IN THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION

IN THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION NOT REPORTABLE DATE: 31/3/2006 In the matter between: SINDISWA VESTAL KHOZA PLAINTIFF AND HOLOGRAPHIX PROPERTIES 357 CC UYS & CO ATTORNEYS 1ST DEFENDANT 2ND DEFENDANT MAVUNDLA, J JUDGMENT [1] On the 25th January 2004 the Plaintiff signed an offer to purchase certain immovable property described as Erf PNT 170 Farm Doornandje 386 J.R. Pretoria from the 1st defendant. On the 26 January 2004 the 1st defendant signed the acceptance of the said offer. [2] The purchase price was the sum of R110000.00 (one hundred and ten thousand rand) which was payable as follows in terms of clause 2 of the agreement: "2.1. R5000.00 (five thousand Rand) to be deposited with the conveyancer within 10 days of acceptance of this offer. The conveyancer shall deposit this sum in an interest bearing account for the benefit of the purchaser. 2.2. The sum of R105000.00 (one hundred and fifty thousand Rand) shall be paid in cash upon registration of the property into the name of the purchaser, to be secured within 10 days of acceptance hereof, by a bank or

2 other approved guarantee in favour of the seller or his nominee, and expressed to be payable against such transfer. [3] Clause 8.of the agreement provides that: '8.1 Should either party breach any provision of this agreement and fail to remedy such breach within 10 days after dispatch of written notice requiring such breach to be remedied, the aggrieved party shall be entitled, without prejudice to any obligations whether or not due for the performance and in either event without prejudice to the aggrieved party's right to claim damages. The aggrieved party shall be entitled to receive or retain as rouwkoop or a genuine pre-estimate of damages or on account of any pending determination by court or actual damages sustained, the balance of the deposit and any other monies paid by the purchaser after deduction of commission payable to the agent in terms of clause 7 hereof. The plaintiff paid the deposit of R5000.00 as stipulated with the conveyancer, who is the 2nd defendant. She subsequently effected certain payments the sum total thereof including the aforesaid deposit amounts to R102000.00. Subsequently the plaintiff brought an urgent application against both the defendants herein to interdict them from transferring and or registering the said property into the name of any other purchaser pending the finalization of the present action. Such interdict she obtained on the 16 September 2004. The costs thereof were however reserved pending the outcome of this action. 2

3 [4] The agreement has, inter alia the following provisions: 4.2 Clause 5.1 provides that: The Transfer shall be affected by the seller Conveyance's Uys and Company Tel -------------within a reasonable time after the Purchaser has complied with the terms of Clause 2 hereof. All costs incidental to Transfer, including Transfer Duty, Transfer Fee, and Vat (where applicable) and Stamps shall be paid by the Purchaser on demand. 4.1 Clause 12 provides that: The parties choose domicilium citandi executandi for all purposes hereunder after their address stipulated under their respective names, in the preamble to this agreement. All notices required to be given by one party to the other shall be in writing and shall be deemed to be received at the address on the third day following the posting thereof by prepaid post or on the date of delivery thereof if delivered by hand. 4.3 Clause 14 provides that: The seller undertakes to keep the repayment on any existing bond up to date and further to pay upon demand by the Conveyancers, any deficit required to give transfer to the Purchaser. 3

4 [5] The cause of action is pleaded as follows 5.1. The Plaintiff has duly performed in terms of the contract; more specifically the plaintiff has paid the full purchase price and the legal fees to the conveyancers, 5.2 The First defendant has failed to perform, alternatively failed to perform duly in terms of the contract between Plaintiff and Defendant in that; 5.2.1 On or about 12 July 2004 the First Defendant made a demand that all outstanding amounts in terms of the contract be paid by the plaintiff within seven days, failing which the First Defendant would cancel the agreement 5.3 Above breach of the contract by the First Defendant constitutes a repudiation of the contract, which repudiation is not accepted by the Plaintiff; 5.4 Not withstanding full payment of all amounts due in terms of the contract by the plaintiff, the First Defendant has failed and/or refused to transfer the property into the name of the Plaintiff. [6] The Defendants have pleaded inter alia as follows: 6.1 The defendant denied the allegations (that the plaintiff had performed) as if specifically traversed. 6.2. The First Defendant specifically pleads that the Plaintiff breached the agreement: 4

