IN THE HIGH COURT OF SOUTH AFRICA (CAPE OF GOOD HOPE PROVINCIAL DIVISION)
REPORTABLE 
CASE NO. 14255/2006

In the matter between:
MOVE-ON UPS 56 (PTY) LTD				APPLICANT

And

JUDGMENT DELIVERED ON 21 NOVEMBER 2008

DLODLO. J

[1] This is an application for an order directing the First Respondent, alternatively the Third Respondent to pay to the applicant the sum of Two hundred and fifty thousand rands (R250 000.00) presently being held in trust by the First Respondent. The Applicant is Move-On Ups 56 (Pty) Ltd., a company registered and incorporated according the company laws of the Republic of South Africa and has its registered office situated at Unichem House, Gleneagles Park, 10 Flanders Drive, Mount Edgecombe, KwaZulu-Natal. The First Respondent (Honey Attorneys Inc. Cape Town) is a firm of Attorneys situated at Tyger Valley Chambers One, 27 Willie van Schoor Drive, Tiger Valley, Cape Town, South Africa. The Second Respondent (Herman Grobler) is an adult male businessman and his full and further particulars are unknown to Mr. Mark Douglas Carstens, the deponent of the Founding Affidavit. The Third Respondent is (The 18 at Prince's Grant (Pty) Ltd.) a company registered and incorporated according to the company laws of the Republic of South Africa but its full and further particulars are unknown to Mr. Carstens. The application is resisted by the first and Third Respondents. Mr. McClarty SC and Mr. Beyers appeared for the Applicant and first and Third Respondents respectively.

FACTUAL BACKGROUND
[2] On 28 March 2006 a written agreement was concluded between the Applicant and the Second Respondent in terms whereof the Applicant sold to the Second Respondent who was acting as a trustee on behalf of a company to be formed (the Third Respondent) certain immovable property being Erf 215 Prince's Grant in the province of KwaZulu- Natal for a purchase price of Nine million rands (R9 million) (Agreement of Sale, Annexure "B"). Clause 8.5 read with Clause 3.3 of the Agreement provide that the First Respondent would be the conveyancing attorneys and would attend to the registration of transfer of the property.

[4] Clause 7.1 of the Agreement provides that within seven (7) days of the conclusion of the Agreement, the Second Respondent would deposit the sum of One Million rand (Rlmillion) with the First Respondent, to be held in trust. In terms of Clause 7.3 of the Agreement, within seven (7) days of the fulfilment of the suspensive conditions referred to in Clause 4.1 of the Agreement and/or before taking transfer of the property, the Second Respondent would deliver guarantees to the First Respondent, issued by a South African commercial bank, for payment of the balance of the purchase price plus VAT and any other amounts owing. The guarantee would be payable upon written notification by the First Respondent to the bank which issued the guarantee of registration of transfer in terms of Clause 7.4 of the Agreement.

[5] The registration of transfer of the property into the name of the purchaser would be effected as soon as reasonably possible but would not in any event occur before the deposit had been paid to the First Respondent and the bank guarantee had been provided to the First Respondent. The Applicant would not be required to transfer the property into the name of the purchaser unless the purchaser had complied with all its obligations due for fulfilment in terms of the Agreement. The deposit was paid to the First Respondent by the Second Respondent and the required guarantees were delivered by the Second Respondent to the First Respondent. On 11 August 2006 with the First Respondent as conveyancer, registration of transfer of the property was effected from the name of the Applicant into the name of the Third Respondent. However, the First Respondent failed to pay the full purchase price to the Applicant as against transfer of the property and it withheld payment of the sum of Two hundred and fifty thousand rands (R250 000.00). Notwithstanding demand by the Applicant for the First Respondent to pay the balance of the purchase price, the latter refuses to do so.

