Platinum Property Enterprise (Pty) Ltd / McShane and The Registrar of Deeds (Case no: 11611/2022)

What is repudiation?

In the Court’s words, a repudiatory breach of contract is one which justifies the injured party in resiling from the contract. Repudiation of a contract is when one party, whether by words or by their conduct, indicates their intention to the other party to no longer be bound by the contract. Once a party has repudiated, the other party has the option to either cancel the contract or to claim specific performance. The test for repudiation is whether the repudiation exhibits a deliberate and unequivocal intention to no longer be bound.

In this case, the issue of repudiation arose when Platinum (the first Purchaser) requested that the transfer of the property be kept on hold until the issue of costs (resulting from the dispute caused by the second sale) had been finalised by the Court. When the Purchaser demanded to pend the transfer of the property, the Seller informed it that it had repudiated the Sale Agreement and further that she would be cancelling the Sale Agreement based on its repudiation.

The Court had to decide whether the Purchaser’s actions amounted to repudiation and, if that was the case, whether the Seller validly cancelled the sale agreement. The Court took the stance that the Purchaser’s conduct did not constitute repudiation of the sale agreement as the Purchaser brought an application for specific performance (that the transfer process continue), thus the Purchaser considered itself to be bound by the Sale Agreement. The Court further stated that the Purchaser’s instructions to pend the transfer process until the Court adjudicated as to costs did not amount to repudiation. The Court further stated that the Purchaser did not indicate that it would not perform in terms of the sale agreement, therefore said actions did not amount to repudiation.

Conduct towards the parties to the agreement

It’s important to note that the Court also frowned upon the way in which the Conveyancer in this transaction dealt with the elderly Seller. The Court mentioned that the Sale Agreement clearly indicated that the Seller instructed the Conveyancer and, as such, the Seller was their client. In this case, the Conveyancer placed the Seller to terms on the instruction of the Purchaser. The Seller felt bullied and intimidated by the Conveyancer’s actions. The Court stated that the Conveyancer clearly did not act in the Seller’s best interest and that the Conveyancer was “switching sides”. The Court further referred the Court order to the Legal Practice Council to investigate the conduct of the Conveyancer.

The Court highlighted the principle of ubuntu and how people, especially the elderly, should be treated with human dignity, empathy, and compassion.

Conclusion

Parties to a sale agreement and Conveyancers alike should bear in mind who appoints the Conveyancer to transfer the property. As the Court mentioned, when dealing with the elderly one must take into account the principle of ubuntu by being compassionate and empathetic. After all, selling your home, whether you are young or old, can be daunting.

One can only wonder if this finding by the courts did not make the ancient philosopher Aristotle turn in his tomb as, according to many a scholar after him, the law has always been regarded as “reason without passion”. Further to this, ethics 101 as well as previous court decisions always dictate that conveyancers must act in the interest of both parties to the transaction and not choose sides.

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Written by Joy Carvalho

Moderated and approved by Wessel de Kock