\standoc\sales\business\std1 · Web view2012/11/20 · 1.4Words and expressions...

$: \standoc\sales\business\std1 · Web view2012/11/20 · 1.4Words and expressions defined in any clause shall, unless the application of any such word or expression is specifically limited$
Memorandum of Agreement of Sale

MEMORANDUM OF AGREEMENT OF SALE

ENTERED INTO AND BETWEEN -

PURPLE RAIN PROPERTIES NO. 109 (PTY) LTD

(hereinafter referred to as the “Seller”)

of the first part

and

(hereinafter referred to as the “Purchaser”)

of the second part

Page 1 of 17 initial here


WHEREBY THE PARTIES AGREE AS FOLLOWS –

1 INTERPRETATION

1.1 In this Agreement -

1.1.1 clause headings are for convenience only and are not to be

used in its interpretation;

1.1.2 an expression which denotes -

1.1.2.1 any gender includes the other genders;

1.1.2.2 a natural person includes a juristic person and vice

versa;

1.1.2.3 the singular includes the plural and vice versa;

1.2 In this Agreement, unless the context indicates a contrary intention, the

following words and expressions bear the meanings assigned to them

and cognate expressions bear corresponding meanings -

1.2.1 "Business Day" means a day other than a Saturday or a

Sunday or a day which from time to time is a proclaimed public

holiday in the Republic of South Africa;

1.2.2 "Parties" means the parties to this Agreement from time to time

and "Party" means any one of them;

1.2.3 “Property” means Remainder of Portion 17 of the Farm

Elandsjagt No. 585, In the Drakenstein Municipality, Division



Paarl, Province Western Cape, in extent 59,7014 (five nine

comma seven zero one four) hectares;

1.2.4 "Purchaser" means_________________________________,

Registration number _________________________________,

herein represented by ________________________________,

in his capacity as a duly authorized ____________________ of

__________________________________________________

__________________________________________________

__

Tel: ___________________________________

Fax: ___________________________________

E-mail: _________________________________;

1.2.5 "Seller" means Purple Rain Properties 109 (Pty) Ltd,

Registration number 1998/016180/07, herein represented by

Ivan Carl Smook, in his capacity as a duly authorized Director

of 10 L’Ideal Close, Paarl, 7646

Tel: 082 943 0688

E-mail: [email protected];

1.2.6 “Seller’s Conveyancers” means Basson Blackburn Inc, 371

Main Road, Paarl, 7646

Tel: (021) 871 1401

Fax: (021) 872 6189

E-mail: [email protected];

1.2.7 "Signature Date" means the date of signature of this

Agreement by the Party doing so last in time;

1.2.8 "VAT" means value-added tax at the applicable rate in terms of

the Value-Added Tax Act No. 89 of 1991 (or any statutory


mailto:[email protected]



modification or re-enactment thereof) and includes any

regulations made thereunder from time to time.

1.3 Any substantive provision conferring rights or imposing obligations on

any Party in the interpretation clause shall be given effect to as if it were

a substantive provision in the body of the Agreement.

1.4 Words and expressions defined in any clause shall, unless the

application of any such word or expression is specifically limited to that

clause, bear the meaning assigned to such word or expression

throughout this Agreement.

1.5 Reference to months or years shall be construed as calendar months or

years.

1.6 No provision herein shall be construed against or interpreted to the

disadvantage of any Party by reason of such Party having or being

deemed to have structured or drafted such provision.

1.7 The eiusdem generis rule shall not apply and whenever a term is

followed by the word "including" which is then followed by specific

examples, such examples shall not be construed so as to limit the

meaning of that term.

1.8 Unless specifically otherwise provided, any number of days prescribed

shall be determined by excluding the first and including the last day or,

where the last day falls on a Saturday, Sunday or public holiday, the

next succeeding business day.

1.9 A reference to any statutory enactment shall be construed as a

reference to that enactment as at the Signature Date and as amended

or re-enacted from time to time.



1.10 This Agreement incorporates the annexure which annexure shall have

the same force and effect as if set out in the body of this Agreement. In

this Agreement the word "Agreement" refers to this Agreement and the

words "clause" or "clauses" refer to clauses of this Agreement.

2 INTRODUCTION

2.1 The Seller is the registered owner of the Property;

2.2 The Seller is desirous of selling the Property to the Purchaser, who is

desirous of purchasing same; and

2.3 The Parties wish to record the terms of their agreement in writing.

3 SALE

3.1 The Seller sells to the Purchaser, and the Purchaser purchases the

Property subject to all the conditions and servitudes mentioned or

referred to in the current, prior and/or new title deed/s of the Property

and to all such other conditions and servitudes as may exist in regard

thereto.

3.2 The Seller shall not be obliged to point out the survey beacons or

boundaries of the Property to the Purchaser.

