THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

NOT REPORTABLE
Case number:  257/2007

In the matter between:

ISAK GERHARDUS VAN BOSCH
Appellant

and

MAURICE ALEXANDER CHARLES
Respondent

CORAM:

MPATI DP, MAYA and COMBRINCK JJA

HEARD:

15 FEBRUARY 2008

DELIVERED:
7 MARCH 2008

Summary:

Magistrate’s Court Practice – Civil Proceedings – Exception to plea on

ground that it discloses no defence dismissed.

Neutral citation:
Van Bosch v Charles (257/2007) [2008] ZASCA 5 (7 March 2008)

____________________________________________________________________

MPATI DP:

[1] This is an appeal against the judgment of Le Grange AJ (Hlophe JP concurring), in
the Cape Provincial Division, upholding an appeal against the order of the Magistrate,
Strand, dismissing an exception taken by defendant against appellant’s plea.  The
Provincial Division refused leave and the appeal comes before us with leave of this court.

[2] On 18 April 2004 defendant (to whom I shall henceforth refer as ‘plaintiff’) signed an
offer to purchase certain fixed property situated at Gordons Bay, from the appellant (to
whom I shall henceforth refer as ‘defendant’).  The offer was accepted by defendant on 19
April 2004.  The agreed purchase price was R600 000.  The agreement, which is annexed
to the particulars of claim, was facilitated by Seeff Properties (the agent), which was
entitled, upon signature of the offer to purchase, to a brokerage fee calculated at 7.5% of
the purchase price, plus VAT, payable by plaintiff as seller.  As was required in terms of the
agreement,  plaintiff paid a deposit of R60 000 on 20 April 2004.  (The deposit was to be
paid upon acceptance of the offer by defendant.)  The deposit was paid to the agent, which
held it in an interest-bearing trust account, the interest to accrue to plaintiff pending
registration of transfer.

[3] It is not in dispute that on 22 April 2004 defendant’s attorneys, Visagie Vos and
Partners, wrote a letter to plaintiff recording that the deposit had not been paid and that
plaintiff had refused to sign the transfer documents.  Plaintiff was accordingly given notice
to pay the deposit and to sign the transfer documents within seven days of the date of the
letter;  to furnish defendant’s attorneys with a cheque in the amount of R41 629,20 to cover
transfer costs and to supply them with a Bank Guarantee for the balance of the purchase
price.  On 3 May 2004 defendant’s attorneys dispatched a further letter to plaintiff, the
second paragraph of which reads as follows:
‘With reference to our letter of demand dated 22 April 2004, addressed to yourself, we hereby confirm that you
failed to remedy some of the matters referred to in our letter of demand and that you are still in breach, and
therefore we hereby give you notice on instructions of our client, that the Deed of Sale signed by yourself on
18th April 2004 has been cancelled and that our client, the Seller, reserves his rights, without prejudice, to

claim damages from you that our client may have suffered as a result of your breach.

Yours faithfully.’
The letter was signed by D E Roux on behalf of defendant’s attorneys.

[4] Defendant responded by letter dated 20 May 2004 in which he admitted to having
informed a Mr Roux of defendant’s attorneys telephonically on 21 April 2004,1 that he would
not sign the transfer documents as he ‘believed there was a conflict of interest’ and that he
wanted his own attorney to attend to the transfer.  It appears from plaintiff’s letter that he
telephoned Mr Roux upon receipt of the latter’s letter of 22 April 2004 and advised him that
the deposit had been paid to the agent on 21 April 2004 ‘as agreed’.  Plaintiff’s letter further
states that Mr Roux ‘acted precipitously and in an adversarial manner in demanding that
[plaintiff] comply with the contents set out in the letter of 22 April 2004 and in cancelling the
alleged contract in a letter of the 3rd  May 2004’.  The last paragraph of plaintiff’s letter
reads:
‘It is obvious that Mr Roux’s client has purported to repudiate the sale and I require a full refund of the deposit,
together with interest not later than June 2nd 2004, failing which I will take such action as may be necessary . .
. .’

