The respondent relies and refers to an attached affidavit of Ms Thozama Tofile from BLC Attorneys who were the attorneys drawing up the deed of sale. I will deal the affidavit in the course of this judgment.
[14] The above represents the fair summary of respondent’s case about the conclusion and existence of the agreement. The squabbles between the applicant and respondent during and after the funeral; and who contributed to the funeral of the deceased is far too remote to the issues for determination. Equally respondent’s unsuccessful queries to the Master’s office about and surrounding the appointment of the applicant as the estate representative in terms of section 18(3) administration of estates is irrelevant for purposes of determining this matter.
Common Cause Facts
[15] The existence of a deed of sale or written agreement concluded on 28th February 2019 is not in dispute. It is not in dispute that on 28th February 2019 the parties agreed to each other on the sale of the immovable property referred to in the preceding paragraphs. The purchase price or consideration agreed upon was R260 000.00. It is not gainsaid that the respondent has not paid the purchase price, notwithstanding that the property was transferred to him and the registration of the immovable property was effected in terms of the same written agreement or deed of sale. The deed of sale or written agreement was partly enforced and implemented when the property was registered and transferred into respondent’s name. It is the reciprocity of that enforcement and implementation that is subject matter of the present proceedings.
Discussion
[16] The first part of call when dealing with alienation of land is the provision of alienation of land act. Alienation of Land Act 4 provides that :
“No alienation of land after the commencement of this section shall, subject to the provisions of section 28, be of any force or effect unless it is contained in a deed by alienation signed by the parties or their agents acting on their written authority.”
[17] Wallis JA in Endumeni Municipality5 held as follows:
“[18] Over the last century there have been significant developments in the law relating to the interpretation of documents, both in this country and in others that follow similar rules to our own. It is unnecessary to add unduly to the burden of annotations by trawling through the case law on the construction of documents in order to trace those developments. The relevant authorities are collected and summarised in Bastian Financial Services (Pty) Ltd v General Hendrik Schoeman Primary School.The present state of the law can be expressed as follows. Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors.15 The process is objective not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation. In a contractual context it is to make a contract for the parties other than the one they in fact made. The ‘inevitable point of departure is the language of the provision itself’, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.”
[18] In interpreting the provision of section 2(1) of Alienation of Land Act 68 of 1981 we also need not to loose sight of the purpose of the provisions. It must be interpreted purposively.6Van Zyl ADJP (as he then was, now DJP) in the full court judgment of Gugu 7eloquently explained the purpose of the provision as follows:
“25. The purpose of the formal requirements in section 2(1) of the Alienation of Land Act is to prevent uncertainty, disputes and malpractices in transactions relating to land.”8
[19] I find solace on this authority because the very situation facing this court is prevented by the provision referred to above uncertainty dispute are sought to be prevented by this provisions. The empowering provision requires, in peremptory terms that the deed of alienation must be signed by the “parties” or the agent’s acting on their authority. Once that is done the purpose of the contract is articulated and the intention of the parties is certainly ascertained. In Casu the deceased and the respondent are signatories in their deed of alienation, which is often called a deed of sale constituting a written agreement of the parties. The definition of alienation in section 1 of the Act includes the sale, donation and exchange of land.
[20] Where parties who have the required intention agree that one will make something (the merx) available to the other in return for the payment of a price (pretium) the contract is a sale. In section 2(1) of the Alienation Land Act the legislature has deemed it appropriate to prescribe formalities in respect of the alienation of land. In order to be of “force and effect” any contract for sale a land must in writing and contained in a document or documents, the so called deed of alienation, and signed by each party or his agent acting on his written authority.9 What this means in effect is that where the contact is one for the sale of land the following must appear “ ex facie” the deed of alienation: the identity of the seller and the purchaser; the essential terms of the sale, i.e the price, and the subject matter of the sale; the other material terms of the agreement which the partied have agreed upon; and the signature of each of the parties to the agreement, or their agents.10
[21] The doctrine of privity of contract prevents parties who are not privy to the contract to be bound by the contract. Positively put, doctrine of privity of contract requires that parties who are parties to the contract be bound by the terms thereof. Equally contractual principle of “pacta sunt servanda” requires that contracts be enforced.11
[22] As to the terms of the contract, it is trite that words should be given meaning and that no word should be ignored, or treated as tautologous or superfluous12, as that would militate against a longstanding precept of interpretation that every word must be given a meaning and that no word should be ignored, treated as tautologous or superfluous.13
[23] The Preamble of the deed of sale records the seller (the deceased) as the registered and beneficial owner of the property with its improvement.14 Having recorded the deceased as a beneficial owner of the property the parties record the following in paragraph B and C of the Preamble.