4 PURCHASE PRICE

4.1 The purchase price payable by the Purchaser to the Seller in respect of

the Property shall be an amount of R 1 950 000.00 (One Million Nine Hundred and Fifty Thousand Rand) plus VAT, which amount will be

payable as follows:-



4.1.1 The Purchaser shall on the Signature Date pay a deposit in the

amount of R195 000.00 (One Hundred and Ninety Five Thousand Rand) to the Seller’s Conveyancers. The Seller’s

Conveyancers shall invest the deposit in trust in an interest

bearing account and interest to accrue to the benefit of the

Purchaser. In this regard it is placed on record that the Seller’s

Conveyancers will only be in a position to invest the deposit as

aforesaid upon receipt of a written and signed instruction to invest

trust moneys and the required information and documentation in

terms of the Financial Intelligence Centre Act, No. 38 of 2001; and

4.1.2 The balance purchase price against registration of transfer of the

Property in name of the Purchaser.

4.3. The Purchaser will provide to the Seller's Conveyancers an irrevocable,

to the Seller acceptable, bank guarantee/s securing the balance

purchase price contemplated in clause 4.1.2 above, which guarantee/s

will be delivered to the Seller's Conveyancers by no later than 14

(fourteen) days from being requested to do so. It is recorded that the

Seller can only validly request such guarantee/s after fulfilment of the

suspensive condition contained in clause 5.

5 SUSPENSIVE CONDITION

5.1 This Agreement is subject to the suspensive condition that the

Purchaser obtain approval, by no later than 30 (thirty) days from the

Signature Date, of a loan by a financial institution of R______________

(__________________________________________________ Rand), against registration of a first mortgage bond over the Property at such

interest rates and on such conditions as stipulated by the financial

institution(s) to which application for the loan is made. In this regard it is

specifically agreed that the aforementioned condition precedent shall be



fulfilled as soon as a financial institution has issued the Purchaser with

a pre-agreement statement form as provided for in the National Credit

Act, and it is specifically recorded that the fulfilment of the conditions is

not dependant on acceptance of the quote by the Purchaser.

5.2 If the suspensive condition contained in clause 5.1 is not fulfilled within

the time period contemplated above (“the Specified Date”), then this

Agreement shall not automatically lapse and be of no further force and

effect, but any Party may after the Specified Date in question, on written

notice (“the Notice”) to the other Party, require that the suspensive

condition in question be fulfilled within 30 (thirty) days after the date of

the Notice and, failing fulfilment of the suspensive condition in question,

within the aforesaid 30 (thirty) day period, then this Agreement shall

cease to be of any force and effect and no Party shall have any claim

against the other of them as a result of the failure of the suspensive

condition.

5.3 The suspensive condition contained in clause 5.1 has been inserted for

the benefit of the Purchaser and fulfilment thereof shall only be capable

of being waived by means of written notice to the Seller in this regard.

5.4 Unless the above suspensive condition has been fulfilled or waived by

the date stipulated as the due date for fulfilment in respect thereof, the

provisions of this Agreement will fall away and will be of no further force

or effect and the status quo ante will be restored as near as may be.

None of the Parties shall have any claim against the other in terms of

arising from the failure of the suspensive condition not being timeously

fulfilled.



6 POSSESSION AND RISK

6.1 Possession and occupation together with all benefits and risks, profits and losses in respect of the Property will be given to the Purchaser on the date of registration of transfer of the Property into the name of the Purchaser, from which date it will be at the sole risk, loss or profit of the Purchaser, and the Purchaser will from such date be liable for all rates, taxes and other charges in respect of the Property. If the Seller has paid any such rates, taxes or charges for any period subsequent to the date of possession, the Purchaser will refund to the Seller the charge or charges so paid in respect of any period subsequent to the date of registration of transfer.

6.2 The Seller does not furnish any explicit or tacit guarantees in regard to

the Property. The Purchaser acknowledges that he was not persuaded

into entering this Agreement by any representations made to him by the

Seller or any representative of the Seller, other than what is contained

in this Agreement.

6.3 The Seller shall be required to provide a detailed list of any defects and

damage to the Property, which the Purchaser shall be required to

inspect and agree by conducting an inspection of the Property and

signing such defects list prior to transfer of the Property.

6.4 If the Purchaser fails to attend to the inspection at the date and time

agreed upon, then the Property will be considered free from defects and

in good condition, fair wear and tear excepted, other than those

disclosed by the Seller.


________Initial here


6.5 The Purchaser should take note that in addition to the patent (visible)

defects in the Property, there may be latent (not visible) defects in the

Property.

6.6 The Property is offered for sale to the Purchaser in the specific

condition in which it stands.

6.7 In the event that the Consumer Protection Act 68 of 2008 does not

apply to the transaction between the Parties it is hereby recorded,

despite any other provision to the contrary, that clauses 6.3 to 6.6 will

not apply and that the Property is sold voetstoots to the Purchaser and

that the Purchaser shall have no claims of any nature against the Seller

for any defects in the Property.

7 TRANSFER AND COSTS

7.1 The Seller’s Conveyancers will attend to the registration of transfer.

7.2 Transfer of the Property will accordingly be given to the Purchaser as

soon as reasonably possible.

7.3 The Purchaser will -

7.3.1 on demand from the Seller’s Conveyancers, pay the transfer

fees as stipulated in the applicable tariff and other normal costs

incidental to registration of transfer, the costs of obtaining any

rates or other clearance certificate and the pro rata amount due

for rates and taxes plus attributable VAT on any of the aforesaid

amounts;

7.3.2 sign all documents required to be signed by the Seller's

Conveyancers in order that transfer may be effected.



8 WARRANTIES BY PARTIES

Each Party warrants that –

8.1 it has the legal capacity and has taken all necessary corporate action required to empower and authorise it to enter into and implement this Agreement on the terms and conditions herein set out;

8.2 this Agreement constitutes an agreement valid and binding on it and enforceable against it in accordance with its terms.

9 WARRANTIES IN RESPECT OF THE PROPERTY

9.1 The Seller will on the Signature Date be the sole registered and

beneficial owner of the Property.

9.2 On date of transfer the Property will be unencumbered.

9.3 The Seller warrants that there is no pending claim in respect of the

Property in terms of the provisions of the Restitution of Land Rights Act,

No. 22 of 1994, the Land Reform (Labour Tenants) Act, No. 3 of 1996

and the Extension of Security of Tenure Act, No. 62 of 1997 and that to

the best of its knowledge and belief, nobody has a lawful claim in

respect of the Property or for any use of the Property in terms of the

aforementioned Acts or any other legislation.

10 ESTATE AGENTS' COMMISSION

The Parties agree and acknowledge that Anthony Joseph Smook is the

effective cause of this Agreement being concluded and further that the Seller

shall accordingly pay agents’ commission to the said Anthony Joseph Smook





calculated at 5% (five percent) of the purchase price excluding VAT of the

Property.

11 BREACH

11.1 Should either Party commit a breach of this Agreement, the aggrieved

Party would be entitled to give the defaulting Party notice in writing

calling upon the defaulting Party to remedy the breach. Should the

defaulting Party fail to comply with such notice within 7 (seven) days of

receipt of such notice then, without prejudice to any other rights the

aggrieved Party may have in law, the aggrieved Party is entitled –

11.1.1 to cancel this Agreement and thereupon recover such damages

as the aggrieved Party suffers; or

11.1.2 to enforce performance in terms of this Agreement without

prejudice to any right the aggrieved Party may have to claim

damages from the defaulting Party.

11.2 Should either of the Parties take steps against the other pursuant to a

breach by such Party of this Agreement, such Party shall, in addition to

the rights aforementioned, be entitled to recover from the defaulting

Party payment of all its legal costs incurred on the scale between

attorney and own client, including tracing fees and collection

commission.

12 NOTICES ANDDOMICILIUM

12.1 The Parties choose as their respective domicilium citandi et executandi

for the purpose of serving legal proceedings and for the purposes of

giving or sending any notice provided for or necessary in terms of this

Agreement, the following addresses:-



Seller10 L’Ideal Close

Paarl

7646

E-mail: [email protected]

Marked for the attention of Ivan Smook

Purchaser _________________________________________________

_________________________________________________

_________________________________________________

_________________________________________________

E-mail: _______________________________________________

Marked for the attention of _______________________________

provided that a Party may from time to time change any address to any

other physical address, postal address or email address within the

Republic of South Africa by written notice to the other Party to that

effect. Such change of address will be effective 7 (seven) days after

receipt of notice of the change of domicilium.

12.2 All notices to be given in terms of this Agreement will be in writing

and –

12.2.1 if delivered by hand during normal business hours, be

rebuttably presumed to have been received on the date of

delivery;

12.2.2 if sent by prepaid registered post from within the Republic of

South Africa be rebuttably presumed to have been received

within 7 (seven) business days of posting;




12.2.3 if sent by e-mail before 16h30 on a Business Day is rebuttably

presumed to have been received on the date of successful

transmission of the e-mail. Any e-mail sent after 16h30 or on a

day, which is not a Business Day, will rebuttably be presumed

to have been received on the following Business Day.

12.3 Notwithstanding the above, any notice actually received by the Party to whom the notice is addressed will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with the provisions of this clause.

13 SEVERABILITY

Each provision of this Agreement is severable from the other provisions.

Should any provision be found by a Court of competent jurisdiction to be

invalid or unenforceable for any reason, the Parties will consult with one

another in good faith in order to agree, if possible, an alternative provision in

accordance with the intent and tenor of this Agreement. The remaining

provisions of this Agreement shall nevertheless remain binding and continue

with full force and effect.

14 GENERAL

14.1 This Agreement constitutes the whole of the agreement between the

Parties hereto relating to the matters dealt with in this Agreement and

save to the extent otherwise provided herein no undertaking,

representation, term or condition relating to the subject matter of this

Agreement not incorporated in this Agreement shall be binding on any

of the Parties.




14.2 No variation, addition, deletion, or agreed cancellation will be of any

force or effect unless in writing and signed by or on behalf of the Parties

hereto.

14.3 No waiver of any of the terms and conditions of this Agreement will be

binding or effectual for any purpose unless in writing and signed by or

on behalf of the Party giving the same. Any such waiver will be effective

only in the specific instance and for the purpose given. No failure or

delay on the part of any Party hereto in exercising any right, power or

privilege hereunder will constitute or be deemed to be a waiver thereof,

nor will any single or partial exercise of any right, power or privilege

preclude any other or further exercise thereof or the exercise of any

other right, power or privilege.

14.4 Save as otherwise herein provided, neither this Agreement nor any part, share or interest herein nor any rights or obligations hereunder may be ceded, assigned, or otherwise transferred without the prior written consent of the other Parties.

14.5 This Agreement may be executed in one or more 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. The Parties undertake to

take whatever steps which may be necessary to ensure that all

counterparts are duly signed by all of them without delay.

15 BENEFIT OF THE AGREEMENT

This Agreement will inure for the benefit of and be binding upon the

successors and permitted assigns of the Parties hereto or either of them.




16 PURCHASER’S COOLING-OFF RIGHT

16.1 In the event that this Agreement is subject to the Consumer Protection

Act 68 of 2008(“CPA”) and if the Agreement was concluded as a result

of direct marketing as defined in the CPA, then, in terms of section 16

read with section 32 of the CPA and Annexure C to the Regulations in

respect of the CPA, the Purchaser may rescind a transaction resulting

from any direct marketing without reason or penalty by notice to the

Seller in writing or another recorded manner and form, within 5 (five)

business days after the later of the date on which:-

16.1.1 the transaction or agreement was concluded; or

16.1.2 the goods that were the subject of the transaction was

delivered to the Purchaser.

16.2 Where the transaction is rescinded as in clause 16.1 the Seller shall

return any payment received from the Purchaser in terms of the

transaction within 15 (fifteen) business days after –

16.2.1 receiving notice of the rescission, if no goods have been

delivered to the Purchaser in terms of the transaction; or

16.2.2 receiving from the Purchaser any goods supplied in terms of

the transaction.

16.3 Any goods returnable in terms of the transaction rescinded in

accordance with clause 16.1 must be returned to the Seller at the

Purchaser’s risk and expense (which shall comprise all costs necessary

to restore possession of the goods to the Seller in the condition in which

the goods were when delivered to the Purchaser).



17 VALUE ADDED TAX

17.1 The Seller warrants that it is and will at the relevant time be:-

17.1.1 a vendor as that term is defined in section 1 of the Value

Added Tax Act (the “Act”); and

17.1.2 registered as such in terms of section 23 of the Act.

17.2 The Purchaser warrants that it is and/or at the relevant time will be:-

17.2.1 a vendor as that term is defined in section 1 of the Act; and

17.2.2 registered as such in terms of section 23 of the Act.

17.3 The Parties record and agree that they are of the opinion that:-

17.3.1 the subject matter of this Agreement constitutes an

enterprise as defined in section 1 of the Act;

17.3.2 the supplier of the enterprise as contemplated herein is that

of a going concern and will be operated for a period of at

least 6 (six) months after transfer as such and shall

accordingly be chargeable with VAT at the rate of 0% (zero

percent) in terms of section 11(1)(e) of the Act;

17.3.3 the sale will be subject to a zero rate as provided for in

section 11(1)(e) of the Act and it being the intention of the

Parties to, at time of transfer, deliver an income generating

concern which concern contains such assets necessary to

continue the income generating business after date of

transfer.



17.4 In the event of the Receiver of Revenue determining for any reason that

this transaction does not qualify for zero rating in terms of section 11(1)

(e) of the Act, then the purchase price set out in clause 4.1 above shall

be increased to cover the VAT payable, which amount shall be paid by

the Purchaser to the Seller on demand.

SIGNED at on this the day of 2012 in

the presence of the undersigned witnesses.

1.

2. ______________________ _________________________

For and on behalf of the Seller

SIGNED at on this the day of 2012 in

the presence of the undersigned witnesses.

1.

2. ______________________ __________________________

For and on behalf of the Purchaser


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