IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CIV.
CASE NO. 1226/91
In
the matter between:
JORGE
SIMIAO MARTINS MANJATE Applicant
And
DON
BOSCO GININDZA Respondent
C
O R A M : DUNN J.
FOR
THE APPLICANT : MR CJ. LITTLER
FOR
THE RESPONDENT : MR L. MAMBA
JUDGMENT
16th
April 1993
The
parties to this application entered into a Deed of Sale in respect of
Lot no. 688 Ext. 4 Mbabane, on the 22nd June 1990. The applicant was
the purchaser. The respondent was the seller. I shall continue to
refer to the parties as the purchaser and seller, respectively.
Clause 1 of the Deed of Sale reads as follows -
The
purchase price shall be the sum of E62,500.00 (sixty two thousand
five hundred Emalangeni only) payable as follows –
The
purchaser shall deposit the sum of E20.000.00 (twenty thousand
Emalangeni). with the agent herein, Property Market Services (Pty)
Ltd. The purchaser will furnish an approved Bank or Building Society
guarantee in favour of the seller for the full balance of the
purchase price payable free of exchange at Mbabane upon registration
of transfer of the property into the name of the purchaser.
The
guarantee of E42,500 (fourty two thousand five hundred Emalangeni)
shall be furnished within 45 days after the date of the last
signature to this deed of sale.
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Clause
6 provides -
Should
the purchaser have failed to make any payment stipulated in Clause 1
hereof within the time stated, or failed to furnish any guarantee
which the purchaser is required to make in terms of Clause 1 hereof
within the time stated, then the seller may claim immediate payment
of the balance of the purchase price, or of the full purchase price
as the case may be, or alternatively, may cancel this Deed of Sale
without notice to the purchaser, in which case any money already paid
by the purchaser in terms of this Deed of Sale shall be forfeited by
the purchaser to the seller as a pre-estimate of damages suffered by
the seller/
It
is common cause -
That
the contract between the parties meets the requirements of section
31 of the Transfer Duty Act No.8 of 1902 relating to the sale of
land. The contract itself clearly sets out the essential terms
namely the identity of the parties, the identity of the subject
matter and the amount of the purchase price.
That
the purchaser did not furnish the guarantee referred to under clause
1 within the stipulated period.
The
application turns, in my view, on the provisions of clause 6. The
E20,000 deposit was paid to the seller's agent as required. The
guarantee should have been furnished on or before the 6th August
1990. It was not furnished but instead and on that date an amount of
E35.000.00 was paid by
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the
purchaser to the seller's agent. The balance of E7,500.00 was paid on
the 2nd October 1990. The agent accounted fully to the seller for the
amounts received on his behalf. The seller accepted the payments.
The
seller's case is that he acted under clause 6 and elected to cancel
the sale following the purchaser's failure to furnish the guarantee.
The cancellation, it was stated, was contained in a letter addressed
to the agent by the seller on the 20th September 1990. The letter was
telefaxed by the seller to attorney K.M. Nxumalo in Mbabane on the
3rd October, a day after the outstanding balance had been paid by the
purchaser. The seller stated in evidence that he requested attorney
Nxumalo to forward a copy of the letter to the agent. The letter
reads in part -
I
herein withdraw my property from the market forthwith in accordance
with the terms of the deed of sale dated 22nd June 1990, reference
paragraph 1 last sentence, and further paragraph 6. The purchaser has
further failed to meet the above requirements after I had personally
served him with a notice of default. I have personally incurred huge
expenses, in trying to meet Jorge's requests with the purchase of
this property. These I am claiming compensation for.
According
to Mrs Sibanyoni of Property Services (Pty) Ltd (the agent) a copy of
the seller's letter was received after the payment of E7.500 was
made. No evidence was led of the "notice of default"
referred to in the letter. The purchaser had by the time of receipt
of the letter by the agent, already paid the transfer costs to the
conveyancer nominated by the seller for the transfer of the property.
The
purchaser gave evidence without objection from
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the
seller to the effect that it was at the request of the seller that
the E42,500.00 was paid in cash to the seller's agent. It appears
from several decided cases referred to by the learned author RH
Christie in his book THE LAW OF CONTRACT IN SOUTH AFRICA pl09, that
such evidence of a subsequent oral variation of the method of payment
is not admissible. The present case is not, however, concerned with
the question of a variation of the method of payment but rather with
the question as to which of the rights under clause 6, the seller
elected to exercise upon the purchaser's failure to furnish the
guarantee. A distinction must, in my view,- be made between cases
where it is stipulated that a failure to comply with an essential or
material term of the deed of sale will render the sale void and cases
where the seller can elect to claim payment of the full purchase
price or the balance, as the case may be, or in the alternative to
cancel the sale. Evidence of the method of payment may become
relevant and admissible in cases where the seller elects not to
cancel and arrangements are made regarding the payment of the
purchase price or balance thereof.
The
evidence of the purchaser, which is supported by that of Mrs
Sibanyoni is that even after the 6th August 1990 the day by which the
guarantee should have been furnished and on which the E35,000.00 was
paid, the seller demanded payment, in cash, of the outstanding
balance. The balance at that stage was E7,500. Mrs Sibanyoni advanced
the reason and this was not contradicted by the seller, that the
seller was pressing for payment of the balance in order to meet
personal obligations whilst he was pursuing his studies in the United
Kingdom.
I
am satisfied from the evidence that the seller's conduct amounted to
an election not to cancel the sale but
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to
claim payment of the balance of the purchase price. The purchaser's
evidence supported by that of the seller's agent places the matter
beyond any doubt.
The
application is granted. The seller is directed to take, within 30
days, from to-day's date all such steps as may be necessary to give
transfer of the property in question to the purchaser. In the event
of the seller failing and/or neglecting to comply with this order,
the Sheriff or his lawful deputy is hereby authorised to take all
such necessary steps and to sign all necessary documents and consents
on behalf of the seller.
The
seller is to pay the costs of this application.
B.
DUNN
JUDGE
