THE PROCUREMENT OF SUITABLE NATIONAL OFFICE
ACCOMMODATION FOR THE ELECTORAL COMMISSION

VOLUME 2 OF 3:
OFFER TO PURCHASE AGREEMENT

Page 2 of 35

OFFER TO PURCHASE
in respect of the Sale of Property

between

________________________________________

“the Seller”

and

ELECTORAL COMMISSION (“EC”)

“the Purchaser”

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TABLE OF CONTENTS
NO. CLAUSE HEADING

PAGE

1.

THE PARTIES ............................................................................................................... 5

2.

INTRODUCTION ............................................................................................................ 5

3.

INTERPRETATION ........................................................................................................ 5

4.

DEFINITIONS ................................................................................................................ 7

5.

SUSPENSIVE CONDITIONS ......................................................................................... 9

6.

SALE ........................................................................................................................... 10

7.

PURCHASE PRICE AND PAYMENT .......................................................................... 11

8.

PLACE OF PAYMENT ................................................................................................. 12

9.

RISK ............................................................................................................................ 13

10

LIABILITIES................................................................................................................. 13

11

COSTS......................................................................................................................... 13

12

TRANSFER.................................................................................................................. 14

13

ADJUSTMENT ACCOUNT .......................................................................................... 15

14

WARRANTIES ............................................................................................................. 17

15

NOTICE OF SALE ....................................................................................................... 19

16

BREACH ...................................................................................................................... 20

17

FIT OUT AGREEMENT, PROGRAMME AND PENALTIES ........................................ 20

18

NOTICES ..................................................................................................................... 21

19

INDULGENCES ........................................................................................................... 22

20

VARIATION AND CANCELLATION ............................................................................ 22

22

ENTIRE AGREEMENT ................................................................................................ 24

23

JURISDICTION ............................................................................................................ 24

24

CESSION AND DELEGATION .................................................................................... 24
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ANNEXURE “A”................................................................................................................... …..26
DESCRIPTION OF THE PROPERTY AND AUTHORISED PERSONS…………………………26
ANNEXURE B ........................................................................................................................... 28
VOLUME 3 TECHNICAL OUTPUT SPECIFICATIONS…………………………………………...28
ANNEXURE “C1”...................................................................................................................... 29
ANNEXURE C1. PURCHASE PRICE........................................................................................ 29
ANNEXURE “C2”...................................................................................................................... 30
PAYMENT SCHEDULE LINKED TO PROJECT FIT OUT DELIVERABLES AND MILESTONES
………………………………………………………………………………………………….30
ANNEXURE “D”........................................................................................................................ 31
FIT OUT AGREEMENT……………………………………………………………………………….31
ANNEXURE “J”………………………………………………………………………………………...32
(ANNEXURE REFERENCE FROM VOLUME 1)…………………………………………………..32
DRAFT SPACE PLANNING LAYOUTS FROM TABLE 1 OF VOLUME 3………………………32
ANNEXURE “Q” ....................................................................................................................... 33
(ANNEXURE REFERENCE FROM VOLUME 1)…………………………………………………..33
FIT OUT SCOPE OF WORKS……………………………………………………………………….33
ANNEXURE “R”........................................................................................................................ 34
(ANNEXURE REFERENCE FROM VOLUME 1)…………………………………………………..34
FIT OUT PROGRAMME………………………………………………………………………………34
ANNEXURE “S” ........................................................................................................................ 35
(ANNEXURE REFERENCE FROM VOLUME 1)…………………………………………………..35
MOVE PROGRAMME…………………………………………………………………………………35

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1.

THE PARTIES

1.1.

The parties to this agreement are:

1.1.1.

the Purchaser;

1.1.2.

the Seller.

2.

INTRODUCTION

2.1.

The Seller is the owner of the property.

2.2.

The Purchaser wishes to acquire the property, upon the terms and conditions herein set
out.

2.3.

The Seller wishes to sell the property, upon the terms and conditions herein set out.

3.

INTERPRETATION

3.1.

Headings in this agreement are for reference purposes and accordingly do not form part
of this agreement and shall not be used for interpreting or construing any word, sentence,
sub-clause or clause of this agreement.

3.2.

Any provision contained in any definition or recorded in or annexure to this agreement,
which confers rights or imposes obligations on any party, shall be deemed to be a
substantive provision of this agreement even if no reference is made to such provision
in the body of this agreement and effect shall be given to such provision as if it were a
substantive clause in the body of this agreement.

3.3.

