Kovacs Investments 724 (Pty) Ltd v Marais (323/08) [2009] ZASCA 84; [2009] 4 All SA 398 (SCA) (20 August 2009)

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[2009] ZASCA 84
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Kovacs Investments 724 (Pty) Ltd v Marais (323/08) [2009] ZASCA 84; [2009] 4 All SA 398 (SCA) (20 August 2009)

THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case
No: 323/08
KOVACS
INVESTMENTS 724 (PTY) LTD
APPELLANT
and
FREDERICK
CARTER MARAI
S
RESPONDENT
Neutral
citation:
Kovacs
Investments 724 (Pty) Ltd v Marais
(323/2008)
[2009] ZASCA 84
(20 August 2009.)
Coram
: MPATI
P, BRAND, LEWIS, MAYA JJA and BOSIELO AJA
Heard
: 4
MAY 2009
Delivered
:
20
AUGUST 2009
Summary
: Contract
– sale of immovable property – written agreement – securing
loan in amount less than that stipulated constitutes
variation of
term and not merely waiver of right – contrary to provisions of s
2(1) of Alienation of Land Act and to no variation
clause.
___________________________________
__________________________________
ORDER
__________________________________
___________________________________
On
appeal from: High Court of South Africa
(Cape
of Good Hope Provincial Division)
(Thring
J sitting as court of first instance)
1. The
appeal is dismissed with costs, including those consequent upon the
employment of two counsel.
JUDGMENT
MPATI
P
(BRAND,
LEWIS, MAYA JJA and BOSIELO AJA concurring)
[1] There
are two issues in this appeal
.
The first is whether an agreement of sale in respect of a portion of
certain fixed property had lapsed due to non-fulfilment of
suspensive
conditions contained in the deed of sale (the written agreement). The
second is whether an alleged joint venture to
purchase the entire
fixed property is valid and binding on the parties.
[2] On
29 July 2005 the parties to this appeal concluded a written agreement
of sale in terms of which the respondent sold to the
appellant ‘the
commercial section’ of a building known as SANBEL, situated in
Bellville, Cape Town, together with certain parking
bays. (I shall
refer to the entire fixed property as ‘SANBEL’ and to the
commercial section as ‘the property’.) The agreed
purchase price
of R18 454 041 would be payable as follows:
(a)
a deposit of R8 304 319 was to be paid to the respondent’s
attorneys in two instalments, R7 627 444 on or before 15 August
2005,
and R676 875 ‘on or before the possession date’;
(b) the
balance of R10 149 722 was to be secured by way of a loan from a bank
or financial institution. The loan had to be granted
by 15 August
2005.
In
terms of the written agreement, the appellant, as purchaser, was
entitled to occupation
of
the property on the date ‘of registration of transfer of the erf in
favour of the seller’.
1
[3] The
written agreement contains two suspensive conditions. The first
(clause 4.1) provides that -
‘
.
. . this contract is subject to the suspens
ive
condition that the Purchaser is granted a loan within the period
specified in paragraph C(e) of the main contract from a bank
or
financial institution in the amount [of R10 149 722] . . . on the
terms that the aforesaid bank or financial institution normally

approves mortgage loans for the purchase for Commercial Sectional
Title Units.’
The
period specified in para C(e) of the main contract is the date 15
August 2005
.
Clause 4.7 reads:
‘
The
suspensive condition in 4.1 above is imposed for the benefit of both
the Purchaser and Seller and the benefit of this condition
can only
be wa
ived
or amended by mutual agreement between the Purchaser and Seller.’
The second suspensive
condition is contained in clause 28 of the written agreement and is
in the following terms:
‘
This
contract is subject to the fulfilment of the suspensive condition
that the Purchaser obtains written approval of the terms
and
conditions of this agreement from investors nominated by Interneuron
Property (Pty) Ltd, which approval must be obtained on
or before 15
August 2005.’
[4]
It is common cause that the sum of R7 627 444 that was due by 15
August 2005 as part of the deposit was not paid timeously.
On 17
August 2005 the respondent advised the appellant by e-mail that the
uncertainty about ‘the status of our agreement’ was
unacceptable.
The communication ended with the words: ‘. . . your non performance
leads me to regard our transaction as cancelled
as of 15 August
2005’. Although the appellant’s response of the same day was that
‘[i]n terms of the breach clause in the
agreement you will need to
give us written notice of breach and seven days to remedy the
breach’, one Marthie Horn, representing
the appellant, corresponded
by e-mail with the appellant on 19 August 2005 in the following
terms:
‘
We
have worked through the Agreement and would like to record the
following:
1. that
the suspensive condition in clause 4.1 has been fulfilled – a loan
has been granted by Standard Bank as determined in
that clause;
2. .
. .
3. that
the suspensive condition in clause 28 has been fulfilled – written
approval of the agreement has been obtained from those
investors
nominated by Interneuron Property as determined in that clause;
4. that
we are ready to pay the deposit as indicated in clause 3.1 of the
agreement.
.
. . .’
The
full deposit was
in
fact paid on the same day. Both parties subsequently took certain
steps to put the agreement into operation and on 20 September
2005
the appellant took possession of the property
and
has, since then, collected rentals in respect of it.
[5] It
is not in dispute that
,
contrary to the contents of Marthie Horn’s e-mail of 19 August
2005, the suspensive condition in clause 4.1, relating to the