[5] Plaintiff subsequently issued summons in the Magistrate’s Court, Strand, against
defendant (as 1st defendant) and the agent (as 2nd defendant), for payment of the sum of
R60 000 (the deposit), together with interest.  In his particulars of claim plaintiff, having
referred to defendant’s attorneys’ letters of 22 April 2004 and 3 May 2004, makes the
following allegations:
‘14.
The aforementioned letters by the First Defendant’s attorneys constituted a repudiation by the First
Defendant of the agreement between the parties in that:
14.1
Time was not of the essence of the agreement;
14.2
The First Defendant’s attorneys were not ready and able, or otherwise in the position to lodge
any transfer documents with the Registrar of Deeds;
14.3
The demand of 22 April 2004 was therefore premature and did, in any event, not afford the
Plaintiff a reasonable time and opportunity to comply therewith;
14.4
The demand of 22 April 2004 was therefore incompetent;  and

The letter of 22 April 2004 followed upon this telephone conversation between plaintiff and defendant’s

14.5
The purported cancellation of the agreement of 3 May 2004 was therefore invalid.
15.
The Plaintiff elected to accept the First Respondent’s repudiation and terminated the agreement
between the parties.  The election was conveyed to the First Defendant by means of a letter from the
Plaintiff to the First Defendant’s attorneys, dated 20 May 2004, a copy of which is attached hereto
marked “4”.’

[6] In his plea defendant denies that the letters of 22 April 2004 and 3 May 2004
constituted a repudiation by him of the agreement.  Paragraph 11 of his plea reads:
‘11.
AD PARAGRAPH 14 THEREOF:
11.1
The First Defendant denies that the letters written by their attorneys constituted a repudiation by the
First Defendant of the agreement between the parties and puts Plaintiff to the proof thereof.
11.2
Save to admit that the First Defendant’s attorneys at the time the letters referred to in paragraphs 12
and 13 of the Plaintiff’s Particulars of Claim were written, not ready and able, or otherwise in the
position to lodge any transfer documents with the Registrar of Deeds, the remainder of the allegations
contained herein are denied and Plaintiff is put to the proof thereof.’

[7] The agent admits, in its plea, to holding the sum of R60 000 paid by plaintiff as a
deposit, but pleads that it is not in a position to determine to whom the deposit, or part
thereof, should be paid and abides the decision of the court.  It alleges, however, that in
terms of clause 142 of the offer to purchase, it is entitled to commission, plus value added
tax, in the total sum of R51 300.

[8] After defendant had delivered further particulars in response to plaintiff’s request for

attorney, Mr Roux.
Clause 14.1 and 14.2 stipulate as follows:
‘14.
BROKERAGE

14.1
Brokerage calculated at 7.5% of the purchase price plus VAT shall be due by the Seller to

Seeff upon signature hereof or if there are any suspensive conditions once the suspensive

conditions have been fulfilled.
14.2
Seeff’s entitlement to such commission is unconditional once due and shall be payable
upon Transfer of the Property or where this Agreement is breached by the Purchaser or     the
Seller, immediately upon such breach.  The Seller undertakes to pay the brokerage and
hereby irrevocably authorises Seeff, on Transfer to deduct the brokerage plus VAT thereon
from any amount it may be holding in trust in terms of Clause 3.1 hereof, or if there is no
such amount held or if the proceeds thereof are insufficient to meet the full brokerage plus
VAT then the seller hereby irrevocably instructs the Conveyancers to pay the amount, or the
balance of the amount due as the case may be, to Seeff as a first draw against the proceeds of
the sale.’

such further particulars, plaintiff excepted to defendant’s plea on the ground that it does
not disclose a defence.  It would be convenient to quote the paragraphs in the exception
relevant to this appeal:3
‘3.
Furthermore, and if a valid agreement of sale did indeed come into existence on the terms as set out
in Annexure “1” to the Particulars of Claim, the said agreement does not purport to fix a time when the
guarantee has to be furnished or when the demand for the guarantee can be made, in the sense that
First Defendant is entitled to demand, and to be furnished with, the guarantee at any time of his
choice after the agreement of sale had been concluded, and independently of his willingness or ability
at the same time to lodge the transfer documents with the Registrar of Deeds.
4.
First Defendant admits that, at the time when the demand for the guarantee and the signing of the
transfer documents was made, his attorneys were not ready and able, or otherwise in a position to
lodge any transfer documents with the Registrar of Deeds.
5.
In the premises, and in view of the aforementioned admission, First Defendant’s denial that the
demand of 22 April 2004 was premature, incompetent and that the purported cancellation of the
agreement was invalid, is not good in law.
WHEREFORE Plaintiff prays for the exception to be sustained, with costs, and for judgment to be entered in
favour of Plaintiff against First Defendant as prayed in Plaintiff’s amended Particulars of Claim.’

