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[2015] ZAECBHC 15
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Beck Trading CC v Good Hope Textile Corporation (Pty) Ltd t/a DA Gama Textiles and Another (631/2014) [2015] ZAECBHC 15 (28 August 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION, BHISHO
Case no. 631/2014
In the matter between:
BECK
TRADING CC
Applicant
And
THE
GOOD HOPE TEXTILE CORPORATION
(Pty)
Ltd t/a DA GAMA TEXTILES
First
Respondent
DA
GAMA INTERNATION TEXTILES (Pty) Ltd
Second
Respondent
JUDGMENT
STRETCH
J:
[1]
This is an application for an order for
specific performance compelling the first respondent to comply with
its obligations in terms
of a written agreement entered into between
the applicant and the first respondent on 16 November 2006 (“the
agreement”).
[2]
The agreement is in two parts. The
first part governs the sub-letting by the first respondent to the
applicant of a certain
portion of land described as farm number 2280
in the administrative district of King Williams Town (“the
land”).
[3]
The second part of the agreement is for the
sale of this land for an agreed price by the first respondent to the
applicant, which
sale would become effective upon the date of
registration of transfer of the land from the previous owner (the
Government of the
Republic of South Africa) to the first respondent.
[4]
The second respondent was joined due to its
interest in a mortgage bond registered over the property, and does
not oppose the application.
[5]
Clause 4.4 of the agreement provides that
the parties, upon registration of transfer of the property to the
first respondent, would
take all necessary steps to effect transfer
of the land to the applicant, and that the purchase price would be
payable upon the
date of registration of transfer of the land from
the first respondent to the applicant.
[6]
Considerable unforeseen delays were
experienced by the first respondent to procure registration of
transfer of the land to it by
the Government, resulting in this court
compelling it to do so on 9 December 2010. Notwithstanding
this, registration of
transfer of the land to the first respondent
only took place on 6 May 2014. None of these delays are
attributable to
any conduct on the applicant’s part.
[7]
The applicant’s case is that the sale
became effective on 6 May 2014 (when transfer from the Government to
the first respondent
was registered) whereupon the first respondent
became obliged to transfer the property to it in terms of the
agreement. The
applicant accordingly demanded transfer on
12 September 2014.
[8]
The first respondent’s response to
the demand was that:
8.1
The condition at clause 3.2 of the
agreement (which the first respondent claimed was a suspensive
condition which applied to the
whole of the agreement and not just to
the sale portion thereof) had not been fulfilled.
8.2
The applicant had not obtained all the
necessary consents and permission to build commercial premises on the
land.
8.3
A lapse of almost eight years since the
date that the agreement had been entered into was more than
reasonable time for the fulfilment
of the suspensive condition.
8.4
Accordingly, the agreement had fallen away.
[9]
The application before me is essentially
about the interpretation of the agreement, and particularly clause
3.2 thereof. Clause
3.2 of the agreement reads as follows:
‘
Da
Gama [the first respondent] acknowledges that Beck [the applicant]
intends to build commercial premises on the land and this
agreement
is subject to Beck obtaining all necessary consents and permission
from all relevant authorities of whatsoever nature
to enable it to
build commercial premises it desires on the land and Da Gama
furthermore shall be obliged to assist Beck in obtaining
all
necessary consents and permission to so build.’
[10]
The applicant denies that this is a
suspensive condition. It contends that at best the clause conveys a
recording and a term of
the agreement.
[11]
In the alternative, the applicant contends
that if this court finds that the clause reflects a true condition,
then that condition
firstly relates only to the sale of the property,
secondly, that it is not suspensive and thirdly, that it was included
for the
applicant’s benefit. If this is the position, it
is then the applicant’s case that the condition can either be
fulfilled or waived within a reasonable period of time after 6 May
2014 (being the date on which the first respondent took transfer),
which time had not elapsed by the time the applicant broached the
issue of onward transfer of the land to it during September 2014.
[12]
The effect of the first respondent’s
contention that the clause contains a suspensive condition, is that
unless that condition
is fulfilled there is no sublease or sale
agreement between the parties, due to the fact that a suspensive
condition usually suspends
the operation of obligations under a
contract (either wholly or partly) until the condition has been
fulfilled.
[13]
The applicant’s counter-argument is
that the only obligations which were suspended in terms of the
agreement are firstly,
that of the first respondent to transfer the
property to the applicant, and secondly, that of the applicant to pay
the balance
of the purchase price upon transfer, but that neither of
these obligations were postponed pending the fulfilment of any of the
terms contained in the clause. On the contrary, it is argued
that the obligations are expressly postponed until the sale to
the
applicant becomes effective, which would be on the date of
registration of transfer of the land from the Government to the
first
respondent.
