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18 September 2007

This is the return date of a Rule nisi granted for specific performance arising from and in terms of a Deed of Sale entered into between the parties, dated 7 February 2005 and for ancillary relief. The final order is opposed by the respondent who is the seller in terms of the Deed of Sale. The respondent opposed the application on the basis that the Deed of Sale has lapsed by virtue of the fact that the suspensive condition contained in clause 12.1 thereof has not been fulfilled or is incapable of fulfilment.

The applicants, on the other hand, deny the allegations of the respondent and contend that the suspensive condition has been complied with, in that the necessary approvals for subdivision have been obtained. Clause 12.1 of the Deed of Sale referring to the suspensive condition, reads as follows: "This offer to purchase is subject to the successful subdivision of Erf 1999 Swellendam by the relevant authorities provided that it will not be subject to any access servitude or right of way in favour of Portion A as indicated on the attached diagram."

The effect of the suspensive condition is that the property had to be subdivided in such a manner as to avoid the remainder of the property being subject to an access servitude or right of way in favour of Portion A.

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