[6] In retaining the aforesaid sum of Two hundred and fifty thousand rands (R250 000.00), the First Respondent contends that it did so pursuant to an oral agreement with the Applicant that it could do so. In this regard the First Respondent alleges that it was instructed by the Second Respondent to withhold the said Two hundred and fifty thousand rands (R250 000.00) based on the contention by the Second Respondent that in breach of the Agreement the Applicant had failed to provide electrical bulk services to the property. A dispute of fact exists concerning the Respondents' interpretation of the relevant provisions of the Agreement and whether the Applicant was in breach of the Agreement. Further, a dispute of fact exists as to whether or not an oral agreement was concluded between the Applicant and the First Respondent concerning the retention of the amount of Two hundred and fifty thousand rands (R250 000.00).

THE FOUNDING AFFIDAVIT

[7] This was deposed to by Mark Douglas Carstens (Mr. Carstens) who is a Director of the Applicant Company and who was duly authorised to do so. Mr. Carstens emphatically denied that the Applicant ever consented to the retention of part of the purchase price, namely Two hundred and fifty thousand rands (R250 000.00) and that transfer only occurred on the basis of any such agreement. Mr. Carstens submitted that the First Respondent's contention that it acted with the Applicant's consent does not bear scrutiny. He brought it to the Court's attention that the First Respondent informed the Applicant that:

the Applicant had failed to provide electrical bulk services to the property.

[9] According to Mr. Carstens clearly the First Respondent recognizes that the only basis upon which it could have retained the funds was with the Applicant's consent and it relies on an alleged oral consent by the Applicant to the retention of the Two hundred and fifty thousand rand (R250 000.00). Importantly, Mr. Carstens maintained that the Applicant denied having given such consent. He contended that in any event such oral consent would not be sufficient to relieve the First Respondent of its obligation to pay to the Applicant the full purchase price as against transfer of the property. Mr. Carstens gave a chronology of events as they unfolded. I set out this chronology because it may be relevant when I consider the merits of this application.

CHRONOLOGY OF EVENTS (AS PER MR. CARSTENS)

" We refer to writer's telephone conversation today and confirm that you are aware that the transaction will be registered today. Kindly let us have your concerns in writing so that we can take same up with the purchaser. Kindly also let us have banking details for Move-On-Up 56 (Pty) Ltd for payment of the proceeds as per our pro-forma statement of account."

"We enclose herewith Electrical Consultant's letter indicating the shortcomings in the installation pertaining to the abovementioned property and as a result thereof a certain amount was withheld from the purchase price payable to Move-On-Up 56 (Pty) Ltd (Mark Carstens) in lieu of such installation. "

Respondent, has no more than a spes to that money	In
the circumstance, the applicant is entitled to an Order directing the First Respondent forthwith to pay to it the sum of R250 000,00

together with all interests that has accrued thereon since 12 August 2006. "

THE ANSWERING AFFIDAVIT

[18] Mr. Grobler, for the convenience of the Court deemed it prudent to briefly sketch the sequence of events as conveyed to him by Mr. Du Toit representing the First Respondent. He stated that on 8 August 2006, the First Respondent rendered an account to the Applicant which was dated 9 August 2006 and had same sent to the latter on 8 August 2006 (at 2:04pm) and he added that at the time of the rendering of the account, the First Respondent was not aware of the problem as stated earlier on. In fact, Mr. Grobler himself was not aware of any problem. He averred that he only received confirmation that a problem actually existed after being contacted by Mr. Du Toit of the First Respondent. On 10 August 2006 at 11:49am Mr. Carstens was telephonically contacted (by secretary to Mr. Du Toit) to advise him about the problem and a message was left on his cellphone that he should contact the offices of the first Respondent urgently. Mr. Grobler also referred to further e-mails and letters sent to the Applicant in this regard. He stated further that in order to reach the Applicant another effort undertaken by the First Respondent was to send an sms to Mr. Carstens of the Applicant from the phone owned by Mr. Du Toit.