“B. The seller has agreed to sell and the purchaser has agreed to purchase from the seller the said property.
C. The parties are desirous of recording the various terms and conditions relating to the said sale.”
[24] From this it is plain that the parties intended to enter into a commercial enterprise. South Africa Concise Oxford Dictionary defines the word beneficial in two meanings “2 favourable or advantageous. 2 Law of or relating to rights to the use or benefit of the property, other than legal title.” The word beneficial denotes that the seller intended to gain benefit and advantage, and she wanted the contract to be favourable to her. The kind of benefit that would flow form the contract is set out in the body of the contract.
[25] At Clause 1.2 .4 the parties record words purchase price in Caps locks. Next to the words is the amount of R260 000.00. In Clause 3 the parties record the following.
“2 Terms of Payment
3.1 The purchase price/ balance of the purchase price shall be paid by the purchaser to the seller directly.”
For all intents and purposes the deceased intended to gain advantage and benefit of a fixed or prescribed purchase price from the deed of sale. It is only in that way that the contract would be favourable to her. The words beneficial intended to place the deceased as a beneficiary of the contract in the manner where she would be paid an amount of R260 000.00for her immovable property.
[26] Clause 7 of the deed of sale reads
“7 Payment of costs
7.1 The transfer costs, transfer duty or VAT (whichever is applicable) and expenses of this agreement shall be paid by the purchaser upon request.”
This too, places the purchaser in the position of a payer whereas the seller is prepodiently placed in the position of an advantage and benefit in relation to payments. The deed of sale intended to work moretorily in favour of the decease. At no stage was it intended that the deceased would be a looser or a party who losses out and experience a disadvantage as a result of the contract of sale of her property.
[27] To seal it off, parties agreed to Clause 9 of the deed of sale.
[28] Clause 9.4 provides as follows:
“9.4 No latitude or extention of time which may be allowed by the seller to the purchaser in respect of any payment, fulfilment of any obligation provided for herein, or ……. matter or thing which the purchaser is bound to perform or observe in terms hereof, shall under any circumstances be deemed to be a waiver of the settler’s rights at any time and without notice to require strict and punctual compliance with each and every provision or term hereof.” Strict compliance with the provisions of the Contract is expressly contemplated by the Clause.
[29] Reading this sub clause I have no doubt in my mind that payment of the purchase price and any other payments contemplated by the contract were obligations lying ahead to be fulfilled by the purchaser. The use of seller rights in this sub clause includes receipts of purchaser price from the respondent. The respondent, the purchaser is placed in the position of a party who has obligation, inter alia, to pay and to fulfil seller’s rights. The words appearing in the sub clause and in the entire contract are not decorative. They meant to create rights and obligations. The purchaser is obliged to strictly comply with any and every provision affecting his obligations.
[30] Clause 9.1 to 9.3 are couched in the following terms
“9.1 This document constitutes the sole record of the agreement between the parties.
9.2 No party shall be bound by any express or implied term, representation, warranty, promise or the like, not recorded herein.
9.3 No addition to, variation or consensual cancellation of this agreement shall be of any force or effect unless in writting, signed by or on behalf of the parties.”
