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days of signature of the agreement, obtain a mortgage bond to secure the
purchase price. However, dur ing the 45 day period, the parties, “consensually”
waived the suspensive clause when they agreed the purchase price would be
paid partly in cash and partly through a bond. The defendant paid over R3.25
million, toward the purchase price of R5 million and the plaintiff, transferred the
property to the defendant, who became the owner. This arrangement was never
recorded. The transaction is regulated by the provisions of s2(1) of the Alienation
of Land Act 68 of 1981 and the contract.
The issue
Does a waiver alter or impact on the terms of payment in the agreement between
the parties and is therefore a contravention of the non -variation clause in the
agreement.
[2] I shall refer to the parties as they are in the action proceedings to avoid confusion.
The p laintiff issued a summons for recovery of the “balance of the purchase
price”, the defendant contends that the particulars of claim are excipiable, they
fail to disclose a cause of action and therefor plaintiff must be ordered to amend
its particulars of c laim, within 20 days failing which the action stands to be
dismissed.
[3] The defendant argued that the price and performance are material terms and
since the waiver was not reduced to writing the agreement is unenforceable.
Advocate Carstens submitted tha t the plaintiff should have applied for a
rectification of the agreement after the change. On the alternative claim on
enrichment, the defendant argued the plaintiff seeks to enforce an unenforceable
agreement through an enrichment action. Mr Carstens su bmitted that the plaintiff
ought to have brought its claim through one of the condictiones, however
irrespective of which one it pursues, the principle in our law is that the plaintiff
can only claim for restoration of property unless if the defendant is u nable to
restore the property . A plaintiff may only claim for payment of monies if he can
demonstrate that the property cannot be restored. The court was referred to the
judgment in Melamed and Another v BP Southern Africa (Pty) Ltd .
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[4] It was further ar gued that s28 of the Alienation of Land Act prescribes what a
party may do if there was performance on a failed agreement, the plaintiff should
have asked for restoration of the property. Mr Carstens proffered that in the
enrichment action the plaintiff failed to plead that the defendant is unable to
restore the property, it is material, and the exception must be upheld. Counsel
submitted that the plaintiff must be afforded 20 days to amend, failing which its
claim is set aside. Counsel submitted that t he costs ought to be granted on a
scale B.
[5] Advocate R Shepstone appeared for the respondent/plaintiff and contended that
the facts are clear the property was sold and transferred, to the defendant who
has paid only R3.25 million toward a purchase price of R5 million. The plaintiff’s
claim is for specific performance in terms of the contract, and in the alternative,
the plaintiff claims in terms of an enrichment action, both claims are good in law.
Counsel argued that the waiver of the suspensive conditio n must be properly
ventilated at trial. He referred the court to the judgment in Phoenix Salt Industries
(Pty) Ltd v The Lubavitch Foundation of Southern Africa1 , where the court held
that the surrounding circumstances, the conduct of parties and witness accounts
are important to determining the outcome.
[6] It was submitted that the waiver is a voluntary giving up of a right in an agreement
and does not alter the payment obligations in a written agreement. A waiver of
the suspensive condition cannot be de termined in an exception as evidence will
have to led regarding the circumstances that led to the change. The seller
waived a portion of the security provided by the purchaser, this cannot be view
as a variation, a factual inquiry is necessary.
[7] Furthermore, it was argued that the alternative claim for unjust enrichment is
good in law, if one has regard to the part payment made and the transfer of the
property to the purchaser. He submitted that the plaintiff made the necessary
allegations and r eminded the court that the property was transferred, the plaintiff
is impoverished and contended that the party has an election to claim return of
the property in terms of the rei vindicatio or the amount of the enrichment, the
1 [2024] ZASCA 107 (3 July 2024)
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amount being a lesser to the plaintiff’s impoverishment o r the defendant’s
enrichment. Counsel submitted that the necessary allegations have been made
and that the exceptions must be dismissed the defendant must file his plea and
the matter must proceed to trial when oral evidence can be led on the issue of a
waiver and its impact on the contract between the parties having regard to the
variation clause.
JUDGMENT
[8] In deciding an exception the court must accept all allegations of fact made in the
particulars of claim as true; may not have regard to any other extraneous facts
or documents , and may uphold the exception only when the excipient has
satisfied the court that cause of action or conclusion of law in the pleading cannot
be supported by every interpretation that can be put on the facts. The purpose
of an exception is to protect litigants against claims that are bad in law… it is a
useful procedural tool to weed out bad claims at an early stage, but an overly
technical approach must be avoided .2
[9] When an exception is upheld as t o a cause of action it is the end of the matter
for a plaintiff. In casu the plaintiff argues that the suspensive condition was in
fact a security which the plaintiff held, however the plaintiff by consensual
agreement with the defendant, voluntarily gave up this security. The plaintiff
accepted part payment, transferred the property, whereupon the defendant
became the owner thereof.
[10] The test for an exception is whether the pleading can sustain a cause of action
on any reasonable interpretation of the fac ts alleged. The excipient bears the
onus to demonstrate that the pleading cannot sustain a cause of action on any
interpretation. The waiver/ variation was not in writing, there are no reasons for
the change regarding the security for the sale before me and in my view the
information is germane to the determination of the dispute between the parties.
The strong arguments presented to this court proves that the complete facts are
not before this court for determination at this stage of the proceedings. The
intention of the parties can only be elicited through oral evidence, and I am of the
2 2019 (2) SA 37 (CC ) at para [15]
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Date of Hearing: 10 February 2025
Date of Judgment: 12 May 2025
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Appearances:
For Plaintiff : Advocate Carstens Instructed by:
GJ Britz Attorneys
For Defendant : Advocate R Shepstone Instructed by:
Eversheds Sutherland SA Inc
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