Unless the context clearly indicates a contrary intention, an expression which denotes:

3.3.1.

any gender includes the other genders;

3.3.2.

a natural person includes a juristic person (and vice versa); and

3.3.3.

the singular includes the plural (and vice versa).
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3.4.

Words and expressions which are defined in any sub-clause shall, for the purposes of
the clause of which that sub-clause forms part, bear the meaning assigned to such words
and expressions in that sub-clause.

3.5.

This agreement shall be governed by and construed and interpreted in accordance with
the laws of the Republic of South Africa.

3.6.

Where the day on or by which anything is to be done is not a business day, it shall be
done on or by the first business day thereafter.

3.7.

If any period is referred to in this agreement by way of reference to a number of days,
the days shall be reckoned exclusively of the first and inclusively of the last day, unless
the last day falls on a Saturday, Sunday or public holidays, in which case the last day
shall be the next succeeding day which is not a Saturday, Sunday or public holiday,
excepting that the foregoing shall not apply to the calculation of interest.

3.8.

Annexures to this agreement shall be deemed to have been incorporated herein and
shall form an integral part hereof.

3.9.

A reference to:

3.9.1.

a party in a document shall include that party’s successors and permitted assigns;

3.9.2.

an enactment is to that enactment as at the date of signature of this agreement and as
amended or re-enacted from time to time;

3.9.3.

a document includes an amendment or supplement to, or replacement or novation of
that document.

3.10.

Where figures are referred to in numerals and words and there is any conflict between
the two, the words shall prevail.

3.11.

Where value added tax is payable in respect of any transaction recorded in this
agreement and the agreement is silent on the matter, then the purchase consideration
reflected in this agreement shall be exclusive of such value added tax.

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4.

DEFINITIONS

4.1.

In this Agreement, unless the context clearly otherwise requires:

4.1.1.

“Adjustment Account”

Means the account that will be used to reconcile
any outstanding financial obligations related to
the property between the Purchaser and the
Seller. This account will ensure that all costs i.e.
property taxes, utility bills, and other expenses,
are divided and settled at the time of the transfer;

4.1.2.

“Agreement”

means this agreement read together with all
annexures hereto;

4.1.3.

“Certifier/s”

A group of suitably qualified individuals, or a
Multidisciplinary Consulting Engineering Firm or
a combination of both who will review the fit out
work completed against the Payment Schedule
and make recommendations to the Purchaser’s
Technical Advisors regarding payments to be
made by the Purchaser

4.1.4.

“Companies Act”

means the Companies Act, 2008, as amended;

4.1.5.

“Conditions”

means the suspensive conditions set out in
clause 5.1;

4.1.6.

“Conveyancer”

means the company/ person mandated by the
Electoral Commission to carry out the legal
process whereby the Electoral Commission in
the legal format designated (a person, company,
close

corporation

or

trust)

becomes

the

registered and legal owner of immovable
property, including improved and unimproved
land, houses, farms, flats and sectional titles, as
well as the registration of bonds and other rights

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Page 8 of 35

to

fixed

properties,

including

servitudes, usufructs and the like
4.1.7.

“Effective Date”

means the date of registration of transfer of the
property in the name of the Purchaser;

4.1.8.

“Effective Date Liabilities”

means all liabilities of the Seller in respect of the
enterprise as at the effective date;

4.1.9.

“Fit Out Agreement”

means the agreement together with the plan,
programme and payment schedule to be set out
in the annexures marked “J”, “Q”, “R”; and “C2”

4.1.10.

Is the period of time from the date of transfer of

“Fit out period and programme”

the Building to the Electoral Commission as
contained in the fit-out programme Annexure R
(Annexure Reference from Volume 1).
4.1.11.

“Move Management & Programme”

Is the period of time from the date of completion
of the fit out for the move of the Electoral
Commission into the Building as contained in the
move programme Annexure

S

(Annexure

Reference from Volume 1).
4.1.12.

“Long Stop Date”

means three months after the occupancy date to
be negotiated and agreed as per the project plan
attached as Appendix R (Project Programme for
fit out), from the date of transfer of the Building
to the Electoral Commission.

4.1.13.

“Property”

means the property with the name and details as
stated on Annexure “A” hereto which the Seller
wishes to sell.

4.1.14.

“Insolvency Act”

means the Insolvency Act, 1936, as amended;

4.1.15.

“Parties”

means the Seller and the Purchaser;

4.1.16.