securing of a loan for the balance of the purchase price, was not
fulfilled. By 15 August 2005 the respondent had been able to
obtain a
loan in the sum of R9 650 000, which was R499 722 less than the
amount stipulated in the written agreement. According
to the
respondent, this fact came to his knowledge almost 21 months later,
on 10 May 2007, after he had insisted on ‘substantiated
information
confirming actual compliance with the suspensive condition’. Over
that period of almost 21 months the respondent
had, on two occasions,
sought unsuccessfully to cancel the sale with the appellant’s
concurrence. The reasons for the attempted
cancellation are not
germane to this appeal.
[6] In
their letter of 10 May 2007, in which the respondent’s attorneys
were advised of the actual amount of the loan
2
obtained by the appellant, the latter’s attorneys claimed that
whilst the amount of the approved loan ‘is slightly less than
the
amount specified in the agreement of sale, the condition was
substantially fulfilled’. The letter went further:
‘
In
any event – and only to the extent that your client may now seek to
contend that there was not substantial fulfilment of the
condition –
his conduct evidences a mutual acceptance (and hence agreement) with
Kovacs that all suspensive conditions had been
fulfilled and that the
agreement came into operation.
He
has thus waived any such non-fulfilment, alternatively and in any
event is estopped from asserting, . . . that the suspensive

conditions were not fulfilled and/or that the agreement did not come
into operation. Clause 4.7 of the agreement did not require
waiver of
the condition to be in writing, and there is no contractual bar to an
estoppel.’
[7] On
25 June 2007 the respondent commenced motion proceedings
in
the Cape High Court seeking an order declaring the written agreement
to be of no force and effect, on the basis of non-fulfilment
of the
two suspensive conditions contained in it. On the same day the
appellant, as plaintiff, issued summons against the respondent,
as
defendant, in which it sought an order declaring, inter alia, the
written agreement between them to be of full force and effect.
In the
alternative, the appellant sought an order declaring SANBEL ‘to be
an asset of a joint venture between [the appellant
and the
respondent]’. The appellant asserts that the rights and benefits
attaching to the property accrued to it, with the rest
of SANBEL
accruing to the respondent.
[8] On
3 September 2007 the appellant launched a counter-application in
which it sought an order, pending the determination of the
action,
interdicting and restraining the respondent from alienating,
encumbering or otherwise disposing of the property, and other

ancilliary relief. In the affidavit in support of the
counter-application, which also served as an answering affidavit to
the
respondent’s founding affidavit, the appellant prayed for the
dismissal of the respondent’s application, with costs;
alternatively,
a stay of the application pending the outcome of its
action proceedings against the respondent.
[9] The
Cape High Court (Thring J) found that there was no suggestion that
any waiver of the non-fulfilment of clause 4.1 of the
written
agreement had taken place on or before 15 August 2005. The court held
that on that day the agreement of sale automatically
lapsed. It
accordingly granted the order sought by the respondent and dismissed
the appellant’s counter-application with costs.
It also allowed, in
part, the respondent’s application to strike out certain paragraphs
from the appellant’s replying affidavit
in the counter-application.
This appeal is with its leave.
[10] In
this court it was argued, on behalf of the appellant, that
in
dismissing the counter-application the court misconstrued the
appellant’s case and overlooked the common cause facts which
were
the fundamentals of that case in relation to clause 4.1 of the
written agreement. The common cause facts are, so it was contended,

