THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 231/08
No Precedential Significance

GOPAUL SEWPERSADH
First Appellant
ROSHNI DEVI SEWPERSADH
Second Appellant

and

SURIAPRAKASH DOOKIE
Respondent

Neutral citation: Sewpersadh v Dookie (231/08) [2009] ZASCA 78 (1
June 2009)

Coram:
STREICHER ADP, JAFTA and MAYA JJA, HURT and
TSHIQI AJJA

Heard:
20 MAY 2009

Delivered:
1 JUNE 2009

Summary:
Sale of land – termination of agreement of sale –
whether conduct of parties after valid cancellation
thereof tantamount to a revival of the agreement.

_____________________________________________________________

ORDER
_____________________________________________________________

On appeal from: High Court, Durban (Swain J sitting as court of first
instance).

1.
The appeal succeeds with costs.
2.
The order of the court below is set aside and replaced with the
following order:
‘(a) The written contract of purchase and sale entered into by the
applicants and the respondent on 7 October 2003 is hereby declared
and duly cancelled.
(b) The respondent is hereby ordered to vacate the business
premises situated at 19 Inwabi Road, Isipingo Rail, KwaZulu-Natal
forthwith.
(c) Should the respondent fail to vacate the said premises upon
service of this Order, the Sheriff is hereby authorised and directed
to immediately evict him from the said premises.
(d) The respondent is ordered to pay the costs of this application.’

_____________________________________________________________
JUDGMENT
_____________________________________________________________

MAYA JA (STREICHER ADP, JAFTA and MAYA JJA, HURT and
TSHIQI AJJA concurring):

[1] The appellants, a married couple, are the registered owners of
immovable property situated at 19 Inwabi Road, Isipingo Road,
KwaZulu-Natal, also known as Lot 60 Parukville, (the property). On 7
October 2003, they concluded a written agreement with the respondent
for the sale of the property in terms of which the respondent was given
possession and occupation of the property upon his signature. Consequent
to the respondent’s failure to pay the purchase price within the period
stipulated in the agreement, the appellants sought an order in the Durban
High Court (Swain J) declaring the agreement to be cancelled, evicting
the respondent from the property and ancillary relief.

[2] The court below refused the application on the basis that although
the agreement had been validly cancelled, it was subsequently revived by
the parties’ conduct and that such revived agreement did not have to meet
the formalities contained in the Alienation of Land Act 68 of 1981 for its

validity.1 With the leave of the court below, the appellants now appeal
against its judgment that the agreement had been revived.

[3] Briefly stated, the background facts of the matter are as follows.
The appellants were in a precarious financial position and faced a
looming threat by their local authority to sell the property in execution to
discharge the substantial arrears in rates and taxes which they owed. The
first appellant then sought assistance from the respondent, a long-time
fellow businessman and neighbour. They struck an agreement under
which the respondent would purchase the property and settle the
appellants’ various debts with the purchase price. Such price, fixed at
R500 000, was to be paid in a rather elaborate manner described in more
detail later in the judgment, but essentially in monthly instalments of not
less than R20 000 within 24 months from the date of the signature of the
sale agreement.

[4] As they are wont, things did not go according to plan and the
purchase price had not been paid in full at the end of the contract period.
There was some dispute as to whether this constituted a breach of the
agreement as the respondent alleged that despite repeated requests, the

1 In terms of section 2 (1) of the Alienation of Land Act of 1981 ‘[n]o alienation of land … shall be of
any force or effect unless it is contained in a deed of alienation signed by the parties  thereto or by their
agents acting on their written authority’.

appellants had failed to supply him with statements indicating the
outstanding amount. This, the appellants denied. There was disagreement
also about the frequency of the payments and whether the payments
reduced the capital or interest portions of the debts and how such interest
arose. Be that as it may, on the respondent’s own version only an amount
of R428 912 had been paid by 22 March 2007 when he prepared his
answering affidavit, long after the expiry of the contract period.

[5] The appellants gave the respondent written notice to rectify the
breach in terms of the agreement. When payment was not made within
the requisite period the appellants cancelled the contract on 5 April 2006.
Thereafter, on 29 May 2006, they launched the application.

[6] The respondent nevertheless continued making payments. Sums of
R5 000, R50 000 and R20 000 were paid into the appellants’ account on 4
July, 12 August and 25 October 2006, respectively. But nothing turned on
these payments as it does not appear from the papers when the appellants
became aware of them. In the appellants replying affidavit the first
appellant, who deposed to the affidavit said that he had recently received
a statement from Standard Bank reflecting these payments. A
controversial payment, as will appear later in the judgment, is one made
in December 2006 when the first appellant requested a sum of R50 000

from the respondent apparently to purchase a house for his daughter and
the respondent gave him R30 000. Regardless of this payment, however,
the application remained pending and on 22 March 2007 the respondent
filed his answering affidavit followed shortly by the appellants’ reply on
2 April 2007.