“Purchaser”

means the Electoral Commission as established
by Section 3 of the Electoral Commission Act,
Act 51 of 1996; and governed by the Public

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Page 9 of 35

Finance Management, Act 1 of 1999 as
amended;
4.1.17.

“Purchase Price”

means the purchase price as recorded in clause
7;

4.1.18.

“Seller”

Means _______________________________,
Registration Number ____________________;

4.1.19.

“Signing Date”:

means the date of signature of this agreement by
the party signing last in time;

4.1.20.

“VAT”

means value-added tax as provided for in the
VAT Act;

4.1.21.

Land Reform (Labour Tenants) Act

means Land Reform (Labour Tenants) Act 3 of
1996 as amended

4.1.22.

Restitution of Land Rights Act

means Restitution of Land Rights Act 22 of 1994
as amended

4.1.23.

“VAT Act”

means the Value-Added Tax Act, 1991, as
amended.

4.1.24.

Extension

of

Security

of

Tenure Act
4.1.25.

1997 as amended

Interim Protection of Informal Land Interim Protection of Informal Land Rights Act 31
Rights Act

4.1.26.

Land Extension of Security of Land Tenure Act 2 of

of 1996 as amended

Upgrading of Land Tenure Rights Upgrading of Land Tenure Rights Act 6 of 2021
Act

4.1.27.

National Monuments Act

National Monuments Act 28 of 1969

5.

SUSPENSIVE CONDITIONS

5.1.

The sale of the Property shall be subject to the fulfilment of the following suspensive
conditions within 30 (thirty) days of the Signing Date:

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5.1.1.

the conclusion by the Purchaser to its reasonable satisfaction of a due diligence
investigation into Property, the scope of which investigation shall otherwise be in the sole
discretion of the Purchaser;

5.1.2.

the Seller to provide the Purchaser the final approved space planning layouts as agreed
to be attached to the Fit-Out agreement as “Annexure B”;

5.1.3.

the Seller is also to provide the Purchaser with a Performance Guarantee to the value of
10% of the fit-out costs to cover the undertaking as per 5.1.2 above;

5.1.4.

where applicable, the Shareholders of the Seller’s Company passing a resolution in
terms of Section 112/115 of the Companies Act 71/2008 (as amended), agreeing to the
terms and conditions of this agreement, ratifying and authorising the sale contemplated
herein;

5.1.5.

where applicable, the Purchaser’s (through the Accounting Officer) approval
documentation (resolution) agreeing to the terms and conditions of this agreement,
ratifying and authorising the purchase contemplated herein; and

5.1.6.

the due delivery of the duly passed resolutions referred to above.

5.2.

The conditions are stipulated for the benefit of both parties and may therefore only be
waived by the parties at any time prior to the date fixed for the fulfilment of the conditions
by written agreement.

5.3.

The parties shall, to the extent that it is within their power to do so, use their best
endeavours to procure fulfilment of the conditions.

5.4.

The Seller shall make available to the Purchaser and its authorised representatives all
books, records, documents and information pertaining to the property as they may
reasonably require for the purposes of conducting the due diligence investigation.

6.

SALE

6.1.

The Seller hereby sells to the Purchaser the Property, who purchases the Property, with
effect from the Effective Date.
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6.2.

It is specifically recorded that:

6.2.1.

the Seller must comply with the VAT Act;

6.2.2.

accordingly, VAT will be levied on the sale of the property in terms of the VAT Act.

6.3.

The Property is sold free of any liabilities and debts whatsoever relating to and arising
from the Property and which arose before the Effective Date (“Effective Date Liabilities”),
and the Seller to that end shall be liable for the Effective Date Liabilities as and when
they fall due and hereby indemnifies the Purchaser in respect of the effective date
liabilities.

6.4.

The acquisition of the Property shall be subject to:

6.4.1.

all the conditions, encumbrances, restrictions and servitudes contained in the title deeds
of the Property;

6.4.2.

any other conditions, encumbrances and restrictions disclosed by the Seller to the
Purchaser in terms of the provisions of this Agreement.

7.

PURCHASE PRICE AND PAYMENT

7.1.

The Purchase Price of the Property shall be the sum of R __(see note
below)_________________ (______see note below)_____________________). The
Purchase Price1 is inclusive of VAT2. In the event that the South African Revenue
Services (SARS) rules that VAT is payable at a higher rate than the zero rate as defined
in cl 6.2.2, the Purchaser shall be liable to pay VAT (calculated at such higher rate) in
addition to the Purchase Price. In that event the Seller will furnish the Purchaser with an
appropriate VAT invoice in accordance with the provisions of the VAT Act and the
Purchaser shall pay such VAT upon presentation thereof.