that both parties were aware, prior to 15 August 2005, of the
‘slight’ shortfall in the amount of finance approved, and that

notwithstanding their shared knowledge of this fact, both parties
went ahead in implementing the sale. In the action the appellant

avers, in its particulars of claim,
3
that
in proceeding to implement the sale before 15 August 2005 the
respondent ‘orally and/or tacitly accepted the sufficiency
of the
loan approval and that the condition had been fulfilled and thereby
waived the benefit of any further compliance’ with
the terms of
clause 4.1. It is further alleged that the appellant also waived the
benefit of any further compliance with the provisions
of the clause
insofar as the amount of the loan was concerned and that in acting as
they did the parties mutually agreed to waive
the benefit of any
further compliance with the provisions of clause 4.1
[11] It
is indeed common cause that the respondent gained knowledge of the
fact that Standard Bank had offered the appellant a loan
in an amount
less than that stipulated in the written agreement before 15 August
2005. I should mention,
en
passant
,
that I agree with Thring J that a shortfall of almost half a million
rand cannot be dismissed as insignificant or insubstantial,
or
‘slight’, even if it represents a small portion of the total
purchase price. In a supporting affidavit in the counter-application

one Grant Nicholas Kolbe, a former accounts manager at Standard Bank,
testified that during a meeting he had with the respondent
on 10
August 2005 he informed the respondent that Standard Bank ‘had
approved a loan in the sum of R9 650 000 to the [appellant]’.
The
respondent admits this fact – though not necessarily the date of
the meeting – in his replying affidavit, but goes on to
say that
when Marthie Horn thereafter informed him that the condition relating
to the loan had been fulfilled, he had no reason
to believe that this
impediment (of the approval of a loan in a lesser amount) had not
been removed, either by way of a personal
suretyship having been
signed by Willem Daniel Jonker, the managing director of the
appellant, or by Standard Bank having increased
the loan amount so as
to comply with the suspensive condition. He accordingly denies the
existence of a mutual waiver as alleged.
[12] It
is convenient at this stage to quote the terms of clause 22.3 of the
written agreement. The clause reads:
‘
No
variation of the terms and conditio
ns
of this contract or any purported consensual cancellation thereof
shall be of any force or effect unless reduced to writing and
signed
by the parties or their duly authorized representatives.’
Counsel
for the respondent submitted that even assuming in favour of the
appellant that a waiver of the fulfilment of clause 4.1
was tacitly
concluded, that would not be sufficient to save the sale agreement.
This is so because a waiver of the suspensive condition
in clause
4.1, ie an agreement to implement the sale notwithstanding the
furnishing of a loan in a lesser amount than that stipulated
in the
written agreement, would constitute a variation of the contract.
That, counsel contended, offends against the provisions
of s 2(1)
of the Alienation of Land Act,
4
which provide that no alienation of land ‘shall … be of any force
or effect unless it is contained in a deed of alienation
signed by
the parties thereto or by their agents acting on their written
authority’. Counsel submitted, further, that the amendment
or
variation
is
prohibited by clause 22.3 (the non-variation clause) of the written
agreement, since it was not in writing. The effect of the
waiver,
counsel correctly contended, would be to substitute the sum of R10
149 722 specified as the loan amount that was required
to be secured,
with the amount of R9 650 000.
[13]
It was argued on behalf of the appellant, on the other hand, that the
‘informal consensus’ which the parties had reached (the
alleged
mutual waiver) did not constitute a variation of the terms of the
written agreement and thus did not offend against the
non-variation
clause, nor the provisions of the Alienation of Land Act. Counsel
contended that an informal agreement between the
parties to a sale of
land to accept, as fulfilment of a term, a performance which is less
than, or different to, that stipulated
by the strict letter of the
contract does not amount to a variation of the contract. Such
agreement, so the submission continued,
is effective and results in
the fulfilment of the obligation concerned. In support of his
argument counsel relied on the decisions
in
Gouws
NO v Montesse Township & Investment Corporation (Pty) Ltd;
Montesse Township & Investment Corporation (Pty) Ltd v
Standard
Bank of South Africa Ltd
1964
(3) SA 221
(T);
Van
der Walt v Minnaar
1954 (3) SA 932
(O) and
Profin
v Ragghianti
1983 (3) SA 371
(W).
[14] In
one of two contracts the court had to deal with in
Gouws
NO v Montesse Township
the purchaser’s obligation, in terms of a deed of sale in a
property transaction, was to pass two mortgage bonds of £11
750
in favour of each of the two sellers. At the purchaser’s request
the sellers agreed that, instead of the two bonds, one of
£23
500 should be passed in favour of one of the sellers. After the death
of that seller the purchaser refused to pass a
bond in favour of his
estate and the remaining seller. The latter accepted the refusal as a