[7] In the court below, the respondent denied that he was in breach of
the agreement or that it had validly been cancelled. His main contentions
were that the letter of demand placing him in mora was defective as it did
not specify the breach complained of and that the appellants impliedly
waived any right they may have had to cancel the agreement by
continuing to accept payments after the purported cancellation. However,
no allegation of a waiver had been made in the papers before the court.

[8] The court below accepted that the appellants did not rely on the
respondent’s breach to make full payment within 24 months in their letter
of demand, but found that their reliance on the breach in their founding
affidavit was sufficient. The court concluded that the appellants had
established that the respondent was in breach of the agreement which
entitled them to cancel the agreement as they did. In its view, the
cancellation excluded the possibility of the waiver contended for by the
respondent. The court however held that the appellants’ request for a sum

of R50 000, the payment by the respondent of R30 000 ‘in respect of the
purchase price’ in response thereto and the appellants’ failure to tender
the return of the additional payments made by the respondents and the
respondent’s lengthy delay of ten months in filing his answering affidavit,
all amounted to a new agreement by the parties to revive the cancelled
agreement.

[9] In argument before us, the respondent’s counsel prudently did not
persist with the denial of a breach of the agreement and challenged only
the validity of the cancellation. The essence of the challenge was that the
letter of demand did not comply with the provisions of the breach clause
of the agreement, as it did not specify the breach which founded the
cancellation ie a failure to pay the outstanding balance within 24 months,
such that the right to cancel did not accrue to the appellants.

[10]  The procedure to be followed by the parties in the case of a breach
is set out in clause 9 of the agreement which provides:
‘Should the Purchaser commit any breach of the provisions of this agreement (all of
which shall be deemed to be material), and remain in breach for a period of 7 (seven)
days from the date of written notice given to him by the Sellers calling upon him to
remedy such breach, the Sellers shall be entitled … to claim specific performance of
all the Purchaser’s obligations … or cancel this agreement by written notice to the
Purchaser’.

[11]  The appellants issued the impugned notice through their attorneys
on 20 March 2006. It is necessary to set it out in some detail, and it reads
as follows:
‘…
We refer to a Notice dated 12 October 2005 sent to you by … our client’s former
Attorneys, pursuant to an Agreement of Purchase and Sale entered into between you
and our clients for the purchase and sale of Erf 60 Parukville.
Our instructions are that you are still in breach of the Agreement of Purchase and Sale
in that :-
1. You have not made any payment to Business Partners and the amount due to
them as at 26 February 2006 is R246 074,52.
2. You have only paid R40 000 towards the rates due on Erf 60 Parukville and
R10 000 towards the rates due on Erf 1816 Isipingo.
3. You have not made any payment to The Standard Bank of SA Limited. The
amount currently owing to The Standard Bank is R124 237,36.
This is a final demand calling upon you to remedy the afore-said breaches within
seven days of receipt hereof. Should you fail to remedy the breaches in full our
Client intends inter alia to cancel the Agreement of Purchase and Sale and retake
possession of the property.’
Apparently, this notice failed to elicit the desired response as it was
followed by a letter dated 5 April 2006 in which the appellants notified
the respondent that in view of his failure to remedy the breach within the

stipulated period, the agreement was cancelled and requested him to
vacate the property.

[12]  The various items referred to in the notice which the respondent
allegedly neglected to pay are debts in the appellants’ banking and
municipal accounts which the respondent had to discharge on the
appellants’ behalf under the agreement in payment of the purchase price.
This is what necessitated the intricate payment scheme alluded to earlier
and it is convenient to set it out at this stage.

[13]  The scheme is contained in clause 12 of the agreement headed
‘PURCHASE PRICE’ which provides:
‘The purchase shall be in the sum of R500 000 … [and] shall be paid as follows:
(i) the Purchaser undertakes upon signature hereof to pay the sum of R25 000 to
Business Partners in respect of [bank] Account Number: 1314851003;
(ii) the Purchaser undertakes to continue making monthly payments into the said
account of Business Partners until the Sellers’ indebtedness and interest has been paid
in full;
(iii) the Purchaser undertakes to make monthly payments in respect of the Seller’s
indebtedness to Standard Bank of South Africa bearing Account Number: 211326119
in respect of a mortgage bond, which is being held by the said bank over the Sellers’
property described as Lot 1816, Isipingo situated at 92 Platt Drive, Isipingo Hills,
KwaZulu-Natal;

(iv) the Purchaser undertakes to make payment to the eThekwini Municipality – South
Operational Entity in respect of all arrear rates due by the Sellers in respect of Lot 60
Parukville [the property] and Lot 1816 Isipingo to date of signature hereof;
(v) the Purchaser undertakes to make payment of not less than R20 000 per month in
respect of the reduction of the purchase price which sum shall be distributed equally
in respect of payment to Business Partners, Standard Bank and the eThekwini
Municipality.
(vi) the Purchaser shall be liable for interest and penalties and levies in respect of each
of the above accounts;
(vii) it is recorded that the Purchaser shall complete payment of the purchase price
within a period of twenty four months from date of signature of this agreement;
(viii) the Purchaser shall be liable for all future rates and taxes from date of
occupation until date of registration of transfer;
(ix) Registration of transfer shall take place upon the Purchaser fulfilling all
conditions as above;
(x) the Purchaser’s obligations in respect of the payment of the mortgage bond to
Standard Bank shall cease when the outstanding balance in respect of the said account
is R20 000.’