5 6.2.1 by failing to secure or guarantee the full balance of the purchase price, after payment of the deposit, within 10 days of the conclusion of the agreement, as provided for in clause 2.2 of the agreement; and 6.2.2 by failing to pay all cost incidental to transfer, including inter alia transfer fees, stamp duty and vat on demand, as provided for in clause 5.1 of the agreement, 6.3 The First Defendant pleads further that on the 12 July 2004, the Plaintiff was given notice as required by clause 8.1 of the agreement that she was in breach of her obligations as set out in paragraph 5.2 above and that the agreement would be cancelled in the event of her not remedying her breach; 6.4 The Plaintiff failed to remedy her breach as required by the notice and the First Defendant duly cancelled the agreement in writing on the 26 of July 2004; [7] The First Defendant further denied that it is obliged to transfer ownership of the property to the Plaintiff as the agreement of sale was cancelled prior to the Plaintiff making full payment. AD COMMON CAUSE FACTS [8] The following facts are by agreement between the parties common cause: (a) The contract between the parties; 5

6 (b) That the plaintiff did not provide the Second Defendant with a bank guarantee for the purchase price; (c) That the plaintiff had paid the full purchase and transfer fees on 2 August 2004; (d) That the plaintiff had received the letter dated 12 July 2004 from Oliver Reprich, being the estate agent. The Plaintiff contends that she cannot recall the exact date thereof; (e) That Ms Joubert, an employee of the second defendant and during early July 2004 had telephonically requested payment of the amount of R13656-00, being the balance of the purchase price and transfer fees. (f) That, on 12 July2004, the plaintiff had already made payment to the second defendant in the amount of at least R102000.00; (g) That the letter from the Second Defendant dated the 12 July2004 addressed to the plaintiff was posted on the on the 13 July 2004; and (h) That the letter from Dean Rees & Associates dated the 26 July 2004 addressed to the plaintiff was posted on the 27 July 2004. [9] The plaintiff was the only witness. The defendants closed their cases without testifying or calling any witness. 6

7 AD PLAINTIFF'S EVIDENCE: [10] The plaintiff in her evidence confirmed having entered into the agreement with the 1st defendant. She referred to clause 2 of the agreement and confirmed the purchase amount to be R110000.00 and the deposit being R5000.00. She confirmed that she did not apply for a loan as she had intended to pay by cash. She confirmed that her chosen domicile address was given as 8398 Popular Street Orlando Gardens Soweto. She confirmed having paid the deposit of R5000.00 to the estate agent after some time she managed to source the banking details of the second defendant who are the conveyancers. She confirmed having paid to 2nd defendant on the 24 and 25 February 2004 an amount of R5000.00 and R10, 000.00 respectively. After this payment she contacted Ms Schutter from the offices of the 2nd defendant but this person could not remember her nor the payments she had made to their offices. She was anxious about this and as the result she stopped paying as she wanted to first have confirmation about her previous payment. The sales agent undertook to look into this aspect. She stopped paying until she was telephoned on the 12 July 2004 by someone from the 2nd defendant's office inquiring about the guarantee and why her conveyancer has not contacted their conveyancer. She informed this person that she has already made some payments, but the person was still confused as to what she was talking about in regard to the payments. The person undertook to verify this and revert to her but never did so. Eventually Ms Joubert contacted her to clarify the statement and confirmed having during the 1st week of July 2004 received payments. She was informed 7