1

Price to be completed only in the Envelope 2 financial proposal. No amounts/figures/numbers to be inserted
here at bid submission
2 Applicable if the seller is registered for VAT

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7.2.

The Purchase Price will be payable as follows:

7.2.1

a ten percent (10%) deposit in the amount of R (see note below)________ (_See
note below _)) 3of the purchase price of the property only, is payable on date of
signature of the Agreement, which deposit is to be paid to the Conveyancer’s
Trust Account, to be invested in an interest bearing account, and which interest
is to accrue to the benefit of the Purchaser, subject to the Purchaser signing an
Authority to Invest and by providing the required FICA documentation; The deposit
will be claimed by the Purchaser upon default or irregularity by the Seller. The balance

of the purchase price shall be paid as per the requirements of the transfer process
against registration of transfer of the Property into the name of the Purchaser.
7.3.

The Fit-out Price, including Move Programme for the Property shall be the sum of R
________________(see

note

below)___

(_____________(see

note

below)________________). The Fit-out Price4 is inclusive of VAT5. The Fit-out Price
shall be paid in monthly payments during the fit out contract period based on certified
deliverables based on progress against the details in the Project Programme (Annexure
R) and as detailed in the Payment Schedule (Annexure C2) as certified by the Certifier/s.

8.

PLACE OF PAYMENT
All payments due by either party under this agreement shall be made at such bank
account in the Republic of South Africa as the Parties may specify.

3Price

to be completed only in the Envelope 2 financial proposal. No amounts/figures/numbers to be inserted
here at bid submission
4 Price to be completed only in the Envelope 2 financial proposal. No amounts/figures/numbers to be inserted
here at bid submission
5 Applicable if the seller is registered for VAT
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9.

RISK

9.1.

As from the Effective Date, all the risks and benefits of ownership of the Property, shall
pass to the Purchaser.

9.3

On the Effective Date the Purchaser shall automatically and irrevocably be deemed to
have obtained:

9.3.1

cession, assignment and transfer of the Seller’s rights and claims in relation to or in
connection with the Property against any local and/or other competent authority or party;

9.3.2

the Seller shall deliver to the Purchaser:

9.3.2.1

all keys and other movable property relating to the Property in the possession or under
the control of the Seller;

10

LIABILITIES

10.1

The Seller shall procure that the Effective Date liabilities, which are not expressly taken
over by the Purchaser, are discharged by the Seller in full, timeously, and without any
recourse to the Purchaser.

10.2

Accordingly, without any prejudice to any of the rights of the Purchaser arising from any
of the provisions of this agreement, the Seller hereby indemnifies the Purchaser against
all loss, liability, damage or expense arising from the Effective Date liabilities not
assumed by the Purchaser and/or from any failure to discharge any of them timeously
or at all.

11

COSTS

11.1

The Purchaser shall be liable for and shall on receipt of their account pay to the
conveyancer:

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11.1.1

the legal costs of and incidental to the transfer of the property to the Purchaser;

11.1.2

VAT, if applicable in terms of clause 7.1, against delivery of an appropriate VAT invoice;

11.1.3

the Purchasers contribution, as determined by the Conveyancer in terms of clause 12.2,
to the amount required to obtain a rates clearance.

11.2

Save as set out in clause 11.1, each party shall bear its own costs of and incidental to
the preparation and signature of this agreement and settling its terms and conditions.

12

TRANSFER

12.1

Transfer of the Property to the Purchaser shall be given to the Purchaser within the
timelines determined by the Deeds Office guidelines and processes after the Purchase
Price and the rates and costs payable by the Seller have been secured or paid, as the
case may be, and the Seller has otherwise complied with its obligations then due in terms
of this Agreement.

12.2

Each of the Parties shall make such contributions as the Conveyancers may specify to
the costs and charges necessary for purposes of the registration of transfer. To the
extent that each Party pays any amount in excess of the amount for which it is liable,
such payment shall be dealt with in the adjustment account referred to in clause 13.4.

12.3

Transfer shall be effected by the Conveyancer.

12.4

Each party shall, within 7 (seven) days of being called upon to do so by the
Conveyancer, sign all documents required to be signed, and furnish all documents
required to be furnished by that Party, to enable transfer of the Property to be given to
the Purchaser.

