IN THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG
                                                      ( REPUBLIC OF SOUTH AFRICA)

                                                   					                           CASE NO: 6548/2013

In the matter between :

GEOFFRREY  SHARMAN								First Applicant

SARAH SHARMAN								Second Applicant

      And

MICHAEL  NZIMANDE								First Respondent

ALL OTHER OCCUPANTS OF PORTION
2 OF ERF 926, FAIRLAND							Second respondents

    					JUDGMENT

MBONGWE, AJ :
[1]   This is an application in terms of the provisions of the Prevention of  Illegal Eviction from and 
       Unlawful  Occupation of Land Act 19 of 1998 ( PIE ACT) in which the applicants seek an order
       for the eviction of the first respondent and other persons who may be residing through the
      First respondent from Portion 2 of Erf 926 Fairlands, also known as 13 Ohloff  Street, Fairlands.

         The application is being opposed by the first respondent.

[2]    It is common cause between the parties that the applicants entered into a lease agreement
         with the first respondent on the 15th December 2008 in terms of which the first respondent
         was to rent the aforementioned property of the applicants for a period of fifteen months 
         ending  1st March 2010 against payment of monthly rental of R12 000-00 (Twelve Thousand  
         Rand ) per   month.  Before this period ended the parties concluded an instalment sale 
         agreement in terms  whereof the first respondent was to purchase the rented house from the 
         applicants. It appears  that the initial lease agreement ran its full course without incident.

[3]    The instalment  sale agreement was entered into  on the 15th September 2009 with the date
          of  commencement thereof being the 1st April 2010. In terms of the sale agreement the 
          purchase price was the sum of R1 750 000 ( One Million Seven Hundred and Fifty Thousand 
          Rand). The first respondent was to pay a deposit of R100 000-00 ( One  Hundred Thousand 
          Rand) on the 1st  April 2010 in addition to a monthly rental of R13 200-00. Thereafter  the 
          respondent was to pay the amount of  R146 600-00(One Hundred and Forty Six Thousand Six 
          Hundred  Rand) per month which included the monthly rental and the residue was towards 
          the reduction of the  purchase price and interest. The full purchase price was to be paid over a 
          period of twelve months.

[4]    The problems between the parties appear to have started from the 1st April 2010. The 
         applicants allege that the 1st respondent failed to honour the terms of the rental and sale 
         agreement. It is noted that the applicants consider the rental agreement to be separate from
         the sale agreement. The applicants further aver  that, despite the relevant notices to rectify the 
         breaches, the 1st respondent  failed to do so leading to the applicants cancelling the 
         agreements  and ultimately instituting these  proceedings. On the other hand, the 1st 
         respondent  denies the alleged  breaches  and states  that the applicants have not adhered to 
          nor followed the terms of  the contract dealing with  instances where a breach has occurred. In 
          essence the 1st respondent   is challenging the validity of  the notices of termination of the 
          agreement by the applicants. He maintains that the agreement has not been terminated.   The 
          1st respondent  further  raises as a defence the fact that he had sought rectification of the sale 
          agreement in  that the  written  agreement did not properly record the agreement between 
          the parties. The 1st  respondent  questions  the payment of the commission out  of the deposit 
          of R100 000-00 – paragraph………of the answering affidavit.

[5]    The issues to be decided, therefore, are whether the applicants were entitled to pay the agent’s
         commission out the deposit amount and whether the agreement(s) have been validly 
         terminated  by the applicants. 
     
[6]    To arrive at a decision, I deem it necessary to deal with the events in this matter in their
         chronological order. Firstly in terms of the agreement,  the 1st respondent  was to pay the 
         deposit of R100 000-00.  In terms of  Clause 1.1 of the ADDENDUM TO THE SALE AGREEMENT, 
         this deposit would be paid into the trust account of the applicants’ ‘’ conveyancers pending
         registration of the recordal against the title deed of the property.’’ Clause 1.2 provides that
         ‘’ ..the  conveyancers  will invest any monies received by them prior to registration of the 
         recordal of the Agreement in an interest bearing account for the benefit of the purchaser.’’
        Clause 1.3 provides that on the registration of the recordal against the title deed of the 
         property, the deposit will be paid to the sellers.

[7]   According to Annexure MN4 to the 1st respondent’s answering affidavit, he deposit of R100 000-
        00 was paid on the 24 November 2009 and a further  payment  of R79 800-00 on the 17th 
        December 2009. It appears from Annexure MN4 that between the 18th and 21st December 
        2009, these amounts were paid out to the applicants and the agent, respectively. 
   
          It is to be noted that, with regard  to the  agent’s commission, paragraph 7.1 of the sale 
          agreement  does make provision for the payment  of the commission from the first payment 
         made by the 1st respondent  and the agreement states that the commission becomes due
          on conclusion of the agreement. While it is unusual for an agent’s commission to be paid by 
          a purchaser, that situation was agreed upon in the agreement in casu, but  appears to 
         have been among the issues that caused an impasse between the parties that lead not only to 
         protracted yet  never  resolved  negotiations  lasting 18 months and  was accompanied by 
         non - payments of the monthly rental and instalments by the 1st respondent. I do not believe,
         however, that the 1st respondent was entitled to withhold further  payments for that reason
         and for that long. In fact, such conduct by the 1st respondent’s cannot be said to be that of a
         committed tenant  and genuine purchaser. That the 1st respondent  made the next payment,
         being in respect of the rental only, in November 2011, is further proof  of his dubiety, 
         although  such  payment was accepted by the applicants amid allegations  that the rental  
         agreement   had  been cancelled during  May and again in November 2010.