8 that the outstanding amount is R13000.00.She committed herself to pay at the end of July and Ms Joubert agreed to this. About a week later Ms Joubert called to say the seller demanded payment and threatened to cancel the agreement. She then later received a letter from Oliver Reprich the agent, after the second discussion with Ms Joubert. This letter, which is contained in the bundle of documents exhibit A was read into the record. This letter which is at page 8 of the bundle of documents exhibit A is dated the 12 July 2004. Paragraph 2 thereof reads as follows: "2 According to clause 2 of the Agreement of Sale dated 26th January 2004, you are obliged to pay the transfer costs on demand." She stated that this letter she had not received it save for the fact that it was handed to he by the estate agent. She is unable to explain why she had not received it in spite of the fact that it had been addressed to her chosen address. She confirms that she does receive post through this address. She read into the record paragraph 5 of this letter, which is to be found at page 9 of exhibit A and this state that: "5. Unless we receive payment in the sum of R13656,00 within 7 (seven) days from date of this letter, the seller will have the right to either cancel the contract and you will be liable for any damages suffered or enforce performance of the terms of the agreement." She further referred to page 10 of exhibit A and pointed out that it is a letter from her attorneys to the 2nd defendant dated the 21 July 2004, advising them of her 8

9 intended urgent application in response to their letter dated the 12 July 2004. Her attorneys further addressed another letter dated the 21 July 2004, Page 12 of exhibit A. In terms of this letter it was not disputed that she was owing the amount in terms of the purchase price nor in terms of the required cost. It was however pointed out through the said letter that the said required amount will be paid not later than the 2 August 2004. It was further pointed out that whereas the letter provided only 7 days, in terms of the agreement 10 days notice should be given and calling upon the 2 Defendant to remit another letter giving 10 days and pointing out that the rights of the plaintiff are reserved. She pointed out that a letter dated the 26 July 2004 which is at page 14 of exhibit A was addressed by attorneys Dean Rees & Associated, through which it was pointed out the 1st defendant had afforded the plaintiff more than the 10 days period to rectify her default and that the 1st defendant was therefore canceling the agreement. This letter was addressed to the plaintiff at her address in Orlando Gardens. She once more stated that she had not received this letter as well and is unable to explain why not. She conceded that this letter was posted on the 26 July 2004. She further referred to a letter at page 16 of exhibit A that was remitted to her attorneys by Dean Rees & Associates advising that the Plaintiff has had in excess of ten days to rectify such breach, but has failed to do so and that their client will be enforcing the provision of paragraph 8 of the agreement and such ancillary items as it is advised. She testified that as at the date of the letters of the 26 July2004 she had already paid an amount of R102, 000.00. She further referred to a letter at page 19 of the exhibit A, dated the 28 July 2004 addressed by her attorneys to the 9

10 1st defendant's attorneys informing them that she had not received their client's breach letter dated the 12 July 2004 save the one she received through the state agent and that she has not received any cancellation of the agreement correspondence, inter alia. The said letter further provided that the plaintiff regards the written notice of the 12 July 2004 as being null and void. She further referred to the letter of the 30 July 2004 from the 2nd defendant in which the latter advised that they will not be in a position to release the moneys to any of the parties or their respective attorneys without the joint consent of the respective parties. This letter is at page 22 of exhibit A. She confirmed that by the 2 August 2004 she had already made full payment. She had not seen the letter of cancellation nor had she received any correspondence informing her of her payments. The monies she had paid were not refunded to her. She further referred to page 25 of the exhibit which is a letter from the 2nd defendant, which letter, inter alia confirm that the plaintiff effected payments over the period of 7 month. She confirmed having been contacted per SMS on the 23 July 2004 and informed by Ms Joubert that: "Mr. Jowitt, called insists on canceling. His attorney phone Mr Uys on Monday. Mr Uys will contact you Monday. Cancel letter not sent as yet. Regards Brenda." She says there was no clarity as regards payments but cancellation was not effected. She further testified that she was not in breach as she had not been given a 10 days notice and further that payment of the balance of the purchase price was to be upon the registration of the property in her name. 10