12.5

The Seller shall at its own expense, on demand, prior to the Effective Date:

12.5.1

deliver to the Purchaser a valid Certificate of Compliance in respect of the electrical
installation on the Property, which certificate shall be issued by an accredited person, as
required in terms of the Electrical Installation Regulations 1992 (as amended)
promulgated in terms of the Occupational Health and Safety Act, 1993, as amended;
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12.5.2

cause to be done whatever may be necessary in order to ensure timeous compliance
with clause 12.5.1 above, including, without limiting the generality of the a foregoing, the
carrying out of such inspection as may be necessary and, where applicable, the
implementation of such Fit Out, repairs and/or improvements to such electrical
installation as may be necessary to enable such accredited person to issue such
certificate of compliance.

12.5.3

The Seller hereby undertakes at his/her/its own costs to furnish to the Conveyancer, prior
to the transfer:

12.5.3.1

Certificate of Electrical Compliance from an accredited electrical contractor in terms of
the regulations of the Occupational Health and Safety Act No. 85 of 1993, as amended.

12.5.3.2

Certificate issued by a registered gas installer to the effect that all the gas installations
on the Property complies with the industry standard (if applicable).

12.5.3.3

An electric fence compliance certificate in terms of Regulation 12 of the Electrical
Machinery Regulations issued in terms of the Occupational Health and Safety Act, Act
85 of 1993 (if applicable).

12.5.4

The Seller warrants that no additions or alternations will be made to any of the electrical
or gas installations on the Property after the issue of the relevant Certificates and prior
to occupation by the Purchaser, or transfer, whichever is earlier.

12.5.5

Should the Seller fail to furnish the Purchaser with the required Certificates timeously,
the Purchaser shall be entitled to obtain the same and the Seller, by appending his/her/its
signature hereto, authorises the Conveyancer to reimburse the Purchaser by deducting
the costs thereof from the proceeds of the sale.

13

ADJUSTMENT ACCOUNT

13.1

Payment of any monies due to any party in terms of the adjustment account shall not
constitute part of the Purchase Price and shall be effected separately from the payment
of the Purchase Price.

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13.2

After the Effective Date, the Conveyancer shall forthwith deliver to the Parties copies of
every document used in respect of the preparation of the adjustment account.

13.3

The adjustment account shall be prepared as a comprehensive adjustment account
between the parties, in accordance with generally accepted accounting practice. In
particular, but without derogating in any way from the generality with regard to the
matters which require to be adjusted between the parties arising from this agreement,
such adjustment account shall inter alia reflect as:

13.3.1

credits to the Seller:

13.3.1.1

that proportion of any amount paid by the Seller in respect of the Property or before the
Effective Date for any period after that date in respect of:

13.3.1.1.1 any municipal charges, including assessment rates and/or other taxes, levies, charges
or imposts of any local, regional, provincial, national or other competent authority, and
charges in respect of sewerage and sanitation, effluent disposal and refuse removal;
13.3.1.1.2 charges for electricity, gas (where applicable) and water;
13.3.1.1.3 interest.
13.3.2

any credits due to the Purchaser.

13.4

If either Party is not satisfied with the reasonableness of any amount, or the basis of or
accuracy of the calculation of the adjustment account or the figures used in its
calculation, the Parties shall endeavour to resolve such dispute in line with Clause 21
(Dispute Resolution) of this Agreement.

13.5

If in terms of the adjustment account any amount is payable by any Party (hereinafter
referred to as “the paying party”) to another Party (hereinafter referred to as “the payee”),
the paying party shall, subject to the provisions of clause 13.4 above, effect payment of
that amount to the payee within 7 (seven) days of the date on which the adjustment
account is delivered or finally adjusted, as the case may be. Any amount so payable
shall be deemed to have borne interest at the publicly quoted overdraft rate from time to

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time of Standard Bank of South Africa Limited from the Effective Date until the date of
payment.
14

WARRANTIES

14.1

The Seller warrants to the Purchaser that as at the signing date and as at the effective
date:

14.1.1

the property is not subject to any options or rights of pre-emption;

14.1.2

the property is not subject to any servitude or other real rights not reflected in the title
deed thereof as at the signing date;

14.1.3

all information provided by the Seller in respect of the property to the Purchaser is true
and correct in all material respects;

14.1.4

the property is not the subject of any expropriation or rezoning proceedings whatsoever,
nor is the Seller aware of any steps which may give rise to any such proceedings;

14.1.5

the property is zoned appropriately for the present use thereof and all improvements to
the property have been erected in full compliance with the provisions of the relevant
Town Planning Scheme;