[14]
According to the first respondent the crisp
issue is whether the agreement contemplated that the commercial
premises which the applicant
intended erecting were to be erected
during the course of the sub-lease or only after ownership had been
transferred.
[15]
The agreement is divided into sections
under various sub-headings in bold. Paragraph 2.4.2 appears
under the heading “letting
and hiring” and effectively
lists the payment of rental in the following order:
15.1
a deposit of R50 000 payable upon signature
of the agreement;
15.2
thereafter, one rand per month until the
applicant occupies the land for commercial and trading purposes;
15.3
a second deposit of R50 000 when the
applicant takes occupation for commercial and trading purposes;
15.4
after occupation, monthly rental of one
million rand less any deposits, multiplied by the prime bank rate of
interest and divided
by 12.
[16]
The first respondent contends that what
emerges from clause 2.4.2 is that the agreement contemplated that the
commercial premises
which were intended to be erected were to be
erected during the course of the sub-lease and not only when
ownership had been transferred
to the applicant.
[17]
It seems from the manner in which the
rental is structured that it may have been within the contemplation
of the parties that the
applicant would take occupation of the
premises for commercial and trading purposes before taking ownership.
To my mind the
idea that there was a prospect, an expectation
or even an intention of this happening, does not necessarily mean
that if this did
not come about during the existence of the sublease
(for reasons which I shall presently traverse), the applicant is
barred from
purchasing the property. If this were the position
I would have expected the parties to have clarified this when they
dealt
with the terms and conditions of the agreement of sublease,
which, in terms of clause 4.5 of the agreement would be “applicable
between the parties” until registration of transfer of the land
from the respondent to the applicant. However, clause
2.4
setting out the terms and conditions of the sublease is silent on the
issue of consents and permission to develop the land.
[18]
It is not only the structuring of the
rental agreement which leads me to this conclusion. Clause 3.2
is the second of two
clauses under a heading which reads:
“APPLICATION OF THE PRINCIPAL LEASE” (in other words
between the first respondent
and the Government). The clause
preceding it reads as follows:
‘
3.1
Da Gama warrants that it has the necessary permission or consent of
the owner in title to the land to enter into this Agreement
of
Sublease with Beck and failing which Da Gama shall take all steps
necessary to obtain the permission of the owner in title.’
[19]
If clause 3.2 contains a suspensive
condition, it means that the coming into operation of the sublease
referred to in clause 3.1
is suspended pending the applicant
obtaining consents and permission to develop the land with the
assistance of the first respondent.
This was clearly not the
intention of the parties. Clause 2.4.1 states that the sublease
shall come into operation
on the date of the signature of the
agreement by the first respondent, which the first respondent did as
far back as 10 November
2006.
[20]
It is furthermore common cause that the
applicant has, since then, paid some of the agreed rental to the
first respondent.
[21]
In my view a commercially sensible analysis
of clause 3.2, going no further than the application of the ordinary
grammatical meaning
of the words used and the style of language
employed, is likely to lead the reasonable reader thereof to conclude
that the clause
reflects the following:
21.1
A recording that the first respondent
acknowledges what the applicant intends to do with the land. The
Shorter Oxford English Dictionary
on Historical Principles (1980 4ed
17) defines the verb “acknowledge” as follows:
‘
1.
To own the knowledge of; to confess; to
admit as true.
2.
To
recognize or confess (a person or thing to be something); or,
simply,
to own the claims of.
3.
To own as genuine, or
valid in law; to avow or assent to, in legal form.
4.
To own
as an obligation; hence, to acknowledge (the receipt of) a letter.’
In essence the clause
begins with the formality of recording that the respondent recognizes
and admits that the purpose for which
the applicant wants the land is
to construct business premises.
21.2
A recording that the first respondent
recognizes and admits that the applicant cannot simply go ahead and
construct commercial premises,
but that it needs to obtain the
approval of various authorities to do so, stipulating that the
obligation to do so lay with the
applicant (and by implication not
with the first respondent).
21.3
A recording that the first respondent
recognizes and admits a peremptory obligation on its part to help the
applicant to get this
approval without which the applicant cannot use
the premises for the intended purpose.
21.4
A recording that the respondent recognizes
and admits that the applicant’s agreement to purchase the land
was reliant on the
applicant’s success in obtaining the
consents and permission, and to that end the first respondent was
obliged to assist
the applicant.