repudiation of the contract and cancelled
the agreement of sale.
Counsel for the purchaser contended that the seller’s refusal, on
which reliance was placed for the cancellation,
was not a refusal to
comply with a contractual obligation, and that therefore no valid
cancellation could be founded on it. He
submitted that a material
term of a contract for the sale of land could not be varied otherwise
than by a written agreement signed
by the parties, or by their
agents, authorised thereto in writing in terms of the applicable
legislation. The court agreed that
the agreement to pass one mortgage
bond instead of two was unenforceable. However, it made the following
observation:
‘
But
despite that, the substantial performance agreed upon by parol could
have been carried into effect and, if it had been accepted
by the
sellers as a compliance with the purchaser’s oblig
ations,
it would effectively have discharged those obligations (see
Van
der Walt v Minnaar
1954 (3) SA 932
(O), and the authorities referred to therein).’
5
The court held that the
sellers were thus entitled to cancel.
[15] In
Van
der Walt v Minnaar
the plaintiff claimed from the defendant payment of the balance of
the purchase price in respect of land which had, in terms of
a
written agreement, to be secured by way of a bank guarantee in favour
of the plaintiff, as seller. The defendant pleaded that
the amount
(balance) claimed had been paid since, in lieu of performance in
terms of the written agreement, the plaintiff’s husband,
acting as
her authorised agent, requested him, and he agreed, to stand surety
in respect of a loan that he (the plaintiff’s husband)
was to
obtain from a bank. In terms of that agreement and to the knowledge
of the plaintiff the defendant was required to, and
did, pay the
security, being the equivalent of the balance of the purchase price.
In an exception taken against the plea on the
ground that it did not
disclose a defence, counsel contended that the defences raised
amounted to an amendment of the manner of
payment of the purchase
price as stipulated in the written agreement; that the manner of
payment of the purchase price was a material
term of the contract and
that such amendment could only be effected in writing in terms of the
applicable legislation. The court,
having reviewed a number of
decisions, including English
authorities,
6
said:
‘
Waar
die betrokke partye in staat en gewillig is om die bepalings van die
geskrewe kontrak stiptelik n
a
te kom en waar enige van sodanige bepalings, op versoek van een van
die partye daartoe en deur vergunning van die ander party,
op ‘n
ander as die voorgeskrewe wyse
ten
volle
nagekom is, dan kan die feit van nakoming deur ekstrinsieke getuienis
bewys word.’
7
(My
underlining.
8
)
Similar
sentiments were expressed in the
Profin
decision, where Gordon J said the following:
‘
Where
one of the obligations under the sale is performed in a manner other
than that provided in the sale, and if such performance
is accepted
by the other party as sufficient compliance, then the obligation is
discharged
.
In such a case actual performance is substituted for that contracted
for, “or because of waiver or election or estoppel”.’
9
The
court was
,
at that point in the case, dealing with the question whether a waiver
had been successfully established in regard to the obligations
of a
purchaser of certain fixed property. A guarantee for payment of the
balance of the purchase price had been furnished by, or
on behalf of,
the purchaser, and accepted on behalf of the seller by the latter’s
attorneys almost four months after the date
stipulated in the written
agreement.
[16] The
principle that emerges from these decisions, and others not mentioned
here, including decisions of this court,
10
is
that provided the obligations under a written agreement are to be
complied with in full, performance of one of the obligations
in a
manner different from that stipulated in the written agreement, and
accepted by the other party, would be considered as sufficient,
or
substantial, compliance and the obligation as having been discharged.
And where the different manner of performance was at the
request of
one party, and orally (or tacitly) agreed to by the other, the fact
of such performance, ie that the obligation has
been discharged, may
be proved by extrinsic evidence. The agreement for a different manner
of performance does not have to be in
writing.
[17] A
question that could be asked, legitimately so, I think, is whether a
deviation from the performance of an obligation as required
by a
written agreement does not amount to a variation of the contract
.
In
Neethling
v Klopper
11
Steyn CJ reasoned that clauses (in written agreements) relating to
the manner and time within which payment of the purchase price
is to
be made, generally fall under the category of material (wesenlike)
provisions. As such, they cannot be varied or amended
by oral (or
tacit) agreement. But that does not mean, said the learned Chief
Justice, that on a restrictive interpretation of the
provision (that
requires an agreement of sale of land to be in writing) no variation
or amendment by consensus or oral agreement
of the provisions of such
clauses may be permissible.
12
In
Venter
v Birchholtz
13
Jansen JA added that ‘…lê daar in die geval van ‘n latere
wysiging van ‘n kontrak die gedagte opgesluit van ‘n