14.1.6

the improvements in, on and to the property:

14.1.6.1

comply in all material respects with the requirements of the local or any other relevant
authorities and no changes or alterations requiring the approval of the relevant
authorities have been effected to the property without such approval being first had and
obtained in writing nor is the Seller under any obligation to any such authority to make
any alteration, addition or repair to the property;

14.1.6.2

do not encroach any other property;

14.1.6.3

comply with all relevant legislation;

14.1.6.4

have been constructed in accordance with duly approved plans;

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14.1.7

the Property will have no employees whatsoever and there are no outstanding liabilities
arising out of employment issues due to any previous employee of the Property;

14.1.8

any employees of any managing or other agent of the Seller are employed by such
managing or other agent as principal and not as agent for the Seller;

14.1.9

the Seller has not granted any real right in respect of the property other than of which
the Purchaser is aware;

14.1.10

the Property is not the subject of any legal proceedings and, in particular, any
attachment, foreclosure or sale in execution proceeding;

14.1.11

the Property is not subject to any claim under any of the following legislation:

14.1.11.1 the Restitution of Land Rights Act;
14.1.11.2 the Land Reform (Labour Tenants) Act;
14.1.11.3 the Extension of Security of Land Tenure Act;
14.1.11.4 the Interim Protection of Informal Land Rights Act;
14.1.11.5 the Upgrading of Land Tenure Rights Act;
14.1.11.6 the National Monuments Act;
14.1.12

all information, whether documentary or oral, disclosed to the Purchaser in terms of the
due diligence investigation is true and correct.

14.2

The Seller warrants that its signatory to this Agreement has the necessary authority to
so bind it to this agreement.

14.3

Without prejudice to any rights of the Purchaser in terms of this agreement, the Seller
indemnifies the Purchaser against any loss, liability, damage or expense which the
Purchaser may sustain as a result of a breach of any warranty contained in this
agreement.

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Page 19 of 35

14.4

It is agreed that:

14.4.1

insofar as any of the warranties is promissory or relates to a future event, it shall be
deemed to be given as at the due date for the fulfilment of the promise or the happening
of the event, as the case may be;

14.4.2

each warranty is a separate warranty and is not restricted by reference to or inference
from any other warranty.

14.5

The Seller further warrants to the Purchaser that if, between the signing date and the
Effective Date, there is any material adverse change to the property, it shall advise the
Purchaser thereof in writing. In such event the Purchaser shall be entitled to terminate
this agreement.

15

NOTICE OF SALE

15.1

The Seller confirms hereby that it is an Investment Company and not a Trader as
contemplated in Section 34 of the Insolvency Act, 1936, as amended (“the Insolvency
Act”) and the parties hereto agree that notice of this transaction will not be required to be
published as contemplated in Section 34 of the Insolvency Act.

15.2

The Seller indemnifies the Purchaser against any loss or damage which the Purchaser
may suffer as a result of notice of this transaction not being published in terms of the
Insolvency Act.

15.3

The Purchaser shall have no duty to resist any proceedings to attach or to take
possession of any of the sale assets by any persons against whom this transaction is
void in terms of the Insolvency Act as a consequence of notice of this transaction not
being published as aforesaid; provided that the Purchaser shall be obliged to give written
notice to the Seller as soon as it becomes aware of any such proceedings.

15.4

If the Purchaser gives notice to the Seller in terms of clause 15.3, and the Seller fails
within 30 (thirty) days of receipt by it of such notice to procure that the Property
concerned are released from attachment or are returned to the Purchaser, as the case
may be, then without prejudice to such other rights as the Purchaser may have against

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Page 20 of 35

the Seller, the Purchaser shall be entitled by written notice to the Seller to cancel this
Agreement. In that event this Agreement will be deemed to have been cancelled as a
consequence of a material breach thereof by the Seller.
16

BREACH
In the event of either Party failing to comply with the conditions of this Agreement
promptly and on due date and remaining in default for a period of 14 (fourteen) days after
receipt by it of a written notice calling upon it to remedy its breach, the Party suffering
under the breach shall have the right or option either:

16.1

to demand specific performance of this agreement and to take such action as may be
necessary in order to implement and fulfil its rights in terms hereof and to recover any
damage which it may suffer as a result of the defaulting Party’s breach of contract;

16.2

forthwith to cancel this agreement and claim such damages as the Party suffering the
default may have suffered as a result of the other Party’s breach of contract;

16.3

the Parties hereto acknowledge and agree that the Conveyancer will be entitled to
charge wasted costs in the event of cancellation of breach of the agreement by either
party at the rate as prescribed by the Legal Practice Council. The Parties irrevocably
agree that the wasted costs may be paid from any deposit, and hereby indemnifies the
Conveyancer against any claims for damages or otherwise, that may be instituted by any
party for reason of deducting such wasted costs in accordance with this clause.