[22]
To
my mind, and if I were constrained to rely solely on the plain
meaning of the words (which according to the first respondent
is all
that is really required) I would be inclined to prefer this
interpretation over the view that the clause contains a suspensive
condition. I say so because although the words ‘subject
to’ or ‘onderworpe aan’ usually indicate
a
suspensive or even a resolutive condition these words do not
a
priori
indicate
an intention to create such a condition. They may be inserted
for various reasons. In certain circumstances, for
example, they may
be used to reflect a term of the contract.
[1]
[23]
The first respondent contends that the only
interpretation open to clause 3.2 is that it contains a suspensive
condition. The
applicant, on the other hand, contends for
various other interpretations, other than those incorporating a
suspensive condition.
[24]
A
condition is an external fact on which the existence of an obligation
or juristic act depends. A term of a contract, on
the other
hand, does not relate to the existence of an obligation but to its
nature.
[2]
There is no
contract between the parties pending the fulfilment of a suspensive
condition.
[3]
If a
suspensive condition is fulfilled after an unreasonable delay, there
is no binding obligation between the parties.
[4]
The difficulty is that in the matter before me, the relevant clause
neither makes reference to terms or conditions.
[25]
The
need for interpretation of contracts usually arises where the
language used to express agreement is vague or capable of bearing
more than one meaning. In this context interpretation indicates
the process by which the meaning of the express terms of
the contract
is determined.
[5]
[26]
In
principle then, in our law, the purpose of interpretation of a
contract is to ascertain the common intention of the contracting
parties. This has been referred to as the ‘golden rule’.
[6]
[27]
The first respondent contends that if it is
found that the clause is not capable of interpretation as it stands
(without incorporating
extrinsic evidence), the matter ought to be
referred to oral evidence or to trial. To my mind the adoption of
such a course is
likely to be an exercise in futility. I say so
because there are no material disputes of fact between the parties
that are
not capable of resolution on the papers. All the
relevant role players have deposed to affidavits to support the
applicant’s
case. The deponent to the founding and to the
replying affidavits (“Schroeder”) is the applicant’s
director
and the party who represented the applicant when the
agreement was entered into. His version is materially supported
by the
first respondent’s erstwhile financial director
(“Leonard”) and the first respondent’s former
managing
director (“Funnel”), both of whom were involved
in negotiations and the conclusion of the agreement.
[28]
On the other hand, the answering affidavit
delivered on the first respondent’s behalf has been deposed to
by one “Brent”
who was appointed as a director of the
respondent in July 2013 and has no personal knowledge of the events
surrounding the agreement
or the intention of the parties at the
time. His affidavit is little more than an attempt at legal
argument, best reserved
for counsel. The respondent’s
confirmatory affidavit, deposed to by one “Breetzke”, to
my mind takes the
matter no further.
[29]
The
first respondent is opposed to this court having regard to extrinsic
evidence in order to establish what clause 3.2 intends
to convey, and
contends for the application of the parol evidence rule. In
Union
Government v Vianini Pipes (Pty) Ltd
,
[7]
with regard to the parol evidence rule, the court held:
‘
[W]hen
a contract has been reduced to writing, the writing is, in general,
regarded as the exclusive memorial of the transaction
and in a suit
between the parties no evidence to prove its terms may be given save
the document or secondary evidence of its contents,
nor may the
contents of such document be contradicted, altered, added to or
varied by parol evidence …’
[8]
[30]
It
has been held however that although the document may well be
preferred to oral and/or other evidence, it may happen that the
document reflecting the agreement may have to be considered together
with other documentary evidence which in turn could be considered
subject to evidence of contemporaneous oral agreements.
[9]
[31]
The
strict application of this rule has been criticised in the past as
being formalistic, unnecessary and difficult, often resulting
in “the
blackest confusion”.
[10]
[32]
Van
der Merwe
[11]
expresses the
view that the difficulties experienced in applying the parol evidence
rule, and the criticism which has been levelled
as to the validity of
the theoretical basis advanced for it
,
raise
serious doubt about the need for its continued recognition in our
law. This is so because the rule limits the evidence
admissible
to determine the intention of the parties to written contracts –
an anomaly in a system of law that, in principle,
bases contractual
liability on “the golden rule” of the intention of the
parties. Van der Merwe is of the view
that in the final
analysis it is a matter of policy whether a legal system should
accept the rationale advanced for the rule, which
is that certainty
of transactions should be enhanced, that the number of disputes
should be decreased, and that the risk of perjury
should be
restricted. Applied on this basis, the parol evidence rule
constitutes a normative restriction on what has been
accepted as a
basic principle of our law of contract, namely, that as far as is
reasonably possible, effect must be given to the
subjective
intentions of the contracting parties. As it is, the technical
complexity of the rule undermines the very certainty
it seeks to
achieve, and the justification for its continued existence has become
doubtful.