11 She was then cross examined. She was referred to page 2 of the agreement (page 12 of exhibit A) in particular paragraph 5.1 where it says "All cost incidental to Transfer, including Transfer Duty, Transfer Fee, Vat (where applicable) and Stamps shall be paid by the Purchaser on demand." and asked as to whether such demand was made to which she responded by saying that not that she can recall of. She says that Ms Joubert did not specify as to what the amount of R13000.00 when she contacted her in early July 2004. When her attention was drawn to her founding affidavit of her interdict application that she brought against the defendants under case no 20517/2004, particular at page 13 of the relevant paginated pages at paragraph 6.1 thereof where she had said that Mr Joubert has telephoned her requesting payment of the amount of R13656.00, and that she advised her that this amount constituted the outstanding purchase price as well as the related legal fees, she conceded this fact. She further conceded that it was not correct that she had not seen the statement. LEGAL POSITION REGARDING NOTICE AND DOMICILIUM [11] In the matter of Lench and Another v Cohen and Another 2006 (2) SA 99 (W) the full bench, in a matter where the agreement contained almost identical terms as in clause 8 in the agreement relevant in this matter, the Court at 108C-D stated that "the mention of an inadequate or wrong period in which to remedy the default does not invalidate the notice. It was not a requirement of clause 8 that a 11

12 date for compliance be fixed. All that was required was that the respondents be given notice of their breach. The mistaken significance of the period in such circumstances does not invalidate the act placing the respondent in mora. (See Tangney and Others v Zive's Trustee 1961 (1) SA 449 (W) at 453F-H; and SA Wimpy (Pty) Ltd v Tzouras 1977 (4) SA 244 (W) at 249A-C and the cases there cited) The Court in regard to premature notice of cancellation referred to Nel v Cloete 1972 (2) SA 150 (A) at 163H-164A where it was held that "where a creditor envisages possible cancellation as a result of mora it can, in the notice placing the debtor in mora, also state that on failure to perform within the period fixed that it reserves the right to withdraw from the contract. The fact that the appellants stated that they would regard the contract as cancelled after 10 day period made no difference. Once the respondent fell into breach the cancellation become effectuated, since at the stage the appellant still intended to cancel the contract. Their continued intention to cancel is evident from the letter of 19 January 2004. The position that obtained is aptly described by Viljoen J in Chesterfield Investments (Pty) Ltd v Venter 1972 (2) SA (W) at 26H-27A: 'It is to my mind immaterial whether the seller relies on the original premature cancellation or whether he cancels fresh after the time for performance has expired, because the premature cancellation has in the meantime matured into a perfectly effectual cancellation and his persistence in the former attitude shows that he is still of the same 12

13 mind as before-a stated mind which, subject to the reservations stated above, he could have altered, if he had so wished, after the date of maturity of the right to cancel.' Viljoen continues as follows at 27E "The original cancellation may be premature and of no force or effect, but if, at the date on which the seller is entitled to cancel, he evinces an attitude that the contract has been cancelled, I do not think it matters whether he relies on the original premature cancellation or on the fresh cancellation, save, maybe, if the date upon which his cause of acts arose become important." Boruchowitz J at page 106B - C then considers the issue of domicile and he states that: It is settled law that unless the contrary is agreed a notice of cancellation has to be brought to the mind of the debtor. The respondents have chosen a domicilium citandi et executandi for the delivery of all documents and process. The purpose thereof is to relieve the party causing service of the notice from the burden of proving actual receipt. Tea and Coffee (Pty) Ltd (1984) (3) SA (W) at 847G-H and the case there cited. By choosing a domicilium the respondents have taken upon themselves the risk that the notice may not come to their attention...even in a case involving unoccupied or vacant land it has been held to be sufficient service if the document is affixed to a door, wall or pole. In the case of I`ons v Freeman and Frock (1916 WLD) the domicilium citandi 13