[8]     On the 18thMay 2010 the applicants’ attorneys  addressed  a letter to the 1st respondent which 
         reads, in part, as follows:  ‘ In terms of Clause 8.3  the first instalment in the amount of 
         R146 600-50 was due and payable on the 1st April 2010 into our trust account. We have not 
         received  payment of the first instalment in the amount of R146 600-50 which means you are in 
         breach  of the terms of this contract.’ The letter then refers to Clause 19 of the contract of sale 
         and Clause 2 of the addendum thereto and calls upon the 1strespondent to make payment of 
         the  aforementioned  amount within seven days, failing which ‘our clients’ rights are reserved. 
         This  letter is defective as a notice in that it does not accord with the provisions of the sale 
         agreement  in terms whereof the applicants are to call upon the 1st respondent to remedy a
         breach within thirty (30) days from the date of the notice nor does it set out expressly the
         steps the applicants are likely to follow if the breach is not rectified ( see BEKKER v SCHMIDT,
         below.  For these reasons, the purported  notice dated 18th May 2010  is invalid and stands  to 
          be rejected.

[9]   The subsequent letter dated 24th May 2010 purporting to terminate the agreement on the basis
         the defective notice dated 18th May 2010 and stating : ‘In our letters  we notified you that the 
         breach had to be remedied within seven days from date of each letter. Due to your continued 
         breach and failure to remedy such breach , we are instructed to advise you that the seller has 
         elected to exercise his right to terminate the Contract of Sale ( Instalment) and withdraw 
         therefrom.,’  is consequently, also invalid, of no force or effect and stands to be rejected.  The 
         applicable principle in this regard was aptly laid down in BEKKER v SCHMIDT BOU 
         ONTWIKKELINGS CC AND OTHERS [2007] 4 All SA  1231 (C), as follows : ‘ non – compliance 
         with  contractual provisions regulating cancellation results in the contract remaining extant.’ 
         Furthermore, paragraphs 3.3 – 3.3.5 of the sale agreement forbid the seller from terminating 
         this contract , instituting an action unless; the seller has given written notice describing the 
         breach, demanding rectification of such breach within a period not less than 30 days and 
         indicating the steps the seller intends to take if the breach is not rectified within the given 30  
         day period.  The sale agreement between the parties was, consequently, never terminated
          properly  and consequently  remained extant. 

[10]   A further  notice dated 8th November 2010 purporting to terminate the lease agreement that 
          was entered into on the 15th December 2008 was  addressed to the 1st respondent.  This 
          particular  agreement had run its course and had been  terminated by the affluxion  of time on 
          the  31st  March 2010. The rental obligations of the 1st respondent  were, from the 1st April 
         2010,  founded in the sale agreement and not the lease agreement dated 15th December 2008.  
          Clause 3.1 of the sale agreement reads as follows :  ‘ From the monthly payment of R146 600-
          00 in terms of the agreement, the purchaser will  continue paying the seller monthly rental in 
          the amount of R13 200-00 ( inclusive of the 10%  escalation as per lease agreement).’ Having 
          already found that the sale agreement was never properly  cancelled and remains extant, the 
            rental agreement rooted therein also remains  valid.  The purported termination of the non –
            existent  rental  agreement dated 15 December 2008 is, therefore, rejected. 

[11]	The pertinent  legal position in this case, although not raised by the parties and  particularly not relied upon by the applicants,  is that the agreement between the parties which commenced on the 1st  April 2010  and  had a life-span of twelve months, was never renewed or  extended in writing as required by the ALIENATION OF LAND ACT 68 OF 1981,  was  terminated on 31st March 2011 due to affluxion of time. In the result, I find that there was no valid rental and sale agreement between the parties post the 31st March 2011.

[12]    The subsequent   letters, by the applicants’ attorneys and by the  applicants themselvesto the 
            1st  respondent, both dated 16th January 2013, are, for the reasons stated in the preceding
            paragraph, redundant  and need not be considered for whatever purpose they were
            intended to serve.

[13]     I therefore, find that the agreement between the parties had run its  intended course
            despite the 1st respondent’s persistent failure to pay the monthly rental and instalments in
            breach of the terms and conditions thereof.  I further  find that the 1st respondent’s  claim  
            that he is  in lawful possession  and occupation of the property,  particularly in the light of the 
            applicants’ demand that he vacates the property,  to be lacking legal grounding , extremely  
            absurd  and  stands to be rejected.  

[14]    Following the above findings, particularly the circumstances of this case, there is no reason 
           why this court should not grant  the eviction order prayed for by the applicants as owners of 
            the  property and in the absence of a plausible and valid justification by the 1st respondent to
            to continue possession and occupation of the property.
 
     [15]   The following order is consequently given:

1.	 The 1st respondent  and all persons occupying through him the property described as

 PORTION 2 OF ERF 928 FAIRLANDS, ALSO KNOWN AS NO 13 OHLOFF STREET,

 FAIRLANDS ,  are in unlawful occupation of the said property.

2.	 The 1st respondent and such persons  are  ordered to vacate the said property by no 

 later than the 31st August 2013, failing which the Sheriff of this Court is hereby 

                        authorised to evict  the 1st respondent and such  persons  and place the applicants in
 
possession thereof.   

3.	The 1st respondent  is  ordered to pay the costs of this application.

MBONGWE, AJ
ACTING JUDGE OF THE SOUTH GAUTENG HIGH COURT

Date of hearing             : 13 June 2013
Date of judgment         : 18 July 2013

APPEARANCES
1.	For the applicants    	: Adv  E. Coleman

Instructed by		: Steyn  Steyn & Partners, Johannesburg.

2.	For the 1st respondent	: Adv  A. Milovanovic
Instructed by		: Biccari Bollo Mariano Attorneys, Johannesburg.