[12]
I
respectfully agree.
[33]
The
present state of the law relating to the interpretation of contracts
has been succinctly summarised by the Supreme Court of
Appeal in the
judgment of Wallis JA.
[13]
The upshot of this judgment is that judges are encouraged to
guard against the temptation to substitute what they regard
as
reasonable, sensible and business-like agreements with results that
undermine the apparent purpose of the contract. In
attributing
meaning to the words used in a document, courts are invited to have
regard to the context provided by reading the particular
provisions
(in this case those set forth in clause 3.2) in the light of the
document as a whole and the circumstances attendant
upon its coming
into existence.
[34]
In my view the incorporation of relevant
and necessary extrinsic evidence to assist in the interpretation of
what the parties intended
leads, on a balance of probabilities, to
the same conclusion as that which I have come to, had I applied only
the plain meaning
approach. I say so for a number of reasons.
[35]
The agreement in question was signed on
behalf of the parties on 10 and 14 November 2006. It is common
cause that as early
as 26 June 2007 the applicant made enquiries from
the respondent (who in terms of clause 3.2 was obliged to assist the
applicant
to obtain consents and permission for development), about
the zoning of the property. Leonard, who was the respondent’s
financial director at the time, had witnessed the signing of the
agreement and had been actively involved on behalf of the respondent
in the negotiation and the conclusion of the agreement, responded to
the query. His reply (dated 26 June 2007) is significant
and it
is necessary to reproduce it in its entirety:
‘
Dear
Angela
Further to your query
regarding the “triangle”, we have established that this
piece, together with the land on which
the Da Gama factory is
located, is zoned as Agricultural, but with a Right of Use for
Industrial Purposes.
It is our understanding
that this Right of Use for Industrial Purposes clause also applies to
the triangle.
Please however note that
we are currently engaged in a legal matter with the Department of
Land Affairs regarding the transfer of
title of this triangle and the
land on which Da Gama is located. We have been advised that this
process could be resolved by the
Courts, by the latest October 2007,
and our view is that it may be counter productive to us securing
title should either yourselves
or ourselves now pursue any rezoning
of this land
without the said Court Orders being in place
(my
underlining).
Da Gama apologises for
the delays in this matter and we understand that these delays are
impacting your future business plans. We
trust that you understand
that we are in the hands of the law at present and assure you that we
are doing everything in our power
to meet our obligations to you in
terms of the lease and sale agreement in place.
We will keep you updated
regarding the progress with the legal matter.
Kind Regards
Graham’
[36]
I
pause to mention that the undisputed contents of this letter alone,
and assuming for the moment that the clause did contain a
suspensive
condition, would in any event support a compelling argument on the
applicant’s behalf that due to the first respondent’s
conduct, the condition is deemed to have been fulfilled. This,
referred to as the doctrine of fictional fulfilment of
a
condition, was formulated as follows in
Scott
v Poupard
[14]
:
‘
Where
a party to a contract, in breach of his duty, prevents the fulfilment
of a condition upon the happening of which he would
become bound in
obligation and does so with the intention of frustrating it, the
unfulfilled condition will be deemed to have been
fulfilled against
him.’
[15]
[37]
Clause 3.2 creates a peremptory obligation
or duty on the first respondent to assist the applicant to obtain the
necessary consents
and permission to build. In breach of this
duty, and in response to the applicant’s very first query in
this direction,
the first respondent reneged on this duty (apparently
for fear of compromising its negotiations with the Government which
deal
was only effectively closed seven years later).
[38]
Leonard, who deposed to an affidavit for
the applicant, in any event confirms that it was contemplated that
the applicant would
become obliged to perform its obligations in
terms of the agreement only after the respondent had obtained
transfer of the land
in its name. In my view the probabilities
are that this was indeed the position, particularly in that it
appears not to have
been envisaged at the time that the agreement was
entered into, or when this response was written, that there would be
a further
delay of three years, and not three months, before the
court order would be in place.