[31] Clause 9.1 characterises this agreement or deed of sale as the sole record of the agreement between the parties. In addition, thereto clause 9.2 records that parties are not bound by what is not recorded in the deed of sale. Clause 9.2 is couched in a negative form to denote that the provision is peremptory. Clause 9.1 is couched in exclusive and restrictive terms (sole to mean only) which language is indicative of the peremptory nature of the provision.15Peremptory provision require exact compliance for it to have the stipulated legal consequence,16 Exact compliance with the peremptory provisions of the deed of sale was intended by both parties. An alleged promise of not paying the purchase price is not binding as it is not recorded in the deed of sale.
[32] On this subject I find that there is no room for deviation from the peremptory provisions of the deed of sale. The contract entered into by the parties on 28th February 2019 is enforceable by this court.
Competence of the relief sought in paragraph 1 of the notice of motion.
[33] It is common cause that the seller Noneta Netty Nxako has become deceased as alluded to above. Payment to be made directly to her as the contract provides is ipso facto impossible. However, it is also common cause that the applicant was appointed in terms of section 18(3) of Administration of Estates Act 66 of 1965. It stands to reason that payment can only be made in terms of this Act. In what follows I deal with provisions of section 26 and 28 of Administration of Estate Act 66 of 1965.
[34] Section 26(1) of Administration of Estates Act 17 provides as follows:
“Immediately after letters of executorship have been granted to him an executor shall take into his custody or under his control all the property, books and documents in the estate and not in the possession of any person who claims to be entitled to retain it under any contract, right of retention or attachment.”
[35] Section 28(1) of the same Act provides as follows:
“(1) An executor-
(a) shall, unless the Master otherwise directs, as soon as he or she has in hand moneys in the estate in excess of R1 000, open a cheque account in the name of the estate with a bank in the Republic and shall deposit therein the moneys which he or she has in hand and such other moneys as he or she may from time to time receive for the estate;
(b) may open a savings account in the name of the estate with a bank and may transfer thereto so much of the moneys deposited in the account referred to in paragraph (a) as is not immediately required for the payment of any claim against the estate;
(c) may place so much of the moneys deposited in the account referred to in paragraph (a) as is not immediately required for the payment of any claim against the estate on interest-bearing deposit with a bank.”
[36] Section 1 of the Act defines “letters of executorship” to include any document issued or a copy of any such document duly certified by any competent public authority in any estate by which any person named or designated therein as authorized to act as the personal representative of any deceased person or as executor of the estate of any deceased person. This definition is broad enough to include applicant’s letters of authority. Executor is defined in Section 1 of the Act to mean any person who is authorized to act under letters of executorship granted or signed and sealed by a Master or under an endorsement made under section fifteen. Applicant’s letters of Authority was signed and sealed by the office of the Master, Port Elizabeth on 14th March 2021. Accordingly, the applicant’s exercising duties of an executor as referred to in section 26 and 28 of the Act .
[37] The applicant instituted the instant proceedings in her capacity as an executor of the estate of the late Noneta Nelly Nxako who passed away on 02nd January 2021. The money or debt claimed in the notice of motion is due, owning and payable to the deceased estates. An order directing payment of the debt in the circumstances would direct that the debt or money to be payable to the estate account opened in terms of section 28 of the Act.
Conclusion
[38] The respondent is undoubtedly indebted to the deceased estate in the amount of R260 000.00 which is the purchase price admittedly not paid by the respondent to the deceased during her lifetime in terms of the contract of sale. I reject the version of the respondent as an afterthought. Respondents reliance on the so called affidavit of Ms Tofile which is not even attested to in terms of the regulations governing the administration of an oath or affirmation 18 us misplaced. That document lacks the probative value and falls short of becoming an affidavit. However, the same document does not support respondent’s case.
[39] Adverting to the document penned by Tozama Asanda Tofile who claim to have consulted with the deceased and the respondent, I wish to take cognizance of paragraph 6 thereof which reads as follows:
“6. The parties they advised that they will pay each other directly to their account as it also appeared on our agreement of sale of residential property.” (all sic) What is immediately discerning from this paragraph is that payment of a purchase price was discussed and was agreed upon that it will be made in terms of the agreement of sale. There is no suggestion that payment of a purchase price would not be made. To the contrary, it is plain that payment is was meant to be made in terms of the deed of sale.