[19] Importantly, Mr. Grobler emphasised that upon receipt of the sms, Mr. Carstens called the First Respondent and advised Ms Oosthuizen (in the employ of the First Respondent) that he had not received any of the documentation referred to by her during the telephonic conversation and requested the documents to be faxed to him at a Cape Town fax number which Mr. Carstens supplied. These were faxed to Mr. Carstens, according to Mr. Grobler. These constituted five (5) pages including the letter advising Mr. Carstens of the Two hundred and fifty thousand rands (R250 000,00) being withheld plus the engineer's reports. This had an effect that a telephonic discussion took place between Mr. Jacques Du Toit of the First Respondent and Mr. Carstens. According to Mr. Grobler this discussion took place in the presence of one Mr. Barhaschone. The discussion was about problems encountered and the option available to the Applicant. According to Mr. Grobler the Applicant elected that the transfer be proceeded with and that the Two hundred and fifty thousand rands (R250 000,00) be retained. A letter was subsequently written by the First Respondent which confirmed the telephonic discussion and invited the Applicant to set out his concerns in writing which concerns would be taken up with the Third Respondent.

Mr. Jacques Du Toit (a practising attorney and director in the First Respondent's firm) deposed to an Affidavit verifying the assertions contained in Mr. Grobler's Affidavit. Mr. Nicholas Harvey Barnschone (another attorney and as such director of the First Respondent) confirmed the correctness of the Answering Affidavit deposed to by Mr. Grobler.

THE REPLYING AFFIDAVIT

[22] Mr. Carstens emphatically denied that the Applicant failed to comply with Clause 11 of the agreement and he added that there is an 1lkv power line which runs along the boundary of the property sold to the Third Respondent and that is the bulk service of electricity which the Applicant warranted in the Agreement of Sale. Mr. Carstens reiterated that the Second and Third Respondents knew very well that the land itself was vacant and that there was electrical substation on the property. In his view, if the Second Respondent expected to see such a substation, then he would have raised the matter before contracting with the Applicant. Mr. Carstens invited my attention to the fact that Clause 11 of the Agreement of Sale makes it quite clear that the purchaser was responsible for the connection of internal services to the external services as well as the payment of connection fees. Concluding on this aspect Mr. Carstens stated categorically thus:
"The bulk electrical supply is in place and it is up to the Third Respondent to design, install, and pay for, whatever installation it needs to connect the bulk electrical supply, at the boundary, to whatever distribution network the Third Respondent requires for its development. "

[23] He reiterated that he never consented to the retention of the money at all. He drew the Court's attention to what he called "the vagueness of the alleged retention agreement and pointed out that nothing is said as to what will happen if the dispute is not "resolved". He pointed out that it is clear that the parties disagree over the interpretation of the Agreement of Sale but the Third Respondent has done nothing to have the matter decided by legal proceedings, nor has it instituted any action for damages. Mr. Carstens specifically denied that Mr. Du Toit sketched options available to the applicant in his telephone conversation with him referred to in paragraph 24.3.9 of the Answering Affidavit. According to Mr. Carstens Mr. Du Toit simply told him that he had been instructed by the buyer to withhold the sum of Two hundred and fifty thousand rands (R250 000,00) in respect of the purchase price because of the alleged electrical problem. Importantly, contended Mr. Carstens, Mr. Du Toit did not say that unless the former consented to the retention registration of transfer would not proceed. In fact (according to Mr. Carstens) the question of registration of transfer was not even discussed.