14 chosen was a vacant plot of ground and the defendants no longer used the premises. Service was effected by affixing the summons to a pole." Vide also Amcoal Collieries Ltd v Truter 1990 (1) SA 7 (AD) where it was said that it is proper service if letter of demand served at chosen address whether person present or absent there. [12] In the matter of Lench and Another v Cohen and Another (supra) the agreement provided for the payment of: (a) (b) Deposit to the agent, just like in casu, which deposit was paid; The balance against the transfer and shall be secured by guarantee acceptable to the conveyancer which shall be delivered by not later than 5 January 2005. In casu the balance was to be 'paid in cash upon registration into the name of the purchaser, to be secured within 10 days of acceptance hereof, by a bank or other approved guarantee in favour of the seller or his nominee, and expressed to be payable against such transfer.' In the Lench matter the respondents had until midnight of the 5 January 2004 to submit the guarantees. The appellant in the afternoon of the 5 January 2004 remitted a letter to the respondents, reminding the respondents of the date and time of the provision of the guarantees and indicated its intention to cancel the agreement should the respondents remain in breach for a period of 10 days without rectifying their breach. The appellants averred that they received a 14

15 facsimile dated the 6 purportedly from the respondents undertaking to furnish guarantees within the 10 day period. It was common cause in that case that the respondents did not effectuate timeous payment of the purchase price. The deposit of R30, 000.00 was paid some time before the 23 October 2003. On the 16 January 2004 a sum of R145000.00 was paid into the appellants attorneys trust account, and on the same day certain guarantees were furnished. These guarantees did not cover the full balance of the purchase price which was only paid on 19 January 2004. On that date a sum of R130000.0 was remitted by the respondents' bankers Investec to the appellant's attorneys trust account. On the same date, the appellant's attorneys remitted a letter to the respondents referring to their letter of the 5 January 2004 and confirmed the cancellation of the contract. The court a quo had found that the letter of the 5 January 2004 was not a valid letter of demand as prescribed in the agreement, and that the respondents were not validly placed in mora. On appeal the Court found that although this letter was prematurely delivered, in the sense that the respondents had until midnight on 5 January 20004 to deliver their guarantees, once they fell into breach the appellants had every right to invoke the notice provision and the notice given would have become effectuated. [13] Whereas in the above Lench matter the appellants as early as on the 5 January 2004 evinced their intention to cancel the agreements as the result of the failure on the part of the respondents to provide the required guarantees, in casu although 15

16 the guarantees had not been provided within 10 days of the acceptance of the offer to purchase, the defendants remained supine and allowed the plaintiff to continue effecting payments without calling for the provision of the guarantees. The 1st defendant had the right to call upon the plaintiff to rectify this breach of providing the guarantee immediately the stipulated 10 day period had lapsed. It however did not immediately employ this right. The first letter of demand, albeit its short period of seven days, was dated the 12 July 2004 calling for the payment of R8000.00 in respect of balance of the purchase price and R5656.00 in respect of the transfer cost. This was almost 7 (seven) months from the signing of the agreement. AD WAIVER [14] In the matter of Pretoria Stadsraad v Administrateur, Transvaal 1962 (4) SA 467 at page 476B the following is cited: In die Veband het hy verwys na Roodepoort - Maraisburg Town Council v Easter Properties (Pty) Ltd, 1933 W.L.D. 224 waar Greenberg, R, dit duidelik stel dat: "Waiver is a form of contract and it is necessary that there should be an intention to waive; it would seem therefore that before applicant can be held to have intended to surrender its right it must know its right." 16

17 It appears from a passage in Halsbury vo1.13, sec205 that the chief element in laches is aquiescence, which implies that the person acquiescing, is aware of his rights. In discussing the question of waiver I deal with this point and what I said there applies equally to the question of laches." Die opskrif in North Eastern Districts Association (Pty) Ltd v Surkhey Ltd 1932 W.L.D. 181, is die volgende: "The English law defense of waiver, acquiescence and laches are not in every respect part of Roman Dutch law. The corresponding defense in South Africa is that the plaintiff has by his conduct lost the right which he possessed." Op bl. 186 sê Krause, R., die volgende: ".. I do not think that all these doctrines, although they have from time to time in certain cases been approved of by our courts, are in every respect part of Roman - Dutch law. I think that where the court has to deal with the conduct of individuals from which it is claimed that rights have accrued to others that one has to scrutinize carefully the circumstances of that conduct and then to say from a common sense point of view, adopting the first elementary principles of law, whether or not the person by his conduct has or has not lost the rights which he possessed." 17