[39]
If clause 3.2 contained a suspensive
condition, and once it became clear that litigation was becoming
protracted, I would have expected
some action on the part of either
or both parties to vary the clause to comply with Leonard’s
view that the obtaining of
consents and permission with the
assistance of the respondent would be held in abeyance pending the
transfer of title into the
respondent’s name, or at the very
least, a court order to that effect. This however, did not
happen. On the contrary,
even after the court order had been
granted, the first respondent made no effort to at least accelerate
its rental income to the
next level by addressing the question of
consents and permission afresh. The inescapable inference to be
drawn from the first
respondent’s silence in the face of the
receipt of nominal rental is because the clause was not intended to
contain a suspensive
condition.
[40]
A further undisputed communication of
particular importance is the email dated 12 September 2014, sent by
Schroeder to Brent (who
had substituted Leonard as the respondent’s
financial director in 2013). It reads as follows:
‘
Hi
Ryan
Thank you for your mail.
As
discussed
(my underlining) the property
has now been transferred to da Gama and this will trigger the
transfer to us.
I have copied Ashley
Kretzman in on the mail so that he can get working on the transfer
for us.
Kindest regards
Kevin Schroeder’
[41]
Brent, in his answering affidavit, does not
dispute that this mail was sent. He is however silent on the
correctness thereof. I
have little doubt that if clause 3.2
contained a suspensive condition, he would have seized this
opportunity to remind Schroeder
that the “trigger” for
the transfer of the property to the applicant was not the transfer of
the property into the
respondent’s name, but the obtaining of
consents and permission by the applicant (with the respondent’s
assistance),
to build, and that this had not happened. Indeed,
it is not disputed by the respondent that, as at 22 September
2014,
there was still no talk of a suspensive condition that had not
been fulfilled. At best, all that was conveyed to the applicant
was that the respondent’s new shareholders appeared to have
been in the dark regarding the agreement and were in the process
of
“reviewing” it. The main thrust of this
communication appears to have been a complaint regarding the identity
of the conveyancer and not the fact of conveyancing.
[42]
On 1 October 2014 the applicant’s
attorneys addressed a letter to the respondent demanding that the
respondent takes the necessary
steps to transfer the land to it in
compliance with the terms of the agreement. The respondent’s
attorneys replied
on 9 October 2014. On the evidence
before me it is in this legal communication that the term “suspensive
condition”
is alluded to for the first time. It is also
abundantly clear from the contents of the letter that the concept
that clause
3.2 contained a suspensive condition which had not been
complied with had not been raised in compliance with the respondent’s
instructions and/or as a result of having obtained such instructions
from the role-players who had represented the respondent at
the time
that that agreement was entered into, but rather as a considered
legal opinion from the lawyers themselves. I am
not surprised.
[43]
It is clear from the affidavits of the
respondent’s former representatives who had been steeped in the
atmosphere of the agreement
negotiations and who had been working at
the very coalface of what had been agreed upon before, during and
after the agreement
had been entered into, that clause 3.2 was, at
all relevant times, intended at best to be a recording of the purpose
for which
the applicant intended using the premises, and with that in
mind, that the applicant (and not the first respondent) had assumed
the duty to ensure that the relevant formalities for development
purposes had been complied with and that the relevant consent
had
been granted for it to use the land for this intended purpose.
[44]
To elevate the recording to a condition
precedent for the sale of the property when the wording of the clause
does not say so, compounded
by the fact that the conduct of the first
respondent in particular, supports the contrary, and further
compounded by the fact that
the respondent’s own
representatives at the time do not support such an interpretation, to
my mind would result in a meaning
being given to the clause which is
unreasonable, insensible, unbusinesslike and out of context. In
the words of Sir Anthony
Mason CJ quoted with approval in
Endumeni
:
‘
Problems
of legal interpretation are not solved satisfactorily by ritual
incantations which emphasise the clarity of meaning which
words have
when viewed in isolation, divorced from their context. The
modern approach to interpretation insists that context
be considered
in the first instance,
especially
in the case of general words, and not merely at some later stage when
ambiguity might be thought to arise’.
[16]
(my emphasis.)
[45]
As I have mentioned, it has been stated on
the first respondent’s behalf that its approach to the
agreement is that it is
capable of interpretation from the words
therein contained without resorting to a consideration of the
intention of the parties
to the agreement and their conduct between
2006 and 2014. If this approach is a salutary one in these
circumstances, I have
some difficulty in understanding the approach
which was adopted by the first respondent’s attorneys at the
time when they
conveyed to the applicant’s representatives that
it was the respondent’s intention to review the agreement, not
with
respect to an unfulfilled suspensive condition, but “with
particular reference” to whether the entire agreement had
been
properly sanctioned by the first respondent. Indeed, it is the
attorneys who, having considered the agreement, make
reference for
the first time, to a suspensive condition which had not been
fulfilled by the applicant for an unreasonably lengthy
period of
time, resulting in the entire agreement simply falling away.