[24] Responding to paragraph 26.3 of the Answering Affidavit Mr. Carstens remarked that the Second Respondent gives the "game away" in that he seemingly suggests that the basis upon which the Two hundred and fifty thousand rands (R250 000,00) was retained was because the First Respondent was instructed to do so by the Third Respondent. Concluding on this aspect Mr. Carstens contended as follows:
"I have already said that, because the sum of R250 000,00 is being held by the First Respondent in its Trust account, in the name of the Applicant, and on its behalf, the First Respondent is obliged to repay that sum to the Applicant, simply because the First Respondent no longer has any mandate (if it ever had one), to hold that sum on behalf of the Applicant. "

Mr. Carstens reiterated that in the advice he received, the whole of the purchase price of the property became due, owing and payable by the Third Respondent to the applicant, simultaneously with registration of transfer but the Respondents now allege that part of the purchase price (i.e. R250 000,00) would not be paid against registration of transfer, but would be retained in Trust pending an unspecified resolution of the electrical problem. Mr. Carstens added the following:
"I am advised that because this alleged arrangement, and the Applicant's alleged consent thereto, was never reduced to writing, it is not binding on any of the parties and the Applicant is thus entitled to payment of the purchase price, in full. "

[25] In Mr. Carstens' view if it is the case of the Respondent that the sum of Two hundred and fifty thousand rands (R250 000,00) was retained by the First Respondent upon the Third Respondent's instructions, (without the need for any consent from the Applicant) then the Third Respondent is simply in breach of the contract of sale and it is obliged to pay the balance of the purchase price. Furthermore, Mr. Carstens contended that if it is the Third Respondent's case that the money was withheld in terms of the agreement to which it is said that the Applicant consented, then that is an unenforceable variation of the Agreement of Sale. Mr. Carstens denied that the Applicant waived any of its rights and hastened to add that any alleged oral waiver is not enforceable in this instance.

SUBMISSIONS AND APPLICABLE LEGAL PRINCIPLES

" ...where there is a dispute as to the facts a final interdict should only be granted in notice of motion proceedings if the facts as stated by the respondents together with the admitted facts in the applicant's affidavits justify such an order ...Where it is clear that facts, though not formally admitted, cannot be denied, they must be regarded as admitted. This rule has been referred to several times by this Court (see Burnkloof Caterers (Pty) Ltd v Horseshoe Caterers (Green Point) G (Pty) Ltd 1976 (2) SA 930 (A) at 938A-B; Tamarillo (Pty) Ltd v BN Aitkin (Pty) Ltd 1982 (1) SA 398 (A) at 430 - 1; Associated South African Bakeries (Pty) Ltd v Oryx & Vereinigte Backereien (Pty) Ltd en Andere 1982 (3) SA 893 (A) at 923G-924D). It seems to me, however, that this formulation of the general rule, and particularly the second sentence thereof, requires some clarification and, perhaps, qualification. It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief may be granted if those facts averred in the applicant's affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order	"

'One can conceive of cases on the other hand, exceptional perhaps, ...when to ask the Court to decide the issues without oral evidence if it can, and to permit such if it cannot, may be more convenient to it as well as the litigants. Much depends on the particular enquiry and its scope.

[28] In Mr. Beyers' submission the Applicant seeks, (as against the Third Respondent) an order for specific performance of the Agreement of Sale, and (in the alternative) as against the First Respondent, an order that the retained amount be paid to it. In his submission after having accepted the benefits of the agreement of 11 August 2006, namely, receipt of the purchase price (less retention), cancellation of its bonds and defective performance in terms of the Deed of Sale, the Applicant now refuses to comply with the only rider attached thereto, being the retention of the purchase price. Mr. Beyers described the Applicant's conduct as manifest inequity. I consider these submissions later-on in this Judgment.

[29] According to Mr. Beyers, it is of decisive importance in this matter to properly distinguish between, on the one hand, the rights and obligations which arise as between the parties to the Agreement of Sale, (that is as between the Applicant and the Third Respondent) and on the other hand, the rights and obligations which arise in respect of the agreement of what he called mandate which subsisted between the Applicant and the First Respondent, and the latter and the Third Respondent respectively. He emphasised that whilst the First Respondent may have been nominated by the parties to act as conveyancer in terms of the Agreement of Sale (the First Respondent was not a party to the Agreement of Sale) it could not be burdened with any contractual obligations which may have arisen from the said Agreement of Sale. 1 accept that the First Respondent was not party to the Agreement of Purchase and Sale. But I hasten to add that the First Respondent knew or should be taken to have known what the agreement between the parties is because it is armed with the copy of such agreement. I take note of Mr. Beyers' submission that whether the Applicant is entitled to payment by the Third Respondent of the balance of the purchase price in terms of the Agreement of Sale stands to be determined with reference to the provisions of the Agreement of Sale.

"As enige afleiding van die gemelde beslissings gedoen kan word, dan skyn dit die volgende te wees: Waar die betrokke partye in staat en gewillig is om die bepalings van die geskrewe kontrak stiptelik na te kom en waar enige van sodanige bepalings, op versoek van een van die partye daartoe en deur vergunning van die ander party, op n ander as die voorgeskrewe wyse ten voile nagekom is, dan kan die feit van geskrewe kontrak-bepalings gewysing word in die sin dat n bepaling daaronder opgehef en 'n mondelinge verpligting in die plek daarvan gestel word, dan bestaan daar geen geskrewe kontrak wat sowel die oorspronklike ooreenkoms en die wysiging dek nie en derhalwe voldoen sodanige gewysigde kontrak nie aan die beplaings van art. 49 van die Ordonnansie nie. Hierdie afleiding skyn ook geregverdig te word deur die inhoud van paragrawe 593 en 595 van Williston Contracts (verbeterde uitgawe, deel 2) waar die geleerde skrywer aandui dat waar die geskrewe ooreenkoms, soos deur die daaropvolgende mondelinge kontrak gewysig, ten voile nagekom is, sodanige nakoming die uitwerking het.

"...as a satisfaction of the liability on the original contract. The Statute of Frauds does not apply to fully executed contracts, so that when the oral agreement has been performed its performance has the effect the parties agreed it should have. "

In die laasgenoemde paragraaf kom die volgende voor:

"If an oral agreement were made it would not be enforceable as a contract, but might nevertheless operate as a continuing cause for non-performance of the written agreement. It seems essential, however, that B"

(d.w.s. die party wat die gewysigde bepaling nagekom het op versoek van die ander party, A)

"...could, and presumably would have performed the condition or obligation on his part, had it not been for A's action. Otherwise A has not caused B's failure to perform. ...On theories of waiver or estoppel it is generally held that to the extent that a. failure to perform has been caused by either party, he cannot take advantage of the non-performance. "
Minder bevredigend is die verklaring van Cheshire en Fifoot, Law of Contracts, bl. 363, tot die volgende effek:
"The answer to this question depends upon a distinction which in certain circumstances may be a little subtle. We have to ask ourselves whether the parties have supplanted or made a specific alteration in the original contract, or whether what has happened is that one party, without in any sense binding himself, has agreed to wait longer for performance by the other. "
In die Restatement of the Law (Contracts, para. 224) word die volgende neergele:
"The performance of a condition qualifying a promise in a contract within the Statute may be excused by an oral agreement or permission of the promisor that the condition need not be performed, if the agreement or permission is given while performance of the condition is possible, and in reliance on the agreement or permission, while it is unrevoked, the promise materially changes his position. "

In die Permanent Edition tot hierdie opus word die saak van Lampasona v Capriotti, 296 Mass. 34, 38, aangehaal waar die beslissing op estoppel gegrond is. Die opsomming van die saak van Gulf Production Co. V Continental Oil Co., 139 Tex, 183, 191, is soos volg:
"Conditions in written oil and gas lease that lessee must pay certain sums in cash may be orally changed by lessor who agreed to accept lessee's syndicate certificates ".
Sien verder Leake, Contracts (8ste uitgawe, bll. 616-617).
Op bl. 585 van Phipson, op cit., kom die volgende voor:
"A agrees in writing to sell land to B. An oral agreement made at the
time that B might set off a debt owed him by A against the purchase
money is (probably) admissible".