18 Die geleerde Regter maak daarna melding van die maatstaf wat Lord Blackburn in Erlanger v New Somber & Phosphate Co., 3 A.C. 1218, in die verband aan die hand doen, en wat hy (Krause, R.) later bereid was om self aan te wend, nl... "...I think from the nature of the enquiry it must always be a question of more or less depending on the degree of diligence which might reasonably be required and the degree of changing which has occurred whether the balance of justice or injustice is in favour of granting the remedy or withholding it..." Na my mening bevat die onmiddelike voorafgaande passasie, (wat ek onderstreep het,) die juiste uitganspunt wat in die onderhawige geval toegepas moet word" [15] The facts are that the plaintiff paid R5000.00 on the 24/02/2004; R10000.00 on the 28/02/2004; R80000.00 on the 16/04/2004 and R 7000.00 on the 11/05/2004 thus totaling R102000.00. The defendants continued to accept the said payments. The 2nd Defendant is the appointed agent of the 1st Defendant to whom payments were effected. The 2nd Defendant was not only an agent where payment had to be effected but was also the conveyancer for the 1st Defendant and therefore any waiver by the 2nd Defendant is binding on the 1st Defendant as well thus making it distinguishable from the matter of Dunseith v Munro 1962 (3) SA 105 where 18

19 payment were effected at the bank and the court found that the bank was not the agent but merely the chosen place of effecting payment. The plaintiff spoke to Ms. Joubert who agreed to the plaintiff effecting payment at the end of July 2004. Ms Joubert is an employee of the 2nd Defendant. The defendants are bound by the misrepresentation made to the plaintiff that her undertaking to effect payment at the end of July 2004 are acceptable. In this regard vide Ravene Plantation, Ltd v Estate Abrey 153 and Others 1928 AD 143 at 153 where Wessels JA said: "It is a well-known principle of our law that a master is liable for the act of his servant so long as the servant does the act in the course of his employment, even though the act is an unlawful one, Estate van der Byl v Swanepoel (1926 A.D. 141)". Consequently, in my view, the balance of justice is in favour of adopting the stance that the defendants had by conduct waived whatever right they had in demanding that the plaintiff should provide security for the balance of R105000.00 within 10 days of acceptance of the offer. Besides, once the right to call for the provision of the guarantees had been waived, then the purchase price only became due and payable upon the registration of the immovable property into the name of the plaintiff. The demand for the payment of the balance of R8000.00 was far premature since at that stage there was absolutely no attempt on the part of the defendants to register the property into the name of the plaintiff. The defendants had not testified and in the premises, in the 19

,. 20 absence of any evidence to the contrary, it is logical to conclude that there was at that stage no such effort to register the said property into the name of the plaintiff, and I accordingly conclude as such. Vide Middleton v Goble 1970 (1) SA 56 (D) at that stage the payment of the full purchase price was not as yet due and payable. [16] The other bases upon which the purported cancellation is premised, according to the letter of the 12 July 2004 is calling upon the plaintiff to pay the amount of R5656.00 being the transfer cost. As I have indicated herein above, Ms Joubert had during the second week of July 2004 acceded to the request by the plaintiff that the balance will be paid at end of July 2004, As a matter of fact on the 2 August 2004 the plaintiff had already paid the full purchase price and the transfer cost. In The Principles of Law of Contract 6th edition Kerr at pages 602-603 states that a breach is a major one if it 'goes to the root of the contract', or affects a "vital part" of the obligations or means that are 'substantial performance'. It amounts to saying that the breach must be so serious that it cannot reasonably be expected of the other party that he should continue with the contract and content himself with an eventual claim for damages. He further at the same page cites the following: In Aucamp v Morton 1949 3 SA 611 at 619, cited in, by, at page 603 Watermeyer CJ says: "We are dealing in this case with a contract involving reciprocal obligations of which several, of varying importance, rest upon the 20

