IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:

JUDGMENT

FOURIE, J:

This matter has a long and chequered history and involves two parties who were previously romantically involved with each other. During the relationship they concluded a written agreement of sale on 28 April 2008, in terms of which respondent purchased a two-seventh share in certain immovable property of the applicant for a purchase price of R310 000,00. It is common cause that she paid an amount of R310 000,00 to applicant, but he has failed to effect transfer of this   share   to   respondent,   as   a   consequence   of   which, respondent contends, she cancelled the agreement and claimed repayment of the sum of R310 000,00, as well as an amount of R14 500,00 expended by her on improvements to the dwelling on the property.

In November 2008, respondent issued summons against applicant under case number 18322/2008 for payment of the aforesaid amounts, and in view of applicant's failure to deliver a notice of intention to defend, default judgment was granted to respondent on 6 February 2009. I should add that default judgment was only claimed and granted in respect of the claim for repayment of the sum of R310 000,00. The default judgment came to the attention of applicant during February 2009. This prompted an application by applicant under case number 3566/2009 in which he sought the rescission of the default judgment. In the founding papers it was alleged that applicant's attorney, one Potgieter, "unfortunately forgot" to enter an appearance to defend on behalf of applicant. However, no explanation at all was given of the circumstances surrounding the unfortunate lapse of memory of the attorney.

"3. The writs of execution and/or any sale under case number 18322/2008 be stayed.

4. The dismissal of the application under case number 3566/2009 be set aside and the applicant be given an opportunity to be heard."

In fact, I believe that to describe the attorney's conduct as "negligent", is putting it rather mildly. He was not only informed of the date of the hearing by facsimile messages sent by respondent's attorney on 3 March 2010, 10 March 2010, 14 March 2010 and 17 March 2010, but also advised telephonically by respondent's attorney on 4 March 2010, of the date of the hearing In addition, respondent's counsel, at the request of his instructing attorneys, faxed his heads of argument to Attorney Potgieter on 27 August 2010, i.e. three days before the hearing of the application, thereby conveying that the hearing of the first rescission application was imminent.

In his affidavit, Potgieter attempts to explain that he did not receive these faxes, due to the fact that the secretary who operated the relevant computer on which the faxes would have appeared, had left his firm and, therefore, the faxes did not come to his attention. This explanation is rather unconvincing, particularly in view of the content of the affidavit filed by respondent's attorney, pointing out receipt of documentation from applicant's attorney via this fax number. Regarding the two telephone calls made to Potgieter by respondent's attorney on 4 March 2010, as confirmed by the respondent's attorney's contemporaneous note, Potgieter merely says that he "does not recall" receiving these calls.

In view of the evidence provided by respondent's attorney of these telephone calls and their content, I would have expected Potgieter to elaborate by, for example, referring to his system of keeping file notes of telephone calls or the diarising of files upon receipt of a trial date, to show whether or not he had received the calls. The most plausible conclusion in these circumstances is that Potgieter did receive notice of the trial date of 30 August 2010, but for some unknown reason failed to arrange for an appearance on behalf of applicant at the hearing.

In view of the aforegoing, I find that applicant has dismally failed to provide a reasonable explanation for the failure to appear at the hearing of the first rescission application on 30 August 2010. In fact, for the reasons already furnished, I am of the view that the unconvincing explanation provided by Potgieter and the absence of any explanation on the part of applicant, is fatal and that on this basis alone, the first rescission application should be dismissed.

It appears to me that, on the strength of the conduct of the parties, it can justifiably be argued that they both waived any right which they may have had in terms of clause 8, to rely upon the non-fulfilment of this condition within the stipulated 30 day period. It seems to me that clause 8 was inserted for the benefit of both parties and either of them could, therefore, waive its provisions as to the time limit, bearing in mind that such waiver had to take place before the expiry of the 30 day period. It further appears to me that, on the facts set out in the answering affidavit in the first rescission application, it can be argued that the parties had, at least by their conduct before the expiry of the 30 day period, consented to waive their respective rights to rely on the 30 day period referred to in clause 8 of the agreement.

Applicant alleges that, in terms of this oral agreement, respondent made this payment in the nature of a loan to enable applicant to effect improvements to his dwelling. He further says that the loan would be repaid when he would sell his property after a period of three years and respondent would then receive a two-seventh share in the net proceeds of such sale. The conclusion of such an oral agreement, judged merely on the face thereof, seems rather improbable. Not only is the applicant unable to provide the specific date of the conclusion thereof, but it seems highly unlikely that respondent wouldl advance such a substantial amount to applicant without any proof in writing as to the terms of the repayment. Respondent would also have no form of security for the repayment of the amount which would now be spent on improving the applicant's immovable property.

There would also be no guarantee that she would be able to recover the amount of the loan, particularly having regard to the unstable property market which has been experienced from approximately 2008 onwards. In fact, as appears from applicant's attorney's letter dated 12 August 2010, the respondent's two-seventh share in the net balance of the sale of the property, would presently only amount to R171 429,00, i.e. only approximately 55% of the amount originally advanced to applicant.