"We are aware of opinion that the appellant Norvell has to the extent of £257 12s. 4d. Performed all that was on his part to be done, and that he is entitled to say that the sum which he had to pay arose from an obligation on his part which to the extent of £257 12s. 4d. Has been extinguished by a set-off against the obligation of the bankrupt to pay him that sum. "

Sover my beken is, het ons Howe nog nie direk die punt hier in geskil, beslis nie. Die Engelse sake word egter in die algemeen as leidrade in soortgelyke vraagstukke aanvaar. (Sien bv du Plessis v Nel, 1952 (1) SA 513 (A.A). In die pasaangehaalde saak het VAN DEN HEEVER, R.A., op bl. 539 die algemene stelling soos volg uitgedruk: "Where the written contract purports to reflect the whole contract on a particular subject matter between the parties, where the pleadings aver that it is the whole contract or the Court is satisfied that it is, no additional or conflicting oral terms may be proved: in that manner greater and lesser performances than those promised in the written contract may not be proved".

Na my beskeie mening bevat hierdie stelling geen weerspreking van die afleiding uit die Engelse en Amerikaanse beslissings, hierbo uiteengesit, nie. As in ag geneem word dat in terme van Le Grange v Pretorius, 1943 T.P.A. 223, 'n ooreenkoms wat onder die bepalings van die Transvaalse Proklamasie 8 van 1902, art. 30, in geskrif opgestel moet word, geldig deur n mondelinge ooreenkoms tussen die partye ingetrek of kanselleer word, dan kan dit na my mening met eweveel regverdiging konstateer word dat 'n enkel oorblywende verpligting onder sodanige skriftelike ooreenkoms ook by wyse van mondelinge kontrak geheel-en-al gedelg kan word of by wyse van afstandoening daarvan of by wyse van nakoming deur vervangde prestasie wat deur die teenparty aanvaar word as prestasie onder die geskrewe kontrak of deur skuldvergelyking. "

[31] Mr. McClarty SC submitted that for the purposes of this application the merits of the disputed facts are irrelevant by reason of the fact that in terms of the Agreement of Sale the First Respondent was obliged to pay the purchase price to the Applicant against registration of the property into the name of the Third Respondent. This submission must necessarily be understood in the context of Clause 22 of the agreement which provides as follows: 

This agreement constitutes the sole record of the agreement between the parties with regard to the subject matter hereof. No party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein.

No addition to, variation of or agreed cancellation of this agreement, including this clause 22.2, shall be of any force or effect unless in writing and signed by or on behalf of the parties.

No relaxation or indulgence which any party may grant to any other shall constitute a waiver of the rights of that party and shall not preclude that party from exercising any rights which may have arisen in the past or which may arise in the future.
22.4 	

An approval or consent given by a party under the agreement shall only be valid if in writing and shall not relieve the other party from responsibility for complying with the requirements of this agreements nor shall it be construed as a waiver of any rights under this agreement except as and to the extent otherwise expressly provided in such approval or consent, or elsewhere in this agreement. "

[32] From the above quoted Clause it is abundantly clear that for any consent (as alleged by the First Respondent) to be of any force and effect, it would have had to have been in writing and appropriately signed by the parties because it would constitute a variation of Clause 7.4 read with Clauses 8.1 and 8.2 of the agreement above referred to. The provisions of Clauses 7.4, 8.1 and 8.2 of the Agreement of Sale are relevant in my determination of this application. It is prudent that 1 set them out infra for purposes of easy reference. These clauses contain the following provisions:
"7.4 The guarantee shall be payable upon written notification by the Attorneys to the bank which issued the guarantee (the "guarantor") of (sic) registration of transfer with simultaneous registration of cancellation of any existing mortgage bonds registered over the Property and, if required by the Purchaser, the simultaneous registration of a first mortgage bond over the Property. "