17

FIT OUT AGREEMENT, PROGRAMME AND PENALTIES

17.1

The Seller will provide a fit out over a period of 6 months.

17.2

The Seller has engaged its own project management and professional team and
contractors to complete the works.

17.3

The Seller has also engaged a moving company to provide the move management.

17.4

The Seller has provided a Fit-out Agreement providing the contractual

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Page 21 of 35

requirements to carry out the Scope of Works as defined in Volume 3 which is as
contained in Annexure B and pricing as per the Annexure C1. Annexure D, J, Q, R and
S determine the Draft Space Planning Layouts, Fit-out Agreement, Response to the
Scope of Works, Project Programme and Move Management as provided by the Seller
and are attached to this agreement. The Fit-out Price for the above as contained in the
Payment Milestone Schedule Annexure C2, will be paid by the Purchaser, monthly upon
certification by the Certifier/s within 30 days after approval of the invoice.
17.5

Should the refurbishment, fit out and occupation of the building by Electoral
Commission not have happened within this timeframe the Seller has provided, the Seller
will be liable for a penalty equal to the rental being paid by the Electoral Commission for
its current National Office until such time as the fit out is completed.

18

NOTICES

18.1

The parties hereby respectively choose domicilium citandi et executandi at their
respective physical addresses as set out below, at which addresses all notices,
correspondence and legal processes in relation to this agreement or any action arising
there from may be effectually delivered or served:

18.1.1

Purchaser

18.1.1.1

physical street address:
Electoral House, Riverside Office Park, 1303 Heuwel Avenue, Centurion, 0157n
________________________________________________________________
facsimile number:
________________________________________________________________

18.1.1.2

telephone number: 012 622 5700
_______________________________________________________________

18.1.2

Seller
As per Annexure “A”
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18.2

Any notice given by one of the parties to the other (“the addressee”) which:

18.2.1

is delivered by hand, shall be presumed to have been received by the addressee, unless
the contrary is proved, at the time of delivery or at the time of despatch by hand delivery
as the case may be;

18.2.2

is transmitted by electronic mail to the addressee during the normal business hours of
the addressee at its specified electronic mail address shall be rebuttably presumed to
have been received by the addressee on the date of transmission as reflected on the
sender’s electronic mail records;

18.2.3

is sent by courier services to the addressee at its specified address shall be rebuttably
presumed to have been received by the addressee on the 7th (seventh) day after the
date of posting

18.3

Either party shall be entitled on written notice served by registered post to the other, to
change its address as set out above, provided that such address is a physical street
address.

19

INDULGENCES

19.1

No indulgence which either party (“the grantor”) may grant to the other (“the grantee”)
shall constitute a waiver of any of the rights of the grantor, who shall not thereby be
precluded from exercising any rights against the grantee which may have arisen in the
past or which may arise in the future.

19.2

Any indulgence must be reduced to writing.

20

VARIATION AND CANCELLATION

20.1

It is recorded that there exists no collateral and/or other agreements with regard to the
matters dealt with herein, and that this is the sole agreement entered into by and between
the parties.

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20.2

No agreement, implicitly or by conduct or otherwise, between the Purchaser and the
Seller to:

20.2.1

cancel, alter, add to or delete from this Agreement;

20.2.2

waive any right to enforce any term of this Agreement, shall be binding upon the Parties
to this Agreement or be of any force or effect unless reduced to writing and signed by all
the parties hereto or on their behalf by their respective duly authorised agents.

21

DISPUTE RESOLUTION

21.1

In the event of any dispute between the Parties arising from this Agreement, the Party
wishing to declare the dispute shall deliver to the other Party a written notice, which sets
out:
(a) a brief description of the nature of the Dispute, including the amount involved, if any,
and the date on which the Dispute arose; and
(b) the relief sought

21.1.1

The dispute shall be resolved within fourteen (14) days as determined by the nature of
the dispute. The Parties shall attempt to settle such dispute by negotiation conducted in
good faith among those representatives of each Party with the appropriate decisionmaking authority or expertise.

21.1.2

If such individuals are unable to reach agreement, the Dispute shall be referred to
arbitration by a single arbitrator to be nominated by the Registrar of the Arbitration
Foundation of Southern Africa (AFSA).