[14]  The minutiae of the respondent’s contention that the notice is
defective are that (a) the breaches to which it referred, ie failure to pay
Business Partners and Standard Bank and payment of only R10 000
towards rates, were not proved, (b) it did not record the amount that the
respondent was required to pay to the various accounts, (c) it demanded

payment of more than was outstanding even though the amount was not
specified and (d) it did not disclose what was required of the respondent
to rectify the breach.

[15]  As the respondent correctly pointed out, it is indeed not so that
only a sum of R10 000 was paid by the respondent in respect of rates for
Erf 1816 as alleged in clause 2 of the letter of demand, that no payments
had been made to Business Partners and that no payments had been made
to Standard Bank. But what is clear from the demand is that the breach
alleged is the breach by the respondent to pay the full purchase price. But
submitted counsel for the respondent, the respondent did not know what
the purchase price was because, although the agreement stated that the
purchase price was R500 000 it also provided that the respondent would
be liable for interest and penalties and levies in respect of each of the
above accounts. Even if that is so the respondent knew that at least R500
000 had to be paid within 24 months and that he had not done so. To that
extent it would have been clear to him what the breach was that the
appellants required him to remedy.

[16]  The finding of the court below that the cancelled agreement was
revived by agreement between the parties may be disposed of shortly. An
agreement to revive requires ‘a fresh meeting and concurrence of the

minds’ of the parties to restore the status quo ante.2 No basis for a finding
that there was consensus between the parties that the agreement be
revived is to be found in the affidavits filed by the parties. The respondent
did not only not allege such an agreement but could not do so in the light
of his denial that he had breached the agreement and that the agreement
had validly been cancelled. Moreover, the second appellant was also a
party to the agreement of sale and, as the respondent’s counsel conceded,
there was no evidence whatsoever of her consent to the revival of the
agreement.

[17] Finally, as to the inference drawn by the court below from the late
filing of the answering affidavit, I simply cannot fathom its basis. There
is no hint at all of the reason of such delay in the papers.

[18] For these reasons the court below erred in finding that the agreement
of sale had been revived. This finding dispenses with the need to deal
with the question whether the agreement found by the court below had to
comply with the formalities prescribed in the Alienation of Land Act.

[19]  The following order is made:
1.
The appeal succeeds with costs.

2 Desai v Mohamed 1976 (2) SA 709 (N) at 712H-, United Bioscope Cafes Ltd v Moseley Buildings Ltd
1924 AD 60 at 67- 68; Neethling v Klopper 1967 (4) SA 459 (A) at 466-467.

2.
The order of the court below is set aside and replaced with the
following order:
‘(a) The written contract of purchase and sale entered into by the
applicants and the respondent on 7 October 2003 is hereby declared
and duly cancelled.
(b) The respondent is hereby ordered to vacate the business
premises situated at 19 Inwabi Road, Isipingo Rail, KwaZulu-Natal
forthwith.
(c) Should the respondent fail to vacate the said premises upon
service of this Order, the Sheriff is hereby authorised and directed
to immediately evict him from the said premises.
(d) The respondent is ordered to pay the costs of this application.’

_______________________
MML MAYA
JUDGE OF APPEAL

APPEARANCES:

For appellant:
M Pillemer SC

Instructed by:

Kissoonlal & Associates, Durban

Matsepe Inc, Bloemfontein

For respondent:
N Singh SC

Instructed by:

Ash Kirpal Attorneys, Pretoria

Fusi Macheka Inc, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
1 June 2009

Status:
Immediate

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

G SEWPERSADH & OTHER v S DOOKIE

The Supreme Court of Appeal upheld an appeal against a judgment of the
Durban High Court that an agreement of sale of land which had been validly
cancelled by the appellants was subsequently revived by the conduct of the
parties.

The high court based its decision on the facts that after the application was
instituted, the first appellant was given a sum of R30 000.00 at his request, for
the purchase of a house for his daughter; the appellants did not tender the return
of various other payments made by the respondent into their account as
payment towards the purchase price after cancellation (which they however
claimed they  became aware of belatedly) and the respondents’ inordinately late
filing of his answering affidavit.

The SCA reaffirmed the high court’s finding that the agreement had been
validly cancelled but rejected the conclusion that it had subsequently been
revived. In the SCA’s view the parties had not conducted themselves in any
manner that indicated a fresh meeting and concurrence of minds to restore the
agreement. There was also no evidence that the second appellant had consented
to such revival.