[9] Exceptions to a plea in the magistrates’ court are dealt with under rule 19(14) of the
Magistrates’ Courts Rules.4  It is only rule 19(14)(a) that is at issue  in this appeal.  In terms
of rule 19(15), a court ‘shall not uphold any exception unless it is satisfied that plaintiff
would be prejudiced in the conduct of his case if the plea were to stand’.  In dismissing
plaintiff’s exception the magistrate relied mainly on the latter sub-rule.  It has been held,
however, that the rule does not apply in a case where the exception taken is that the plea
does not disclose a defence.5

Paragraphs 1 and 2 of the exception were not in issue before this court and are thus not recorded here.
The sub-rule provides:
‘(14)
A plaintiff may except to the plea on the ground either –
(a)
that it does not disclose a defence to the plaintiff’s claim;  or
(b)
that it is vague and embarrassing;  or
(c)
that it does not comply with the requirements of this rule.’
See Warren v Pirie (Pty) Ltd 1959 (1) SA 419 (E) at 424E-G,  where the court dealt with rule 22(14)(a), the

predecessor to the present rule 19(15).  See too Jones & Buckle The Civil Practice of Magistrates’ Courts

in South Africa 9 ed, Vol 11 by Erasmus and Van Loggerenberg, Rule 19-48, where the authors state that

‘where an exception goes to the very root of the plea, and demonstrates a complete absence of a legal

defence, the plea cannot be allowed to stand’.

[10]  On appeal to it the Cape High Court held that ‘the letter of demand, dated 22 April
2000 by [defendant’s] attorney was . . . indeed premature and a request for a bank
guarantee, in this instance, could only have been for security and not for payment’.  The
court accordingly concluded that defendant’s plea discloses no defence and that the denial
that the letter of demand dated 22 April 2004 was not premature and incompetent is bad in
law.  It thus upheld the exception.

[11]   A reading of its judgment reveals that the court  a quo, in arriving at its conclusion
that defendant’s plea discloses no defence, only considered defendant’s attorney’s demand
for the supply, by plaintiff, of a bank guarantee as security for payment of the balance of the
purchase price.  It  is true that in the letter of demand plaintiff was called upon to supply
defendant’s attorneys with the bank guarantee and it is not in issue that at the time of
calling for the guarantee defendant’s attorneys were not in a position to lodge transfer
documents.6  Was defendant entitled, in these circumstances, to call for a bank guarantee
when his attorneys (the conveyancers) were not ready and able to lodge the transfer
documents?

[12] The rule, as laid down in Hammer v Klein and Another,7 is that a seller is not entitled
to demand a bank guarantee from the buyer ‘on a date earlier than that on which he
proposes to lodge with the Registrar of Deeds the documents required for transfer’.8  If
demand is made the buyer is entitled to ignore it without running the risk of being placed in
mora.  And since the buyer cannot know when the seller will be ready to lodge the transfer
documents, the seller has a duty, when demanding the bank guarantee, to inform the buyer
when he proposes to lodge.9  It must be mentioned, however, that the rule applies only in
cases where no time has been fixed by the contract for the provision of a bank guarantee.10
The agreement in the present matter does not fix such a time.11

See para 11.2 of the plea in para 6 of this judgment.
1951 (2) SA 101 (A).
At 106 A.  See also Linton v Corser 1952 (3) SA 685 (A) at 694A-E and Wilson v Spitze 1989 (3) SA 136

(A) at 143I-144C.
Hammer v Klein and Another, supra, at 106B-C.
Ibid, at 107F.
11           Clause 4 of the agreement provides that the purchaser ‘shall, within seven (7) days of being requested in writing

[13] In his request for further particulars to defendant’s plea plaintiff sought the following
particulars:
‘2.
AD PARAGRAPH 11.1 THEREOF:
2.1
First Defendant is requested to clarify what is meant by the statement “you failed to remedy
some (our emphasis) of the matters referred to in our letter of demand”, which appears in the
letter of the First Defendant’s attorneys dated 3 May 2004.
2.2
. . . .’

Defendant responded as follows in his reply:
‘2.
AD PARAGRAPH 2 THEREOF:
2.1
Save for payment of the deposit the Plaintiff failed to sign the requested documents or pay
the outstanding costs.
2.2
. . . .’
This  response is somewhat ineptly drafted.  But in the fourth paragraph of the letter of
demand (of 22 April 2004) defendant’s attorneys state the following:
‘We hereby give you 7 (seven) days’ notice after date of this letter, to pay the deposit, to sign all the transfer
documents, to furnish us with your cheque in the amount of R41 629,20 being transfer costs and to supply us
with a Bank Guarantee for the balance of the purchase price (R540 000,00), failing which the Seller will
exercise his rights in terms of Clause 16 of the said Deed of Sale.’
Clearly, then, the reference in defendant’s reply to plaintiff having failed to sign the
‘requested documents’ can only mean that plaintiff failed to sign the transfer documents.
The ‘outstanding costs’ must refer to the transfer costs.  The court a quo omitted to
consider the demand for plaintiff to sign the transfer documents and to pay the transfer
costs in deciding whether or not defendant’s plea discloses a defence.

[14] Plaintiff,  who argued the appeal before us in person, submitted, however, that the
finding of the court a quo was not only that the demand for the supply of the guarantee was
premature, but that ‘the letter of demand’ was premature.   I cannot agree.  If, by the finding
that the ‘letter of demand’ was ‘indeed premature’ the court conveyed that the demand for
plaintiff to sign the transfer documents was also premature, then it erred.  But I am not

by the Conveyancers to do so, furnish them with a bank guaranteed cheque, or a guarantee/s from a  financial
institution/s or other guarantee acceptable to the Seller for payment upon Transfer of the said purchase price or

persuaded that that is what it intended to find and indeed found.  In my view, the court a
quo clearly referred only to the premature demand for the supply of the bank guarantee,
which, it has become common cause, defendant was not entitled to do.

[15] Plaintiff contended further that the agreement does not prescribe that he was
required to call at defendant’s attorneys offices for purposes of signing the  transfer
documents.  He was therefore not obliged to travel to their offices.  The attorneys could
easily have dispatched the documents to his home, where he could have signed and sent
them back, so plaintiff argued.  For this reason the demand that he should call at the
attorney’s offices was incompetent and defendant cannot rely on his refusal to adhere to
the demand as a defence to his claim.

[16] It is true that the agreement does not fix the place where the transfer documents had
to be signed.  It merely stipulates that transfer shall be effected by the seller’s
conveyancers.12  Much as the agreement does not fix the place for signature, it is not
uncommon in this country for conveyancers to require a purchaser of fixed property to call
at their offices for purposes of signing transfer documents.  There was thus nothing
unreasonable in this demand, in my view.  In any event, the reason for plaintiff’s refusal to
attend at the attorney’s offices was not because he was not obliged to sign the transfer
documents there.  In his letter of 20 May 2004 he records that he was telephoned by Mr D
Roux, who ‘was acting as solicitor’ for defendant.  The letter proceeds:
‘. . . Mr Roux asked me when I could come to sign the transfer documents.  I replied that I would not attend to
sign any documents as I believed there was a conflict of interest and I wanted my own attorney to do the
transfer as I had indicated [to] the agent.  Mr Roux then wrote me a letter dated 22nd  April 2004 in which he
alleged that I had committed a breach of the terms of agreement in that I had not paid the deposit and refused
to sign the transfer documents.’

balance and any   brokerage for which the Purchaser has assumed liability.’
Clause 5 of the agreement reads:

TRANSFER

‘Transfer shall be effected by the Conveyancers:

. . .
5.3
as  close to 31.7.2004 as possible.’
It is indicated in Clause 3.1 that ‘the Sellers Conveyancers’ will be referred to onwards as ‘the Conveyancers’.

In my view, plaintiff’s argument  in this court, that he was not obliged to sign the transfer
documents at the offices of defendant’s attorneys, is clearly an afterthought.  I find that
defendant, through his attorneys, was entitled to put plaintiff on terms, ie to place him in
mora, regarding signature of the transfer documents.