afstanddoening van bestaande regte wat uit die kontrak voortvloei . .
. .’
14
[18] It
is not
my
intention, in this judgment, to attempt to draw a distinction between
a variation and a waiver since I conclude later that the
appellant
was in fact contending for a variation – a change in the quantum of
the loan to be obtained. But as pointed out by
Nestadt J in
Van
As v Du Preez
15
a waiver ‘does not
per
se
result in the contract being altered’.
16
In her article
The
Effect of Non-variation Clauses in Contracts
17
Louise Tager states that ‘that a waiver does is to suspend,
temporarily, the enforcement of the obligation.’
18
[19] In
the present matter counsel for the appellant contended that it was
not the latter’s case that the parties agreed to amend
the clause
containing the suspensive condition (‘subject to loan’ clause) by
replacing the amount in it with a lesser amount.
He conceded,
however, referring to
Borstlap
v Spangenberg
19
and
Fairoaks
Investment Holdings (Pty) Ltd v Oliver,
20
that such an agreement would ‘probably’ amount to an
impermissible amendment of the terms of the written deed of sale.
Realising
this impediment, counsel submitted that the appellant’s
case was that when the parties learned, by no later than 10 August
2005,
of the shortfall in the loan granted or offered to the
appellant, they both nonetheless proceeded to implement the sale,
thereby
waiving the ‘subject to loan’ clause, or any further
compliance with it, by their conduct.
[20] It
is true, as counsel for the appellant submitted, that a ‘subject to
loan’ clause in a sale of land may be informally
waived. That was
indeed the position in
Van
Jaarsveld v Coetzee
,
21
where
a clause in the written agreement stipulated that the sale of a farm
was subject to the purchase price of R40 000 being
paid by way
of a loan of R20 000 to be secured from the Land Bank and paid
upon registration of transfer; that R10 000
was payable by way
of a bank guarantee or cash deposited in the trust account of an
attorney and paid on registration of transfer,
and the balance of
R10 000 to be paid five years after the registration of
transfer. The purchaser failed to obtain a loan
from the Land Bank as
required, but secured a bank guarantee for R30 000. The clause
provided that the procurement of a loan
from the Land Bank was a
condition precedent to the continued existence or survival of the
agreement of sale. In rejecting an argument
that the agreement had
lapsed upon failure by the purchaser to obtain a loan from the Land
Bank, this court reasoned that the clause
had to be interpreted so as
not to lead to an absurdity, such as to give the meaning that the
seller had the right to refuse a
cash payment by the purchaser on
registration of transfer and to declare the agreement null and void
merely because a first mortgage
had not been secured from the Land
Bank.
22
It was held that an agreement must be interpreted such that it is,
preferably, kept extant.
[21] Clearly,
the decision in
Van
Jaarsveld v Coetzee
demonstrates what has sometimes been referred to as ‘substantial’,
or ‘substituted’ performance. Upon registration of transfer,
the
seller would have received his R30 000 which the purchaser had to pay
in terms of the agreement even though no loan could be
obtained from
the Land Bank. The position in the present matter is different. Here,
the appellant seeks to claim that it has substantially
performed when
it could raise a loan only in an amount less than that stipulated in
the written agreement. Jonker makes no averment
whatsoever, in any
one of his affidavits, of an agreement as to how and when the deficit
of almost R500 000 would be payable. He
suggested that he would have
obtained the full amount through his giving the bank additional
security, but nowhere was it alleged
that the respondent was aware of
this possibility, or that the bank would in fact have approved a loan
for the full amount. Thus,
in my view, the change to the quantum of
the loan approved by the bank is not a waiver but an amendment to the
condition which
does result in the contract being altered.
23
It
is not a temporary suspension of the enforcement of an obligation.
What would in fact have occurred is that the appellant’s
obligation
to secure a loan for the balance of the purchase price of R10 149 722
would have been altered or amended to one where
the appellant had now
to procure a loan for a lesser amount, with no agreement on when and
how the deficit was to be secured or
paid.
[22] The
contention, on behalf of the appellant, that it was not the
appellant’s case that the parties agreed to amend the ‘subject
to
loan’ clause by replacing the amount in it with a lesser amount
does not hold water. As was said in
Van
As v Du Preez
‘oral variation masquerading as or in the guise of a waiver remains
. . . what it truly is’.
24
It remains a variation. To hold otherwise, the court concluded,
‘would be to render nugatory the principle of the effectiveness
of
contractual entrenchment as laid down in
Shifren’s
case’.
25
And in
Van
der Walt v Minnaar
26
Horwitz
J held that where the provisions of a written agreement are altered
in the sense that a provision therein is deleted and
an oral (or
tacit) obligation substituted in its place, then no contract exists
which covers both the original agreement and the
amendment. The
amended agreement, therefore, would not comply with the provisions of
the legislation which required an agreement
for the sale of land to
be in writing.
27
The
same would apply in this case were the argument on the existence of a
tacit agreement to waive the ‘subject to loan’ clause
to be
upheld. The alleged tacit agreement would be contrary to the
provisions of s 2(1) of the Alienation of Land Act.
28
[23] In
my view, the so-called waiver of the benefit of any further
compliance with the provisions of clause 4.1 of the written

