JUDGMENT
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

In the matter between: 

and

JUDGMENT

FOURIE, J

"Special conditions
This sale is subject to the complete approval by the South Peninsula section of the Cape Town City Council of plans for the construction of a pair of double storey houses on the site, such plans  to  be  supplied   and   submitted   by  the purchaser, at his expense, and the seller agrees to give all necessary assistance, authority and signatures to permit such plans to be submitted and approved, under her name. In order to minimise the expense of registration of transfer the seller agrees that the purchaser may nominate the transferring attorneys."

For purposes of determining this application clause 14 should be read in conjunction with clause 5 of the deed of safe which provides as follows;

"Transfer
Transfer shall be effected by the purchaser's conveyancers forthwith on 1st July 2006, subject to comptiance with clause 14."

Applicant contends that the deed of sale is still valid and enforceable while respondents aver that same has lapsed as a result of the failure of the suspensive condition in clause 14. First respondent has now resold the property to a third party, one Or Eloff, but transfer thereof in Dr Eloff's name has not yet taken place. He has not been cited as a party in these proceedings, but has filed an affidavit in which he states that he considers himself joined and abides the decision of the Court.
The relevant facts in this matter are uncontentious and I do not intend traversing same in any detail. I accept that anyone interested in this judgment is conversant with the contents of the affidavits filed on behalf of the parties.

Respondents, on the other hand, contend that the agreement of the parties as embodied in the deed of sale, and in particular Clause 14, read with Clause 5 thereof, is that this suspensive condition would be fulfilled by 1 July 2006. As the condition had not been fulfilled by this date, the deed of sale has lapsed and is of no force or effect.

As I have already mentioned, applicant now seeks a temporary interdict restraining respondents from alienating or transferring the property, pending the resolution of legal proceedings for declaratory relief confirming the validity of the deed of sale.

As further indicated earlier, applicant in its notice of motion also asks for the interdict to be operative pending the final determination of an application for the amendment of the subdivision condition that the dwelling units to be constructed on the property, should be single storey buildings.

These factors are not considered separately or in isolation, but in conjunction with one another in the determination of whether a Court should exercise its overriding discretion in favour of the grant of interim relief. The proper approach is to take the facts set out by applicant, together with any facts set out by respondents, which applicant cannot dispute, and to consider whether having regard to the inherent probabilities, applicant should, not could, on those facts obtain final relief at the trial.

Applicant's case is that the complete approval by the local authority of plans for the construction of a pair of double storey dwelling units on the property, involves the following: Firstly, the approval of the plans by the Heritage Section of the local authority; secondly, an amendment or removal of the condition of sub-division restricting the construction of dwelling units on the property to single storey only, and thirdly, the approval of the plans by a number of departments of the local authority.

It is common cause that subsequent to the conclusion of the deed of sale the plans were approved by the Heritage Section of the local authority on 3 January 2007. It is further common cause that the power of attorney granted by first respondent for the removal or amendment of the aforesaid condition or sub-division, was signed on 4 June 2007. According to Mr Hart, an experienced architect who prepared the application for an amendment of the said condition of sub-division, a reasonable period for consideration of such an application would be twelve to eighteen months, provided that there were no unusual delays occasioned by the conduct of any of the parties to the process. In his opinion the period would furthermore depend on whether objections or subsequent appeals were noted against the local authority's decision.
In view thereof, applicant contends that a reasonable period has not yet elapsed for fulfilment of the suspensive condition in clause 14 of the deed of sale, and that the sale is accordingly still valid and enforceable. Applicant also maintains that in determining whether a reasonable time has elapsed, it should be borne in mind that the delays which have been experienced in the process were as a result of first respondent's conduct. It should be noted that respondents do not contend that the suspensive condition contained in clause 14 of the deed of sale had to be fulfilled within a reasonable time, nor that a reasonable period of time has lapsed; what they do contend is that upon a proper interpretation of the deed of sale, viewed against the background circumstances giving rise to the conclusion thereof, the date for fulfilment of the suspensive condition was 1 July 2006. To this end respondents contend that it was not in the contemplation of the parties that the sub-division condition relating to the property, was required to be removed to enable applicant's building plans to be approved.

A particular clause, phrase or word should, however, not be interpreted in isolation, but within the context in which it is used in the contract as a whole. The Court should also, broadly speaking, have regard to the background circumstances which explain the genesis and purpose of the contract.

First respondent's construction by incorporating the date for transfer, i.e. 1 July 2006 in clause 5, as the date for the fulfillment of the suspensive condition in clause 14, renders the words "subject to compliance with clause 14" in clause 5, entirely superfluous and meaningless.

The subsequent conduct of first respondent is also irreconcilable with the interpretation which she now espouses. Nearly a year after 1 July 2006, ie the date upon which she now suggests that the deed of sale became inoperative, she wrote the following letter to applicant's attorneys; it is dated 4 June 2007 and reads as follows;

"As requested I attach the signed Power of Attorney to enable your clients to make the necessary application to obtain the removal of the restriction against the construction of a double storey dwelling on the site. I wish to reiterate that I am against the proposal of the Sectional Title Scheme. The suspensive condition in the agreement has no time limit; I believe a reasonable period in which to obtain approval of plans would be six months. I accordingly herewith give notice that if the suspensive condition is not met by 5 December 2007 the agreement will lapse."

In the ultimate paragraph of her said letter, first respondent in fact contends that the suspensive condition had to be fulfil led within a reasonable time, and that a reasonable time would lapse within six months of 4 June 2007. This is a unilateral and entirely subjective determination of the period which would be reasonable for fulfilment of the suspensive condition in clause 14 of the deed of saEe. No objective grounds or evidence are put forward to justify her unsubstantiated statement in this regard.

In view of my aforesaid findings, I do not consider it to be necessary to deal with the application to strike out certain portions of first respondent's answering affidavit, it may be that certain averments are liable to be struck out, but even if these allegations are to be retained as part of the background circumstances, same do not, in my opinion, change or supplement the plain meaning of clause 14, read with clause 5 and the rest of the relevant provisions of the deed of saie.

Without attempting to prejudge the issues which will be debated in future litigation between the parties, I hold the view, particularly on the clear wording of the deed of sale, that applicant should obtain final relief at the trial. It accordingly follows that the balance of convenience favours the granting of interim relief. I am also of the opinion that in view of first respondent's declared intention to transfer the property to Dr Eloff, applicant will effectively be left without a suitable alternative remedy if interim relief is refused. First respondent's alleged impecuniosity would also render any future claim for damages rather ineffective.

In the circumstances I am satisfied that applicant should be granted interim relief. As to costs, I intend following the usual practice in this regard, namely that costs are to stand over for determination by the trial court. I should add that no costs order is made in regard to the striking out application of applicant.

In the result the following order is made: