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TRANSCRIPT
2018-03-29
DEED OF SALE FOR A PLOT IN THE DEVELOPMENT KNOWN AS
entered into between:
COMDEV THE AVIARY (PTY) LTD
REGISTRATION NUMBER: 2015/189689/07
(‘the Seller’)
and
___________________________________________
(‘the Purchaser’)
Provisional Erf No. _______, The Aviary
2018-03-29
CONSUMER PROTECTION ACT NOTICE
THIS AGREEMENT MAY BE SUBJECT TO THE PROVISIONS OF THE
CONSUMER PROTECTION ACT NO. 68 OF 2008, DEPENDING ON THE
STATUS OF THE PURCHASER.
In complying with the Consumer Protection Act, certain portions of the Agreement have been
printed in bold italics. The reason for this is to specifically draw the Purchaser’s attention to these
clauses as they either:
limit in some way the risk or liability of the Seller or any other person;
constitute an assumption of risk or liability by the Purchaser;
impose an obligation on the Purchaser to indemnify the Seller or any other person for some cause; or
is an acknowledgement of a fact by the Purchaser.
Kindly ensure that before signing this Agreement that you have had an adequate
opportunity to understand these terms. If you do not understand these terms or if you do
not appreciate their effect, please ask for an explanation and do not sign the agreement until
the terms have been explained to your satisfaction.
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1. PARTIES
1.1 The Parties to this Agreement are –
1.1.1 Comdev The Aviary Proprietary Limited, Registration Number:
2015/189689/07; and
1.1.2 The Purchaser as defined in clause 1 of Annex 1.
1.2 The Parties agree as set out below.
2. DEFINITIONS
In this Agreement, unless the context indicates otherwise –
2.1 Words and phrases defined in the Annex shall have the meanings assigned to
them therein;
2.2 the/this "Agreement" means the agreement as set out in this document,
including all annexes hereto;
2.3 "Annex" refers to the annex to this Agreement;
2.4 “Bond Amount” means the amount referred to in clause 8 of Annex 1;
2.5 "business day" means any day other than a Saturday, Sunday, or Public
Holiday;
2.6 "business hours" shall be construed as being the hours between 08H30 and
16H30 on any business day;
2.7 “Commission” means the commission due to the Estate Agent as contemplated
by clause 19.1, and stipulated in clause 7 of Annex 1;
2.8 “Conditions Precedent” means the conditions precedent contemplated by
clause 6.1;
2.9 “Conveyancers” means Walkers Incorporated of 15th Floor, Plein Park, Plein
Street, Cape Town;
2.10 “Consumer Protection Act” means the Consumer Protection Act 68 of 2008;
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2.11 “Deposit” means the amount referred to in clause 2 of Annex 1;
2.12 “Development” means the construction of 7 (seven) residential dwellings upon
the Land, of which the Property forms part.
2.13 "day" means a calendar day;
2.14 “Estate Agent” means the person referred to in clause 6 of Annex 1;
2.15 "include" means "include without limitation", and the use of the word "include"
followed by a specific example or examples shall not be construed as limiting the
meaning of the general wording preceding it;
2.16 ”Land” means Erf 4225 Kommetjie, situated in the City of Cape Town, Western
Cape Province;
2.17 "law" means any law of general or special application, including the common law,
any statute or other enactment or legislative measure of government (including
local, provincial, and national government), and further includes any circular,
directive, interpretation note, or regulation of a statutory or regulatory body;
2.18 “month” means a calendar month;
2.19 "Parties" means the Purchaser and the Seller; and "Party" means any one of
them as the context may require;
2.20 "person" means any company, close corporation, juristic person, natural person,
partnership, trust, or other entity whether or not having separate legal
personality;
2.21 “Plan” means the means the plan approved by the local authority for the
construction on the Property, a copy of which is hereunto annexed marked
Annex 2;
2.22 “Property” means the immovable property referred to in clause 3 of Annex 1;
2.23 “Public Holiday” means a day gazetted as such by the government of
South Africa;
2.24 “Purchase Price” means the amount referred to in clause 4 of Annex 1;
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2.25 “Purchaser” means the person defined in clause 1 of Annex 1;
2.26 "shall", "will", and "must" used in the context of an obligation or restriction
imposed on a Party have the same meaning;
2.27 “Seller” means Comdev The Aviary Proprietary Limited, Registration Number:
2015/189689/07;
2.28 "Signature Date" means the date and time at which this Agreement is signed by
the Party to do so last in time; so the "Signature Date" shall only occur once all of
the Parties have duly signed this Agreement;
2.29 "South Africa" means the Republic of South Africa;
2.30 "under this Agreement" means, in terms of, pursuant, under, and arising from
this Agreement, including its breach or termination;
2.31 "VAT" means value-added tax and all other charges, duties, imposts, levies,
taxes, and withholdings imposed and/or levied under the Value-Added Tax
Act 89 of 1991;
2.32 "writing" means legible writing in English, and includes printing, typewriting,
lithography, or any other mechanical process, as well as any electronic
communication in a manner and a form such that it can conveniently be printed
by the recipient within a reasonable time and at a reasonable cost;
2.33 "ZAR", "R", or "Rand" means the lawful currency of South Africa.
3. INTERPRETATION
3.1 In this Agreement, unless the context indicates otherwise –
3.1.1 the name thereof is for convenience only, and is not to be used in its
interpretation;
3.1.2 clause headings are for convenience only, and are not to be used in its
interpretation;
3.1.3 a defined term in title case shall be given its meaning as defined, while the
same term appearing in lower case shall be interpreted in accordance with its
plain English meaning;
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3.1.4 a derivative of a term defined herein or in accordance herewith bears a
cognate and/or corresponding meaning;
3.1.5 a stated number of business days shall be determined by excluding the first
and including the last business day;
3.1.6 a stated number of days shall be determined by excluding the first and
including the last day, provided that if the last day falls on a day that is not a
business day, the stated number of day shall be deemed to end on the
business day next succeeding the last day;
3.1.7 if the due date for performance of an obligation under this Agreement is a day
which is not a business day, then the due date for performance of the relevant
obligation shall be the immediately next succeeding business day;
3.1.8 if a number is expressed in numerals and in words, and there is a conflict
between the two, unless there is a patent error in the expression in words, the
latter shall prevail;
3.1.9 no provision shall constitute a stipulation for the benefit of any person who is
not a party to this Agreement;
3.1.10 an expression which denotes a gender includes the other genders;
3.1.11 an expression which denotes a natural person includes a juristic person and
the other way around;
3.1.12 an expression which denotes the singular includes the plural and the other
way around;
3.1.13 a reference to a clause is a reference to a clause in this Agreement;
3.1.14 a reference to a Party shall include a reference to that Party’s successors in
title and assigns allowed at law;
3.1.15 a reference to time shall be based upon South African Standard Time;
3.1.16 a reference to an agreement or document shall be construed as a reference to
such agreement or document, as amended, varied, novated, or supplemented
from time to time;
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3.1.17 a reference to any law shall be construed as a reference to that law as at the
Signature Date, and as amended or substituted from time to time;
3.2 Any provision conferring a right to or imposing an obligation on a Party, and
appearing in a definition in clause 2 or elsewhere in this Agreement, shall be
given effect to as if it were a substantive provision in the body of this Agreement.
3.3 The rule of construction that this Agreement shall be interpreted against the Party
responsible for the drafting of this Agreement shall not apply.
4. COMMENCEMENT AND DURATION
4.1 This Agreement binds the Parties as of the Signature Date.
4.2 This Agreement shall, terminate once the Parties have exercised their respective
rights and claims and have fulfilled their respective duties and obligations under
this Agreement.
5. SALE AND PURCHASE
The Seller hereby sells the Property to the Purchaser, on the terms and conditions
set out in this Agreement, and the Purchaser concomitantly purchases the Property
from the Seller.
6. CONDITIONS PRECEDENT
6.1 Notwithstanding clause 4.1, this Agreement is subject in its entirety to the
fulfilment of all of the conditions precedent (the “Conditions Precedent”) set out
in clauses 7, 8 and, if applicable, clause 9.
6.2 If the Conditions Precedent are not timeously fulfilled, or waived by the Parties in
accordance with clause 35.11 (Variation), this Agreement shall automatically
terminate, and the Parties shall forthwith be restored as near as may be to the
position which they would have been in had this Agreement not been entered
into.
6.3 No Party shall have any claim against any other Party pursuant to the non-
fulfilment of the Conditions Precedent as contemplated in clause 6.2 save for any
claim to be restored as contemplated in clause 6.2.
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7. PRE-SALES – CONDITION PRECEDENT
7.1 This Agreement is subject to the Condition Precedent that Pre-sales of 70% of
the Development be achieved.