[17] Plaintiff’s further contention was that defendant has admitted, in paragraph 11.2 of
his plea,13 that at the time the letters of 22 April 2004 (letter of demand) and 3 May 2004
(cancellation letter) were dispatched, his attorneys ‘had done nothing’, ie they had not
commenced with preparing the transfer documents.  Defendant was thus not entitled to
demand payment of the transfer fees, nor demand that plaintiff attend at his attorneys’
offices for signature of the transfer documents.

[18] The construction of paragraph 11.2 of the plea, as suggested by plaintiff, might well
be correct.  But the allegations made by defendant are susceptible to another
interpretation, viz that although preparation of the transfer documents had already
commenced, a stage had not as yet been reached where it could be said that the
documents were ready to be lodged.  It would indeed be anomalous if defendant’s
attorneys could demand plaintiff’s attendance for signature of the transfer documents when
those documents that required his signature were not ready for such signature.  This matter
is in any event at exception stage and whatever ambiguity there might be in the pleadings
may be cleared by evidence at the trial.

[19] Plaintiff also submitted that since the agreement does not fix the date on which the
transfer fees should be paid,14  taken together with the fact that defendant was not ready
and able, or otherwise in a position to lodge any transfer documents, the demand for
payment of the transfer fees was premature.  Having found that defendant was entitled to

Quoted in para 6 of this judgment.
Clause 6 of the agreement reads:

‘TRANSFER COSTS:

All costs of Transfer, including, but not limited to, transfer duty if applicable, and the costs of registering any

mortgage bond which may be required, as well as survey and diagram fees if applicable and any VAT

payable on such costs, shall be paid by the Purchaser.  The Purchaser shall on demand by the Conveyancers,

pay to the Conveyancers such costs as are called for by the Conveyancers from time to time.’

put plaintiff to terms concerning the signature of the transfer documents, it is not
necessary to consider the question whether or not this demand was premature.  There
seems to be nothing improper, though, in defendant demanding that transfer fees be paid,
having regard to the fact that defendant’s attorneys had required plaintiff to call at their
offices to sign the transfer documents.

[20] In support of his submission that the conclusion of the court a quo that defendant’s
plea discloses no defence was wrong, counsel for defendant contended that by refusing to
sign the transfer documents and to pay the transfer costs plaintiff committed an anticipatory
breach and repudiated the contract of sale.  Defendant accepted the repudiation.
Consequently, the plea of denial that it is defendant who repudiated the contract does
disclose a defence, so it was argued.

[21] Plaintiff, on the other hand, submitted that at no stage did defendant communicate to
him that he had repudiated the contract and that defendant had accepted such repudiation.
In fact, by his letter of demand defendant sought to enforce the contract.  The argument
thus proceeded that defendant did not accept the alleged repudiation by plaintiff.  For this
proposition plaintiff relied on the judgment of this court in Wilson v Spitze.15  I set out the
facts of that case as summarized in the headnote.  Respondent had sold to appellant a
single erf, which was to be subdivided into five erven, for R11 000,00 in terms of the deed
of sale concluded on 10 May 1982.  The special conditions of the deed of sale provided,
inter alia, that the appellant would take transfer of the first subdivided erf upon payment of
R2200,00 (appellant had to pay a deposit of R1100,00 within seven days of the date of the
sale), that the balance would be guaranteed, against registration of transfer and that
appellant would take transfer of the remaining equally priced erven by 1 April of each of the
following four years against payment of R2200,00 in each instance.  After much delay,
occasioned by appellant, which necessitated action by respondent in the magistrate’s court,
the first of the erven was transferred to him on 7 April 1983.  Respondent, through his
attorney, had already called upon appellant on 14 March 1983 to arrange to take transfer of

15 Above, footnote 8.

the second erf and had asked for an assurance that the purchase price would be duly
guaranteed and paid without any hassles.  After yet further delay, respondent, in a letter
dated 8 April 1983, called upon appellant to nominate  the next erf to be transferred and,
simultaneously, to suitably guarantee payment of the purchase price (of the second erf)  by
16 May 1983, failing which he would cancel the sale.  Appellant did not provide the
guarantee timeously, whereupon respondent cancelled the contract and sold and
transferred the remaining erven to a third party.  Appellant then sued respondent in a
Provincial Division for damages, on the grounds that respondent could not validly have
cancelled the contract because appellant had complied with all the conditions of the sale,
which contention the respondent denied.