21.1.3

In all respects the arbitration shall be conducted in accordance with the rules,
requirements and procedures determined by AFSA.

21.1.4

The Parties record that a non-refundable administration fee is payable on demand by
AFSA, which fee shall be paid equally by the Parties.

21.1.5

Any award, including an award for costs, made by the arbitrator shall be final and binding
upon the Parties and shall be carried into effect by them and made an order of any
competent court.

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21.1.6

The procedures in this Clause shall not prevent either Party from obtaining appropriate
relief on an urgent basis from a competent court pending the decision of the arbitrator.

22

ENTIRE AGREEMENT
The Parties hereby acknowledge that this Agreement records the entire agreement
between them and that there are no conditions, express or implied or warranties, save
and except those herein contained, binding on the Parties, unless set out in a written
document signed by both Parties.

23

JURISDICTION
The Parties hereby consent to the jurisdiction of the Magistrates’ Court for any action
instituted by any party to this Agreement, arising from this agreement, but
notwithstanding such consent, either Party may at its option, proceed in the High Court.

24

CESSION AND DELEGATION
The Purchaser shall, at all times, be entitled to cede its rights and delegate its obligations
in terms of this Agreement to any third party, provided that it shall have first procured the
approval of the Seller, which approval shall not unreasonably be withheld or delayed.

24

SIGNATURES IN COUNTERPARTS
This agreement may be signed in separate counterparts in whichever electronic form,
each of which shall be deemed to be an original and all of which, taken together, shall
constitute one and the same document and be regarded as an original.

Signed by the Seller at

on

202_

Witness 1: ______________________

_________________________________

Witness 2: ______________________

The Seller herein represented by

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Witness 3: ______________________

___________________ being duly
authorised hereto.

Signed by the Purchaser at

on

202_

Witness 1: ______________________

_________________________________

Witness 2: ______________________

The Electoral Commission herein

Witness 3: ______________________

represented by ___________________
being duly authorised hereto.

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ANNEXURE “A”
DESCRIPTION OF THE PROPERTY AND AUTHORISED PERSONS
Description of property

DESCRIPTION OF THE

DETAILS AND DOCUMENTS

PROPERTY
ATTACH ANNEXURES
A: 1 TO A: ……6 WITH
RELEVANT
DOCUMENTATION

ERF NO/S

PROPERTY SIZE
BUILDING SIZE M2
NO OF PARKING BAYS

TOWN PLANNING AND
ZONING RIGHTS

6

Items to be included to be listed, included and completed by the Seller
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RATES AND UTILITY
CHARGES (LAST
THREE MONTHS)

BUILDING CONDITION

MAINTENANCE PLAN
(IF APPLICABLE)7

SELLER’S DOMICILIUM
Physical address:
Postal address:
Facsimile number:
Telephone number:
Email address
Authorised Person Details

7

Add any items where the Seller will upgrade as per the requirements of the Tender
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ANNEXURE B
VOLUME 2 TECHNICAL OUTPUT SPECIFICATIONS

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ANNEXURE “C1”

ANNEXURE C1. PURCHASE PRICE8

Note: The purchase price is only to be submitted as per the Annexure Y proforma in the
separate sealed financial proposal and no price is to be included here at bid submission

8

To be included from Financial Proposal (Not to be included here at bid submission stage
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ANNEXURE “C2”
PAYMENT SCHEDULE LINKED TO PROJECT FIT OUT DELIVERABLES AND MILESTONES9
Note: The payment schedule is only to be submitted as per the Annexure Y proforma in the
separate sealed financial proposal and no payment schedule is to be included here at bid
submission

9 9

To be included from Financial Proposal in Section 17 of Volume 1
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ANNEXURE “D”
FIT OUT AGREEMENT10

10

Write up of Project Team structure, fit out scope and other documentation as required
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ANNEXURE “J”
(ANNEXURE REFERENCE FROM VOLUME 1)
DRAFT SPACE PLANNING LAYOUTS FROM TABLE 1 OF VOLUME 3

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ANNEXURE “Q”
(ANNEXURE REFERENCE FROM VOLUME 1)
FIT OUT SCOPE OF WORKS

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ANNEXURE “R”
(ANNEXURE REFERENCE FROM VOLUME 1)
FIT OUT PROGRAMME

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ANNEXURE “S”
(ANNEXURE REFERENCE FROM VOLUME 1)
MOVE PROGRAMME

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