7.2 This condition shall be fulfilled once written agreements have been concluded in
respect of the sale of 5 of the 7 erven comprising the Development to third party
purchasers, and all conditions precedent contained in such agreements have
been fulfilled, the deposits have been paid and the agreements become valid and
enforceable.
8. BUILDING AGREEMENT – CONDITION PRECEDENT
8.1 It is recorded that the Property is sold on a plot and plan basis and that the Seller
has appointed TGP Construction Cape Town (Pty) Ltd as the preferred building
contractor for the construction of all building works in the Development, including
the installation of services and the building works in respect of the common
property forming part of the Development.
8.2 The appointment of TGP Construction Cape Town (Pty) Ltd as aforesaid means
that TGP Construction Cape Town (Pty) Ltd will be permanently on site and, as
such, is able to do the building work at a reduced cost and is readily available to
deal with any queries or questions that the Purchaser may have during the
construction.
8.3 Accordingly, although the Purchaser has freedom of choice to appoint his
own contractor he herewith acknowledges the convenience and economic
benefit in appointing TGP Construction Cape Town (Pty) Ltd as the building
contractor and waives his right to appoint another contractor.
8.4 This Agreement is subject to the Condition Precedent that the Purchaser and
TGP Construction Cape Town (Pty) Ltd conclude a written agreement for the
construction of the structures on the Property in accordance with the Plan.
8.5 In the event that this suspensive condition is not fulfilled, this Agreement shall
lapse and be of no further force or effect.
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9. MORTGAGE BOND – CONDITION PRECEDENT
9.1 The provisions of this clause 9 only apply if the Bond Amount exceeds R0.00.
9.2 If the provisions of this clause 9 apply, the Agreement is subject to the Condition
Precedent that the Purchaser obtain a loan, from a bank or other recognised
financial institution, to be secured by a mortgage bond over the Property for the
Bond Amount, or such lesser amount as the Purchaser may accept, by no later
than 30 (thirty) days after Signature Date or such later date as the Seller in his
sole discretion may allow. The Purchaser shall ensure that all reasonable steps
are taken to enable the loan to be timeously granted.
9.3 Without prejudice to the provisions of clause 9.2, it is recorded that –
9.3.1 The Purchaser shall be obliged –
9.3.1.1 to lodge in proper form the application for the said loan within
7 (seven) days of the Signature Date;
9.3.1.2 to furnish the Seller, within 7 (seven) days of receipt of a written
request, with –
9.3.1.2.1 The date of lodgement of the abovementioned application;
and
9.3.1.2.2 The name of the financial institution to which the Purchaser
made the application, and the Seller is hereby authorised to
obtain all such information in respect of such application
from the said financial institution as the Seller may require;
9.3.2 The grant of a loan in principal subject to funds becoming available shall
not be regarded as compliance by the Purchaser with the condition
stipulated in clause 9.2.
9.4 This condition shall be deemed to have been fulfilled on the date upon
which the bank / financial institution issues a written loan quotation to the
Purchaser on the terms stated therein.
9.5 In the event that this suspensive condition is not fulfilled, this Agreement shall
lapse and be of no further force and effect.
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10. PURCHASE PRICE
10.1 The Purchase Price shall be the amount set out in clause 4 of Annex 1.
10.2 The Purchase Price is, unless otherwise stipulated, inclusive of VAT.
10.3 In the event that the rate of VAT [which is currently 15%] increases or decreases
after the Signature Date, and such increase applies to this Agreement, the
Purchase Price will be increased or decreased accordingly.
11. DIRECT MARKETING COOLING-OFF RIGHT
11.1 In terms of section 16 of the Consumer Protection Act, if this sale has resulted
from direct marketing by the Seller or its agents the Purchaser has the right to
cancel this Agreement without reason or penalty by written notice within 5 (five)
business days after the Agreement was concluded.
11.2 The Seller is not prepared to enter into this Agreement with any Purchaser if the
transaction has resulted from direct marketing. The Purchaser warrants that
this transaction has not resulted from direct marketing and the Seller
enters into this transaction relying entirely upon such a warranty.
11.3 If the Purchaser is successful in cancelling this Agreement by relying upon the
right of cancellation flowing from the direct marketing provisions of the Consumer
Protection Act, the Purchaser shall be liable for the damages suffered by the
Seller as a result thereof on the basis of the Purchaser’s breach of warranty.
12. PAYMENT OF THE PURCHASE PRICE
12.1 The Purchaser shall pay the Purchase Price to the Seller in the following manner:
12.1.1 The Purchaser shall pay the Deposit on the date of signature of this
Agreement by the Purchaser.
12.1.2 The balance of the Purchase Price shall be paid against registration of
transfer of the Property into the name of the Purchaser.
12.2 The Deposit shall be held in trust by the Conveyancers, who shall invest the
same in an interest bearing account, which interest shall accrue to the
Purchaser.
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12.3 The Purchaser hereby instructs the Conveyancers to invest the Deposit in an
interest bearing account with a bank or other registered financial institution in
terms of section 78(2)(A) of the Attorneys Act number 53 of 1979, with interest on
such investment being payable to the Purchaser. It is in the Purchaser’s interest
to invest the monies in this fashion as interest on the attorneys regular trust
account does not accrue to the Purchaser. Although the attorneys will select one
of the reputable South African banks for the investment of the deposit, the
Purchaser acknowledges that the deposit will not be protected in the
unlikely event that the bank goes insolvent (bankrupt).
13. GUARANTEE FOR THE BALANCE OF THE PURCHASE PRICE
The Purchaser shall, within 10 (ten) days of fulfilment of the Conditions Precedent
set out in clause 8 and, if applicable, clause 9, provide the Seller with a guarantee
from a bank in a form acceptable to the Seller, in its sole discretion, for the payment
of the balance of the Purchase Price.
14. TRANSFER
Transfer of the Property shall be passed by the Conveyancers, and shall be given
by the Seller and taken by the Purchaser as soon as reasonably possible after the
payment by the Purchaser of the Purchase Price.
15. COSTS OF TRANSFER
15.1 The Purchaser shall pay all transfer costs attendant upon the registration of the
Property.
15.2 Should the Purchaser be registering a bond over the Property to finance any part
of the Purchase Price, the Purchaser shall, on demand, pay the costs of any
such bond including the fees charged by the bank and the attorneys registering
the bond. These amounts are not included as part of the costs of the
transaction in Annex 1, as the Purchaser cannot be obliged to enter into a
mortgage agreement and the Seller has no control over the fees that might
be charged for the bond by the bank or the attorneys.
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16. POSSESSION AND RISK
16.1 Possession of the Property shall be given by the Seller, and taken by the
Purchaser, on the date on which the Property is registered in the name of the
Purchaser, from which date the Purchaser shall be liable for the risk of loss and
profit in the Property, which means that the Purchaser will be responsible for
anything that might happen to the Property and be responsible for all costs
relating to the Property, including all rates, taxes and other charges levied upon
the Property (including levies due to the applicable home owners’ association)
plus Value Added Tax (“VAT”) thereon, if applicable and shall receive all
benefits from the Property.
16.2 The Purchaser is aware that the Property forms part of a property development,
the planning and execution of which is subject to numerous factors outside of
the Seller’s control. While every effort will be made by the Seller to ensure that
the development is proceeded with, there is no guarantee to this effect. Should
the Seller be incapable of obtaining transfer of the erf on which the Property is
to be constructed, or should the development lose its commercial feasibility, or
should the development not occur for any reason in the Seller’s discretion, then
the Seller will be entitled to cancel this Agreement on notice to the Purchaser,
who shall then be entitled to return of its deposit.
17. HOME OWNERS’ ASSOCIATION
17.1 The Purchaser acknowledges that a Home Owners Association (“HOA”) will be
established to regulate, control and manage the common interests of the owners
of properties in the Development. On registration of transfer the Purchaser will
become a member of the HOA and be bound by its constitution. The Purchaser
specifically acknowledges that he will be liable for levies plus VAT thereon, an
estimate of which is detailed in clause 9 of Annex 1.
17.2 The Seller reserves the right to install fibre optic communication or any other data
and/or voice communication services in respect of the development as well as a
network to serve each individual unit within the development. In the event that
the Seller so elects to install the aforesaid communication and network, an
additional levy per month shall be imposed upon the owners by the HOA for
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these services. The Purchaser specifically acknowledges that he or she will be
liable for this additional levy plus VAT thereon, an estimate of which is detailed in
Annex 1.
17.3 The Purchaser herewith acknowledges that he has received and read a copy of
the Constitution of the HOA and understands the contents thereof.
17.4 The Purchaser must get the written consent of the HOA when it sells this
Property and the next owner must also get consent if it in turn sells the Property.
The deeds office will not transfer the Property without these consents (See also
Clause 34).
18. CONDITION OF THE PROPERTY AND WARRANTIES
18.1 The Parties record that the Property comprises vacant land and is sold
voetstoots, in the condition that it stands.
18.2 The Seller shall not be liable for any deficiency in the extent of the Property, nor
shall the Seller benefit from any surplus in the extent.
18.3 The Property is further sold subject to all the conditions and servitudes reflected
on the title deed to the Property. The Purchaser further acknowledges that the
Seller may in future require access and/or services servitudes to be registered
over the Private open space in favour of adjoining erven, in order to
accommodate the proper functioning of the development as a whole. In order to
enable the Seller to register the said servitudes, the Purchaser hereby agrees
and consents to such registrations. There shall be no consideration payable by
either party to the other or to any third party for or in respect of such servitudes.
18.4 The Seller shall not be required to indicate to the Purchaser the position of the
beacons or pegs upon which the Property and/or the boundaries thereof.
19. COMMISSION
19.1 The Seller shall be liable for payment of the Commission to the Estate Agent on
registration of transfer of the Property to the Purchaser in the amount agreed.
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19.2 The Purchaser warrants to the Seller that the Estate Agent was the sole effective
cause of the sale contemplated in this Agreement, that no other person
introduced the Purchaser to the Property, and the Purchaser indemnifies the
Seller against any claims for commission other than as contemplated in
clause 19.1.
20. IMPROVEMENTS TO THE PROPERTY
20.1 The Purchaser shall not, prior to the registration of transfer of the Property into
the name of the Purchaser, effect any improvements to the Property.
20.2 Any improvements made to the Property prior to the registration of transfer
of the Property to the Purchaser, which are of a permanent nature, shall
become the property of the Seller without compensation to the Purchaser
or any lien or right of retention whatsoever.
21. ELECTRICAL COMPLIANCE CERTIFICATE
The Parties record that the Property comprises vacant land and accordingly an
Electrical Compliance Certificate in terms of the Electrical Installation Regulations,
2003 (issued in terms of the Occupational Health and Safety Act, 1993) (the “ECC”)
is not required.
22. WATER INSTALLATION COMPLIANCE CERTIFICATE
The Parties record that the Property comprises vacant land and accordingly a Water
Installation Compliance Certificate in terms of City of Cape Town: Water By-law
2010, is not required.
23. GAS INSTALATION COMPLIANCE CERTIFICATE
The Parties record that the Property comprises vacant land and accordingly does
not contain a gas installation and therefore a Certificate of Conformity issued by an
authorised person in terms of Government Regulation No.734 of 2009 (the “GICC”)
is not required.
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24. ELECTRIC FENCE CERTIFICATE OF COMPLIANCE
The Parties record that the Property comprises vacant land and is not serviced by
an electric fence and, as such, an Electric Fence System Certificate of Compliance
issued by a registered electric fence installer in accordance with the provisions of the
Electric Machinery Regulations of 2011 in terms of Government Regulation No.734
of 2009 (the “EFCC”) is not required.
25. BEETLE INFESTATION
The Parties record that the Property comprises vacant land and accordingly does
not need to be inspected by a Government approved entomologist for infestation by
notifiable beetle.
26. STATUTORY APPROVALS
The Purchaser is aware that the Property forms part of a new township
development and as such the Seller is relying on obtaining certain town
planning, environmental and other statutory and regulatory approvals before
it will be in a position to transfer the Property to the Purchaser; including, but
not limited to, approval of the site development plan, building plans,
Homeowners’ Association Constitution and architectural guidelines of the
intended development, of which the Property forms part, which may be
pending, and/or amended before being finally approved. Should the required
approvals not be obtained within a reasonable time, or should the regulatory
authorities require material amendments to the intended development, then
the Seller will be entitled to cancel this Agreement on notice to the Purchaser,
in which event all monies paid by the Purchaser in terms of this Agreement
will be repaid.
27. BREACH BY THE PURCHASER
27.1 Should the Purchaser –
27.1.1 fail to make payment on due date of any amount due to the Seller in terms
of this Agreement; or
27.1.2 fail to fulfill any of his other obligations under this Agreement on due date,
including failing to sign any documentation relating to the passing of
transfer of the Property to the Purchaser and/or delivery of any certificates
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in terms of this Agreement, and remain in default of such obligation for a
period of 7 (seven) days after receipt of written notice from the Seller
demanding that the Purchaser rectifying such default then, and in any such
event, the Seller shall be entitled, but not obliged, and without prejudice to
any other rights the Seller may have in terms of this Agreement or at law to
forthwith, and without further notice to the Purchaser, to –
27.1.2.1 claim specific performance by the Purchaser of the
Purchaser’s obligations in terms of this Agreement; or
27.1.2.2 terminate this Agreement forthwith, in which event the
Purchaser shall forthwith vacate the Property and restore
vacant occupation thereof to the Seller.
27.2 Upon termination as a result of the breach by the Purchaser, the Seller shall be
entitled to retain the deposit as reasonable pre-estimated damages in addition to
any further rights it may have.
27.3 In the event that the Seller incurs any costs in the enforcement of the Seller’s
rights in terms of this Agreement, or enforcement of any of the Purchaser’s
obligations in terms of this Agreement, pursuant to a breach by the Purchaser of
the Purchaser’s obligations in terms of this Agreement, the Purchaser shall be
liable for the payment of such costs on a scale as between attorney and own
client, including tracing fees and collection commission.
28. REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants to the other Party that –
28.1 it has full power to enter into this Agreement and to perform its obligations under
of this Agreement, and it has taken all steps required for its obligations to be
legal, binding, and enforceable;
28.2 it will not contravene any law, or any contractual or other obligation, by entering
into this Agreement, and complying with its obligations under this Agreement;
28.3 the natural person(s) who signs and executes this Agreement on its behalf is
validly and duly authorised to do so;
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28.4 it is not prohibited in terms of its founding documents, or otherwise, from
concluding or giving effect to the terms and conditions of this Agreement;
28.5 to the best of its knowledge and belief, it is not aware of the existence of any fact
or circumstance that may impair its ability to comply with all of its obligations
under of this Agreement;
28.6 it is entering into this Agreement as principal (and not as agent or in any other
capacity);
28.7 the other Party is not acting as a fiduciary for it;
28.8 it is not relying upon any statement or representation by or on behalf of the other
Party, except those expressly set forth in this Agreement;
28.9 it has consulted with its own legal, regulatory, tax, business, investment,
financial, accounting and other advisers to the extent it has deemed necessary,
and it has made its own decisions based upon its own judgement and upon any
advice from such advisers as it has deemed necessary, and not upon any view
expressed by the other Party; and
28.10 it is entering into this Agreement with a full understanding of the terms,
conditions, and risks thereof, and it is capable of and willing to assume those
risks.
28.11 all information related to such Party that such party has furnished to the other,
whether set out in this Agreement, including the Annex, or furnished in compliance
with such Party’s obligations in terms of this Agreement, is true and correct.
28.12 that it is not currently and until transfer of the Property to the Purchaser, will not be
in default of any income or other tax law obligations to the South African Revenue
Service (SARS) which will serve to delay the obtaining of a transfer duty receipt /
exemption certificate from SARS or serve to cause the financial institution granting
mortgage finance to the Purchaser (if applicable) to withdraw the mortgage finance
offered.
29. COSTS
Each Party shall bear its own costs in respect of the negotiation, settlement and
drafting of this Agreement.
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30. ADDRESSES
30.1 For purposes of this Agreement, the Parties select as their respective addresses
for serving summons and levying execution the physical addresses, and for
giving or sending any notice, the said physical addresses as well as the email
addresses set out in clause 5 of Annex 1, provided that a Party may change its
physical address or its email address to any other reasonably acceptable
physical address or email address by written notice to the other Party to that
effect. Such change of physical address or email address will be effective 5 (five)
business days after receipt by the other Party of the written notice of the change.
30.2 Any notice to be given under this Agreement must be given in writing.
30.3 Notwithstanding anything to the contrary contained in this Agreement, a written
notice or communication actually received by one of the Parties, including by its
agent, from another, including by way of facsimile transmission, shall be
adequate written notice or communication to such Party.
31. JOINT PURCHASERS
If there is more than one Purchaser in terms of this agreement, they shall
each be fully liable for all of the obligations of the Purchaser and these
obligations shall not be able to be divided between these Purchasers, i.e. the
liability of each of the Purchasers shall be joint and several.
32. SIGNATURE
This Agreement may be executed in counterparts, each of which shall be deemed
an original, and all of which together shall constitute one and the same Agreement
as at the date of signature of the Party last signing one of the counterparts.
33. PAYMENTS
33.1 All payments due by the Purchaser to the Seller in terms of this Agreement shall
be paid –
33.1.1 on due date, without demand, and free of any set-off or exchange and without
any deduction whatsoever.
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33.1.2 by way of an electronic transfer of cleared funds, immediately available to the
Seller.
33.1.3 To the Conveyancer’s under-mentioned trust account:
Standard Bank Account Number: 070 124 442
Cape Town Branch Code: 051 001
Account Holder: Walkers Inc.