[22] In a letter dated 23 March 1983 appellant’s attorney responded to the letter of 14
March 1983 that appellant was obliged to take transfer of no more than one plot per year.
In a previous letter of 17 March 1983 appellant’s attorney had advised the respondent’s
attorney that appellant did not have to take transfer of the second property before 1 April
1984.  The evidence revealed that neither at the time demand was made for a guarantee
for payment of the purchase price per the letter of 18 April 1983, nor on 16 May 1983 was
respondent in any position to take immediate steps to give transfer of the second plot.

[23] Respondent’s counsel’s argument in that case was that appellant’s attitude, as
evinced in the letters of 17 and 23 March 1983 amounted to a repudiation.  This court16
reasoned as follows:
‘I do not think that the attitude displayed in these two letters amounted to a repudiation of the contract, but,
assuming that it did, the repudiation was not accepted by the defendant who elected to abide by the contract
and claimed performance in [his attorney’s] letters of 8 April 1983 and 2 May 1983, thereby keeping the
contract alive.’17

[24] I do not think it is necessary for me to get into a lengthy debate on this issue.
Suffice it to say that ‘[t]he enquiry is not whether [defendant] has “accepted” the repudiation

Per Vivier JA, Hoexter, Botha, Grosskopf and Eksteen JJA concurring.
At 147A.

but whether he has elected to keep the contract in being or to cancel it’.18  Unlike
respondent in Wilson v Spitze,19  who, after the letter of 8 April 1983 in which cancellation
was threatened if the breach was not remedied, clearly sought to enforce the contract after
appellant had indicated a wish to proceed with the transaction, defendant in the present
matter cancelled the agreement.  He notified plaintiff of his election by way of the letter of 3
May 2004, where it is clearly stated that ‘the Deed of Sale signed by yourself on 18 April
2004 has been cancelled . . .’.

[25] The letter of demand, dated 22 April 2004, was in compliance with clause 16.1 of the
agreement, which provides:
‘16.
BREACH
16.1
Should either party commit a breach of any of the terms of this Agreement and fail to remedy
same within seven (7) days of being called upon, in writing, to do so the aggrieved party shall
be entitled without prejudice to his/her rights, to claim any damages that he/she may have
suffered as a result of such breach:-

16.1.1. to cancel the Agreement by written notice to the defaulting party;  or

16.1.2. to claim specific performance by the defaulting party of his/her obligations in terms of
this Agreement.’

Clause 16.1 thus created a contractual ground for cancellation, to which defendant was in
any event not bound if plaintiff’s refusal to sign the transfer documents amounted to a
repudiation of the contract.  He had the option to insist on performance of the contract or to
accept the repudiation and cancel it.20  The fact that he allowed plaintiff an opportunity to
perform in terms of the contract (to sign the transfer documents) did not mean that he was
not entitled to change his mind, upon plaintiff’s persistence in refusing to sign the transfer
documents, and to notify plaintiff that the contract was now regarded as having been
cancelled.21  I mention this merely in answer to plaintiff’s submission that defendant did not
accept the alleged repudiation but sought to enforce the contract.

Kerr The Principles of the Law of Contract 6 ed, at 589, quoted with approval in Metalil (Pty) Ltd v AECI

Explosives and Chemicals Ltd 1994 (3) SA 673 (A) at 687 B-C.
Above, footnote 8.
Metalil, above, note 17 at 683 G-H.
See the minority judgment of Nicholas AJA in Culverwell and Another v Brown 1990 (1) SA 7 (A) at 17 E-

F.  The majority did not take issue with the statement.

[26] In my view, defendant’s plea, read together with the letter of demand of 22 April
2004 and the cancellation letter of 3 May 2004, both of which are annexed to the particulars
of claim, does disclose a defence.  It follows that the appeal must succeed.

The following order is made:
(1)
The appeal is allowed with costs.
(2)
The order of the court a quo is set aside and for it is substituted the following:
‘The appeal is dismissed with costs.’

L MPATI DP

CONCUR:

MAYA JA
COMBRINCK JA