21 appellant, and it is usually laid down with regard to such cases that a breach by one party of one of the obligations resting on him will only give the other a right to treat the contract as discharged if the breach is one which evinces an intention on the part of the defaulter no longer to be bound by the terms of the contract for the future, or if the defaulter has broken a promise, the fulfillment of which is essential to continuation of the contractual tie." [17] I am of the view that having regard to the fact that the plaintiff as at the time of the letter of the 12 July 2004 had already made a substantial payment in the amount of R102 000.00, there was no justification for the defendants to have at that stage called for the payment of the amount of R5656.00. On perusal of annexure SFK9 at page 35 of the application under case no.20517/2004, which the plaintiff was referred to under cross examination, it is noted that there is provision made for an amount of R1000.00 towards provisional rates and taxes which is to be adjusted on registration and which amount has been included in the amount of R5656.00. Therefore the amount of R5656.00 that has been demanded was as a whole not due at that stage. The amount of postages and petties also included in the aforesaid amount could only have been due and payable after the transfer and therefore there was no need to call for payment of that amount at that stage. I am of the view that the demand of the 12 July 2004, seen as a whole was defective and was therefore not a proper demand. Besides, I am of the view that whatever amount that was due for purposes of effectuating the transfer, such 21

22 amount is less than the amount demanded and it cannot be said that such amount would fall within the realm of major or "vital importance" as referred to herein above. I am consequently of the view that, for the reason I have expressed herein above the balance of justice demands that the relief sought by the plaintiff should be given. I therefore find that the 1st defendant through the letter of the 12 July 2004 was in breach of the contract and therefore repudiated the contract, which repudiation was not accepted by the plaintiff. The plaintiff has sought specific performance and is therefore entitled thereto. [18] The remaining aspect is the question of cost. The applicant had to bring an application against the defendants to stop them in disposing of the relevant property pending this action. She was successful in that application. The costs were however reserved. Prior to bringing the relevant application, plaintiffs attorney addressed a letter, which is dated the 28 July 2004, to the attorneys for the 1st defendant in terms whereby it was conveyed that the plaintiff tenders payment of the balance of the purchase price on or before the 2 August 2004 and calling for an indication of acceptance or refusal as well as an undertaking not to dispose of the property until the disputes have been adjudicated upon.the undertaking was to be given before the end of business 29 July2004 failing which an urgent application was to be brought. The response by the defendant's attorneys to this request was coughed in their letter dated the 4 August 2004 in the following terms: 22

23 "2. We confirm that our client has authorized us to accept service on its behalf in so far as any threatened urgent application is concerned; 3. We look forward with much interest to receiving your client's papers. 4. Please be advised that should we not receive your client's papers by close of business this week, it is our client's intention to obtain payment of the amount being held by Uys & Co to it by this firm." It is clear from the said letter that the plaintiff had no alternative but to rush to court as she was urged or coaxed to do. The request was not unreasonable, in my view. Had the plaintiff asked for the punitive cost, I think she would not have been out of step in so doing and I see no reason why she would not have been entitled thereto. Since she merely asked for a cost order, she cannot get more than what she asked for and I shall according grant her only costs she asked. [19] With regard to the cost of this action the general principle is that the costs follow the event and I see no reason to depart from that. Therefore the following order is made: (a) That the first defendant is ordered to effect transfer of the property known as Plot 170 of the Farm Doornrrandje 386 J.R., Pretoria, into the name of the Plaintiff. (b) That the First Defendant pays the costs of this action; 23

24 (c) That the First Defendant, as the First Respondent in the application under case no. 20517/2004 pays the costs of that urgent application. 24

25 HEARD ON THE: 22/03/2006 DATE OF JUDGMENT: 31/03/2006 APPLICANT'S ATT: HERMAN SMALMAN APPLICANT'S ADV: SJ MYBURGH DEFENDANT'S ATT: KIRSTEN CROSS DEFENDANT'S ADV: S BANOW 25