agreement, allegedly mutually agreed to between the parties, in fact
amounts to an amendment or alteration of that clause. The
amendment
or alteration is contrary to the provisions of s 2(1) of the
Alienation of Land Act and to the non-variation clause in
the written
agreement, as it is not in writing. It follows that the written
agreement lapsed at the end of the day on 15 August
2005.
[24] This
conclusion disposes of the further arguments advanced on behalf of
the appellant, viz that there was substantial fulfilment
of the
suspensive condition in clause 4.1 of the written agreement, and that
the respondent is estopped, by his conduct in proceeding
to implement
the sale, from denying that he had accepted the amount of the bond
granted to the appellant as substantial and sufficient
compliance
with the suspensive condition, and from denying that he waived the
benefit of compliance with the condition. It also
renders unnecessary
a consideration of the question whether the second suspensive
condition was fulfilled. I may mention, however,
that in all the
decisions I have referred to above, where performance had been held
to have constituted substantial or sufficient
compliance, there had
been a different manner of, but
full
,
performance of an obligation. In the present matter, for example, the
acceptance by the respondent of payment of the deposit on
19 August
2005, instead of 15 August 2005, or before, as stipulated in the
written agreement, constituted a waiver of the right
to demand
payment on the earlier date. As to estoppel, I am of the view that
the appellant’s case is defeated by the contents
of the letter of
19 August 2005, by which the respondent was informed that the
suspensive conditions had been fulfilled. It was
only after receipt
of this letter, which misled him into believing that the suspensive
conditions had been fulfilled, that the
respondent took steps to
implement the sale agreement. The appellant has not shown any action
on the part of the respondent, other
than an alleged ‘acceptance’
of information from Kolbe that a loan in a lesser amount had been
offered to it, to support the
allegation that the respondent took
steps to implement the agreement before 15 August 2005.
[25] This
brings me to the second issue in the appeal, viz whether an alleged
joint venture to purchase SANBEL is valid and binding
on the parties.
In his founding affidavit, in the appellant’s counter-application,
Jonker avers that even if the main application
were to be determined
in favour of the respondent, this will not be dispositive of the
question whether the latter is obliged to
give transfer of the
property to the appellant. Jonker alleges further that prior to the
conclusion of the sale agreement an arrangement
existed between the
parties which involved ‘the combining of [their] respective
resources to acquire the Sanbel building as an
investment for the
benefit of both’. In terms of this arrangement the respondent’s
share would comprise the ‘office section’
and the appellant’s
the ‘commercial section’ (which is the subject of the sale
agreement). The appellant accordingly claims
transfer of the property
also on the basis of the alleged joint venture agreement, hence the
orders sought in the counter-application.
[26] The
further details of the alleged joint venture agreement and the
combining of resources are pleaded in paras 4, 5 and 6 of
the
particulars of claim in the action. In the counter-application Jonker
confirmed those allegations, as pleaded, as correct.
It is necessary
to quote only sub-paragraph 5.4, which reads:
‘
5.4 Plaintiff’s
entitlement to the commercial section in terms of the joint venture
would be structured (in accordance with a
proposal made by Defendant
and his legal representatives) in the form of an agreement of sale in