[40] Lastly, a letter of demand dated 02nd November 2020 was received by the respondent on 25th November 2020 when the deceased was still alive. No reaction of any kind was made to that demand. It could reasonably have been expected that a surprised person receiving a shocking demand would approach his grandmother, the deceased and share the sad news of a demand to pay an amount of R260 000.00 that was allegedly agreed not to be paid. That did not happen and respondent’s Counsel was unable to explain that failure. That inexplicable conduct adds to many reasons why respondent’s version cannot be believed.
[41] In the answering affidavit the respondent raises a point in limine, which I regard as unmeritorious ., The short version of this point is that this is a claim for payment of R260 000.00, which is a claim sounding in money should have been brought by way of an action and not in motion proceedings. This point was not even argued in court by respondent’s Counsel. There is no authority for the preposition that claims of this nature cannot be brought in motion proceedings. There is no dispute of fact herein that would necessitate the hearing of a viva voce evidence. The point cannot be upheld.
[42] The respondent raised a further point of jurisdiction of the applicant to deal with matters exceedingR250 000.00. This point was raised in Counsel’s written and oral submissions. He further stated that an mount of R260 000.00 should have been included in the inventory set out in the Letter so Authority.
[43] The applicant is well entitled to institute the present proceedings. If the respondent is not content with the manner in which the letters of authority were issued. His remedy is not in these proceedings. Letters of authority appointing applicant to represent the estate are extant. And in instituting these proceedings the applicant is representing the deceased estate. There is no authority to support proposition that a duly appointed estate representative cannot litigate on behalf of the estate.
____________________
Zono AJ
Acting Judge of the High Court
APPEARANCES:
For the applicant : Adv Z BADLI
Instructed by : M NZIMA ATTORNEYS
No 47 Cumberland Road
Mthatha
Cell No: 072 130 4772
TEL: 047 1109 120
E-mail : brnzima@gmail.com
Ref : Mr Nzima
For the Respondents : ADV KROON SC WITH ADV METU
Instructed by : NOSINDWA ATTORNEYS
23 Delville Road
Mthatha
Tel: 047 531 4429
Date heard : 06th August 2024
Date Delivered: : 20th August 2024
1 Clause 3 of deed of sale
2 Clause 5 of Deed of sale.
3 Clause 5 of the deed of sale
4 Section 2(1) of Alienation of land Act 68 of 1981
5 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at 603 Para 18
6 Cools Ideas 1186 CC v Hubbard and another 2014 (4) SA 474 (cc) Para 28
7 Gugu and another v Zongwana and others 2014 (1) ALL SA 203 (ECM) Para 25
8 Clement v Simpson 1971 (3) SA(1)(A) at 7 A-B
9 Gugu and Another v Zongwana and others 2014 (!) LL SA 203 (ECM) Para 24
10 Stalwo (Pty) v Wary Holdings (Pty) ltd and another 2008 (1) SA 654 (SCA) at Para 7
11 RH Christie: Law of Contract in South Africa fifth Edition, Page 199 and 260
12 Ndaba v Ndaba 2017 (1) SA 342 (SCA) Para 54
13 African Product (Pty) Ltd v AIF South African Ltd 2009 (3) SA 473 (SCA) Para 13; National Credit Regular v Opperman and other 2013 (2) SA 1 (cc) Para 99; Kilburn v Turning Fork (Pty) Ltd 2015 (6) SA 244 Para 15
14 Paragraph 1 of the Preamble
15 LAWSA, Vol 25, Part 1 Page 399, Para 366
16 Shalala v Klerksdorp Town Council and another 1969 (1) SA 582 (T) at 587 A-C
17 Administration of Estates Act 66 of 1965 as amended
18 Section 10 of the Justices of Peace and Commissioners of Oath Act 16 of 1963
20 | Page
Cited documents 2
Act 2
1. | Administration of Estates Act, 1965 | 3227 citations |
2. | Alienation of Land Act, 1981 | 256 citations |