33.1.4 In such manner that –
33.1.4.1 The payer bank shall not in any manner whatsoever be entitled or obliged
to reverse such electronic transfer; and
33.1.4.2 The payee bank shall have immediate, unrestricted, and irrevocable
access to all funds so transferred.
34. TITLE CONDITIONS
The following special conditions in favour of the HOA, will be registered against the
title deed of the Property, namely:
Restriction on Alienation: This erf shall not be sold or alienated in any way nor
shall any transfer thereof be registered without the written consent of the HOA,
which consent will not be unreasonably withheld.
35. LEGAL PERSON(S) / SURETYSHIP
35.1 In the event of the Purchaser or Seller being a Company, Close Corporation or
Trust, the signatory hereto by virtue of his signature hereunto warrants that he is
duly authorised by such Company, Close Corporation or Trust to enter into the
agreement of sale and that this agreement is binding upon and enforceable
against such Company, Close Corporation or Trust.
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35.2 The signatory for and on behalf of the Purchaser or Seller as the case may be
hereby binds himself/herself in his/her personal capacity as surety to and in
favour of the party to whom any obligation is owed in terms hereof for the
obligation/s of the party so owing the obligation, and waiving the benefit of
excussion. What this means is that if the Purchaser cannot pay that person who
signs for the Purchaser, he/she will have to personally pay and vice versa.
36. MISCELLANEOUS
Assignment
36.1 No Party shall be entitled to cede its rights, to delegate its obligations, or to
assign its rights and obligations under this Agreement without the prior written
consent of the other Party.
Consent to Jurisdiction
36.2 The Parties hereby consent to the non-exclusive jurisdiction of the High Court of
South Africa, Western Cape Division, Cape Town in respect of all disputes,
matters and causes arising in any manner whatsoever out of or in connection
with this Agreement.
Continuation
36.3 The cancellation, expiration, or other termination of this Agreement shall not
affect those provisions of this Agreement which expressly provide that they will
operate after such cancellation, expiration or other termination, or which of
necessity must continue to endure after such cancellation, expiration, or other
termination, notwithstanding that the relevant clause may not expressly provide
for such continuation
Governing Law
36.4 This Agreement shall be governed by South African Law
Implementation
36.5 Each Party (or Every Party if there are more than two Parties) shall exercise its
rights and comply with its obligations under this Agreement in a manner
consistent with the law.
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Operation
36.6 If the operation of this Agreement is conditional or suspensive upon the
happening of any event, and if any obligation or restriction imposed on the
Parties or any one of them is clearly intended to be implemented and given effect
to notwithstanding the fact that this Agreement conditional or suspensive, then
the relevant obligation or restriction shall nevertheless apply and be given effect
to, and the relevant provisions shall create binding obligations on the Parties
Relaxation
36.7 Any latitude, extension of time, or other indulgence which may be given or
allowed by a Party to another Party in respect of the performance of any
obligation hereunder, and any delay or forbearance in the enforcement by a
Party of any right hereunder, shall not in any circumstance be construed to be an
implied consent or election by such Party, and shall not operate as a waiver or a
novation of or otherwise adversely affect any of such Party's rights Party this
Agreement, or estop or preclude any such Party from enforcing at any time and
without notice, strict and punctual compliance with each and every provision
hereof.
Severability
36.8 Each and every provision of this Agreement is severable from the other
provisions of this Agreement, and should a provision of this Agreement be in
conflict with any law, or be held to be unenforceable or invalid for any reason
whatsoever, that provision shall be treated as if not part of this Agreement, and
shall be severable from the remaining provisions of this Agreement, which shall
continue to be of full force and effect.
Supersession
36.9 This Agreement supersedes and replaces any and all agreements between the
Parties and undertakings given to or on behalf of the Parties in relation to the
subject matter hereof.
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Variation
36.10 An addition to or variation, consensual cancellation, or novation of this
Agreement shall only be valid, binding, and of any force or effect if reduced to
writing and duly signed by the Parties.
Waiver
36.11 A waiver of any right arising from this Agreement or its breach or termination
shall be only be valid, binding, and of any force or effect if reduced to writing and
duly signed by the Party making the waiver.
Amendment due to existing, new and/or amended legal provisions
36.12 The Seller shall be entitled, on written notice to the Purchaser, to amend and/or
vary the terms and conditions of this Agreement as a result of any application of
existing, new and/or amended law(s), rule(s), ordinance(s), tax(es), statute(s),
requirement(s), code(s) and regulation(s) of all governmental authorities
applicable to this Agreement.
Whole Agreement
36.13 This Agreement constitutes the whole agreement between the Parties as to the
subject matter hereof, and no agreement, representation, or warranty between
the Parties regarding the subject matter hereof other than those set out herein
are binding on the Parties.
37. RESALES
37.1 Until such time as the Seller has sold all the plots in the development, the
Purchaser is not allowed to sell or in any way dispose of the plot purchased in
this agreement, except in favour of the Bank where the Purchaser has breached
the loan agreement with the Bank. The Seller may however give the Purchaser
written authority to sell before that date has arrived.
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37.2 The Purchaser shall ensure and warrants that any subsequent agreement
relating to the sale, alienation or disposal of the plot, shall contain this clause.
Notwithstanding any such resale, the Purchaser shall ensure that his guarantees
(or finances) shall remain available and in place at all times, and shall be obliged
to take transfer of his plot. The Purchaser shall not be entitled to pass transfer to
his purchaser simultaneously when taking transfer his plot.
***** ***** ***** ***** *****
The Purchaser is once again alerted to the fact that by signing this agreement the
Purchaser will, on signature by the Seller, be contractually bound to an agreement
with the Seller. The Purchaser should therefore not sign this agreement until the
Purchaser has carefully considered the merits of the agreement and allowed enough
time for this consideration. As already mentioned on the first page of this agreement
the Purchaser must ask for an explanation for any portion of this agreement which
the Purchaser does not understand and preferably get the explanation in writing. The
portions of the agreement that are in bold print are especially important.
SIGNED at ………………………….. on this …… day of …………………….. 201………….. As witnesses:
For and on behalf of the PURCHASER
Signature
Name of Signatory
Designation of Signatory
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SIGNED at ………………………….. on this …… day of …………………….. 201………….. As witnesses:
For and on behalf of the SELLER
Signature
Name of Signatory
Designation of Signatory
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ANNEX 1 TO THE SALE AGREEMENT
1. Purchaser Full name(s): ID / Registration number(s)
Contact/telephone numbers Work:
Home:
Cell:
Fax:
Marital status: Married / Unmarried If married: Married according to S.A. Law YES/NO Out of Community of Property / In Community of Property Married according to Foreign Law being the Laws of:
If married in community of property, full names of Spouse:
2. Deposit: R
3. Property:
4. Purchase Price (including VAT): R
VAT on the purchase price R
Transfer costs R
VAT on Transfer costs R
Transfer cost disbursements R
Total transfer costs R
Total price of transaction, (including all R
applicable taxes)
2. 5. Addresses:
Name Physical Address email
The Seller
3rd Floor, Combined HQ, 4 Bridal Close, Tyger Falls Bellville, 7530
Marked for the attention of SANETTE LE ROUX
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Name Physical Address email
The Purchaser
Marked for the attention of
3. 6. Estate Agent:
4. 7. Commission: R
5. 8. Bond Amount: R
[if left blank then this agreement shall not be
subject to the granting of a bond]
For the bond application the Purchaser will be using:
Elect Property Trust No 7 t/a Combined Finance Yes/No
Investec Yes/No
RMB Yes/No
Private Banker Yes/No
9. Levy per month: R _____________________
10. Additional Estimate Levy per month for Data and Telecommunication services:
R____________________ (including VAT)
Purpose for which the Unit will be used: ______________________________________________
The Purchaser must record here, for the record and for the Seller to know, the representations and
promises not recorded in the agreement, that have been made to the Purchaser by the Seller
and/or the agent and/or a person acting on behalf of the Seller which has caused the Purchaser to
enter into this agreement:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(If additional space is required please continue on another page, sign it, and annex it to the
agreement)
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Purchaser’s Questionnaire;
Do you have an income tax reference number and if
so, state it
If you do not have an income tax reference number
then disclose the amount of your income for the last
12 months
R _____________________
If you are a non-resident of South Africa then state
your country of residence and your passport number
Country
Passport No.
For what purpose do you intend to use the property
[i.e. primary residence, rental, etc.]
Are you a registered VAT vendor YES NO
If you are a registered VAT vendor do you intend to
claim any tax inputs arising from this transaction. If so
what is your VAT registration number
YES NO
No. _____________________
How did you hear about the development?
The Purchaser hereby acknowledges receipt of a copy of this agreement
___________________________ _____________________________
PURCHASER PURCHASER