[46]
In my view it is more likely that the
respondent’s new representatives (who were not party to the
agreement and were taken
by surprise when the applicant sought to
enforce the terms thereof) were somewhat anxious to find a loophole
to resile from the
agreement, particularly in that the first
respondent had burdened the land forming the subject matter of the
agreement together
with additional property for the sum of R92,5
million.
[47]
Brent, during the course of making various
legal submissions on oath, has pointed out that what emerges from
clause 2.4.2 (the rental
escalation clause which I have already
referred to), is that the agreement contemplated that the commercial
premises which were
intended to be erected by the applicant were to
be erected during the course of the sub-lease and not only once
ownership of the
property had been transferred to the applicant.
This may have been the idea at the time, particularly if a
process had to
be followed before development could commence. An
idea however, is a far cry from a suspensive condition. If
clause
3.2 indeed contains a binding suspensive condition as
contended for by the first respondent, the first respondent itself is
unlikely
to have waived the so-called conditions contained therein,
in favour of maintaining happy relations with the erstwhile landlord,
which is exactly what the first respondent did without further ado.
[48]
For all these reasons I am of the view that
the applicant has succeeded in showing, on a balance of
probabilities, that it is entitled
to transfer of the land into its
name, and I accordingly make the following order:
ORDER:
1.
The first respondent is directed to
take all steps necessary to effect and register the transfer to the
applicant of Farm Number
2280 (in extent 7, 8986 hectares) situated
in the district of King William’s Town, Province of the Eastern
Cape and held
by the first respondent under deed of transfer number
T1853/2014 (“the land”).
2.
In the event of the failure of the
first respondent (within 30 days from the date of this order), to
sign the documentation necessary
to effect the transfer of the land
into the name of the applicant, the sheriff of this court is
authorised to sign the documentation
on the first respondent’s
behalf.
3.
Without derogating from the order in
paragraph 1:
3.1
the first respondent is directed to assist the applicant to the
extent necessary to obtain all
consents and the permission required
for the construction of commercial premises on the land;
3.2
the first respondent is directed to perform all acts necessary to
procure the cancellation of the mortgage
bond in favour of the second
respondent, registered over the land on 6 May 2014.
4.
The first respondent is directed to pay the costs of this
application.
I.T. STRETCH
Judge of the High
Court
28 August 2015
APPEARANCES:
For
the applicant:
I
Miltz SC
Instructed
by
Darryl
Ackerman Attorneys
Locally
represented by:
Gordon
McCune Attorney
King
William’s Town
For
the first respondent:
A
J Troskie SC
Instructed
by
Morris
Fuller Walden Williams Inc
Locally
represented by:
Smith
Tabata Inc
[1]
See
Pangbourne
Properties Ltd v Gill & Ramsden (Pty) Ltd
1996
(1) SA 1182
(A) at 1187 – 1188.
[2]
Resisto
Dairy v Auto Protection Insurance Co Ltd
1963
(1) SA 632
(A);
Design
and Planning Service v Kruger
1974
(1) SA 689
(T) at 695.
[3]
First
National Bank of SA Ltd v Lynn NO
1996
(2) SA 339 (A).
[4]
Dirk
Fourie Trust v Gerber
1986
(1) SA 763 (A)
[5]
See:
Van der Merwe, et al
Contract
General Principles
(2012)
4ed Juta, Cape Town at 263
[6]
Coopers
& Lybrand v Bryant
1995
(3) SA 761 (A) 768
[7]
1941
AD 43.
[8]
Supra
at
47.
[9]
See:
National
Board (Pretoria) (Pty) Ltd v Estate Swanepoel
1975
(3) SA 16
(A);
B&B
Hardware Distributors (Pty) Ltd v Administrator, Cape
1989
(1) SA 957 (A).
[10]
See
Zeffertt & Paizes
Parol
Evidence with particular reference to contract
1986
at 30 and 55.
[11]
Supra
at 152.
[12]
Supra
at 153.
[13]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
SCA at 603E-605B
[14]
1971
(2) SA 373 (A).
[15]
Supra
at
378H.
[16]
K
& S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd
[1985]
HLA 48
(1985) 157 BCLR 309
at 315.