terms of which Plaintiff would
acquire the commercial section in
return for amounts commensurate with its required co
ntribution
to the joint venture and the acquisition of the building.’
It
is
then
pleaded, in para 6, that subsequent to the conclusion of the joint
venture ‘and in pursuance thereof’ the parties concluded
the sale
agreement. Counsel for the appellant conceded in this court that the
written agreement discussed above is indeed the sale
agreement
referred to in the particulars of claim, and that the respondent was
required to do nothing more under the alleged joint
venture
agreement.
[27] I
find it difficult to understand how, when the appellant has itself
allowed the sale agreement to lapse, it can still rely
on the alleged
joint venture for a claim for transfer of the property to it. And
like the court a quo, I am unable to see why,
if the appellant’s
claim based solely on the alleged joint venture agreement were to
survive an order granting the relief sought
in the main application,
that in itself should be a reason to dismiss the application, or
postpone it
sine
die
,
as prayed for by the appellant.
[28] The
appeal is dismissed with costs, including those consequent upon the
employment of two counsel.
MPATI
P
COUNSEL
FOR APPELLANT : J G DICKERSON SC
M
BLUMBERG
INSTRUCTED
BY : SMITH TABATA BUCHANAN BOYES
CAPE
TOWN
CORRESPONDENT : MATSEPES
INC
BLOEMFONTEIN
COUNSEL
FOR RESPONDENT : A G BINNS-WARD SC
J
A VAN DER MERWE
INSTRUCTED
BY : MOSTERT & BOSMAN ATTORNEYS
BELLVILLE
CORRESPONDENT : McINTYRE
& VAN DER POST
BLOEMFONTEIN
1
At the time of the
conclusion of the agreement SANBEL had not as yet been transferred
to the respondent by the previous owner.
2
The letter of approval of the loan from Standard Bank, which was
annexed to the appellant’s attorney’s letter of 10 May 2007,
is
dated 2 August 2005.
3
The combined summons and
particulars of claim were annexed to the appellant’s founding
affidavit in the counter-application.
4
68 of 1981.
5
At 227 B-C.
6
Eg
Morris v Baron and Co
1918 AC 1
at 30;
British
and Beningtons Ltd v N W Cachar Tea Co Ltd
1923 AC 48
at 62, and
Besseler;
Waechter Glover and Co v South Derwent Coal Co Ltd
1938 (1) KB 408
at 416.
7
At 937 A-B.
8
The English translation
of this passage, sourced from the headnote, reads: ‘ . . . where
the parties concerned are in a position,
and are willing, to perform
their obligations under the written contract strictly, and where one
of such obligations, at the
request of one party and as a favour by
the other party, is fully performed in a manner other than that
provided in the agreement,
then the fact of such performance can be
proved by extrinsic evidence.’
9
At 380 A-B.
10
See
Van Jaarsveld v Coetzee
1973 (3) SA 241
(A), and
Neethling
v Klopper
1967 (4) SA 459
(A).
11
Ibid.
12
At 465 B-C.
13
1972 (1) SA 276
(A).
14
At 286 F-G. A loose translation would be: ‘Moreover, in a case of
a subsequent amendment of the agreement (ie after the written

agreement had been concluded) there is, by implication, a waiver of
existing rights which flow from the contract.’
15
1981 (3) SA 762
(T).
16
Ibid, at 764 G-H.
17
1976 SALJ 423.
18
P 436.
19
1974 (3) SA 695
(A) at 704A-D.
20
2008 (4) 302 (SCA) para
21.
21
Above footnote 10.
22
At 244E-G.
23
Van As v Du Preez
,
above footnote 16.
24
Ibid at 765F.
25
Ibid at 765F-G. It was held in
SA
Sentrale Ko-op Graanmaatskappy Bpk v Shifren
1964 (4) SA 760
(A) that a contract which contained a clause
providing that any variation of its terms should be in writing,
otherwise it would
be of no force and effect, could not be altered
orally. The decision has been affirmed recently by this court in
Brisley v Drotsky
2002
(4) SA 1
(SCA).
26
1954 (3) SA 932
(O).
27
Ibid at 937B-C.
28
Compare also
Borstlap
v Spangenberg
footnote 19
at 704A-D.