"8.1 Registration of transfer of the Property in the name of the Purchaser shall be effected by the Attorneys as soon as is reasonably possible, but shall in any event not occur before the deposit has been paid to the Attorneys and the bank guarantee referred to in clause 8 has been provided to the Attorneys. 
8.	The Seller will not be required to transfer the Property into the name of the Purchaser unless the Purchaser has complied with all its obligations due for fulfilment in terms hereof. "

"1. The section is directed against uncertainty, disputes and possible malpractices.
"Dit kan aangeneem word, meen ek, dat die oogmerk van hierdie artikel is om, sover doenlike altans, onsekerheid en geskille omtrent die inhoud van sulke kontrakte te voorkom en moontlike wanpraktyke teen te werk. ...Die Wetgewer kon nouliks gemeen het dat dit alle onsekerheid, alle geskille en alle wanpraktyke sou besweer, en dit kan wees dat die mate waarin die oogmerk bereik is en bereik word, heelwat te wense oorlaat, maar dit neem nie weg nie dat bogenoemde wel die oogmerk is.: - per STEYN, C.J. in Neethling v Klopper en
Andere, 1967 (4) SA 459 (A.D.) atp.464E	"

"In my judgment, in order to decide whether a term of a contract is 'material 'for the purposes of s2(l) of the Act, the following questions require to be answered positively:
a)	did the parties apply their minds to the term?
b)	Did they agree, either expressly or impliedly,

15.1 Should either party fail to perform any obligations in terms of this Agreement on due date or fail to comply with any other term or condition of this Agreement for a period of seven (7) days after delivery of a written notice whereby he is required to comply with such terms or conditions, the aggrieved party shall be entitled, without any further notice and without prejudice to any other rights, to cancel this Agreement, and claim damages from the defaulting party.
15.2 In any event of a default by the Purchaser and consequent cancellation of this Agreement, the Seller shall be entitled, without prejudice to any of its rights, to retain as a pre-estimate of its damages, any deposit paid in terms hereof. "

"Although the client may, broadly speaking, not prescribe the manner in which the services are to be rendered, the attorney must at all stages of the matter act according to the instructions of the client (subject to the limitation that he must not carry out improper instructions). That is why he has a duty to report to his client when it is reasonable and necessary. "

Therefore, even if I accept that there was an oral agreement (I do not accept this) to retain the money in trust, the First Respondent's mandate to do so has been terminated and it has been instructed to repay the sum of Two hundred and fifty thousand rands (R250 000,00). How can it refuse to do so?

COSTS
[38] Mr. Beyers submitted that this Court should resort to a punitive cost order against the Applicant in that it proceeded to bring this matter to Court by way of motion when it knew or ought to have known that inherent in the matter was a dispute of fact. According to Mr. Beyers the matter should have been initiated by way of action in view of the dispute of fact. On the other hand Mr. McClarty SC submitted that having regard to the provisions of the non-variation clause in the Agreement of Sale, the provisions of the Alienation of Lands Act and the duties of the First Respondent as conveyancers towards the Applicant, it was reasonable for the Applicant to have sought relief by way of application proceedings rather than by way of action. The general rule is that a successful party is entitled to its costs. In view of the conclusion I have reached on the merits of this matter, it is not necessary to consider Mr. Beyer's submission in this regard. The Applicant is, in my view, entitled to its costs in this matter.

ORDER
[39]   In the circumstances 1 make the following order:

(a) The First Respondent, alternatively the Third Respondent be and is hereby directed forthwith to pay to the Applicant the sum of Two hundred and fifty thousand rands (R250 000.00) presently being held in Trust.

(b)The First Respondent, alternatively the Third Respondent, is directed to pay interest on the aforesaid sum of Two hundred and fifty thousand rands (R250 000.00) calculated at the rate of 15.5% from 12 August 2006 to date of payment, both dates inclusive.

(c)The First Respondent, alternatively the Second Respondent, alternatively the First, Second and Third Respondents jointly and severally, are directed to pay the costs of this application on the attorney and client scale.
									DLODLO, J