THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 356/24

In the matter between:

TIGHT BUSINESS ENTERPRISES CC APPELLANT

and

PETRUS JOHANNES LORDAN N O FIRST RESPONDENT

THEODORUS LOUIS LORDAN N O SECOND RESPONDENT

CHARLES JAKOBUS PIETERSE N O THIRD RESPONDENT

Neutral citation: Tight Business Enterprise CC v Petrus Johannes Lordan NO &
Others (356/24) [2025] ZASCA 133 (17 September 2025)
Coram: MOCUMIE and KATHREE-SETILOANE JJA and TOLMAY, VALLY
and MODIBA AJJA
Heard: 16 May 2025
Delivered: 17 September 2025
Summary: Civil Procedure – special plea – Prescription Act 68 of 1969 – whether
prescription begins to run on the date of signing an agreement or on the date the
suspensive condition is fulfilled – suspensive condition suspended the enforceability
of the agreement – prescription only started running when the suspensive condition
was fulfilled.

2



ORDER


On appeal from: The Gauteng Division of the High Court, Pretoria (Yende AJ, with
Motha and Baqwa JJ concurring, sitting as court of appeal).
1 The appeal is upheld with costs, including the costs consequent upon the
employment of two counsel.
2 The order of the high court is set aside and substituted with the following order:
‘The special plea of prescription is dismissed with costs. Such costs to include the
costs of two counsel, where so employed.’
3 The matter is remitted to the high court to determine the merits.


JUDGMENT


Modiba AJA (Mocumie and Kathree-Setiloane JJA and Tolmay and Vally AJJA
concurring):

[1] The question that arises in this appeal is whether prescription begins to run on
the date of signing an agreement or on the date on which a suspensive condition is
fulfilled. It arose in an appeal against the judgment of the North Gauteng High Court,
Pretoria (the full court), which is before us with the special leave of this Court. Before
the full court, the respondents, in their capacity as the jointly appointed trustees of the
Johan Lordan Trust (the trustees), had successfully appealed against the judgment and
order of the same division of the high court , per Lukhaimane AJ , (the high court) ,
which had dismissed their special plea of prescription with costs. The trustees oppose
this appeal.

3


[2] The factual background to this appeal is briefly as follows. On 5 January 2009,
the Johan Lordan Trust (the trust), as seller, represented by Mr Johannes Hermanus
Cronje Lordan in his capacity as the duly authorised trustee, and T ight Business
Enterprises (TBE) as the buyer , concluded a written agreement for the sale of
immovable property (the agreement). Clause 18 of the agreement made provision for
a suspensive condition, requiring that by 30 June 2009, the Minister of Agriculture
(the Minister) consent to the property being transferred separately from an adjacent
property. TBE alleged that such consent was obtained on 4 June 2009. In the
alternative, it p leaded that the consent had been granted when the agreement was
signed. TBE further alleged that the trust did not fulfil its obligations in terms of the
agreement. As a result, on 6 March 2012, it instituted a claim for specific performance
against the trust.

[3] The trustees raised a special plea of prescription, asserting that the agreement
was subject to a three-year prescription period in terms of s 11(d) of the Prescription
Act 68 of 1969 (Prescription Act); the prescription period began running on the date
the agreement was signed; the three -year period expired on 4 January 2012 .
Consequently, when TBE served summons on the trustees, its claims arising from the
agreement had prescribed. TBE maintained that prescription only started running
when the suspens ive condition was fulfilled on 4 June 2009. Therefore, it issued
summons well within the prescription period.

[4] The high court determined the trustees ’ special plea on the pleadings without
the parties leading evidence on the merits . It rejected the trustees ’ special plea and
found that prescription only commenced to run when the suspensive condition was
fulfilled.

[5] On appeal, the full court overturned this finding and ruled that prescription
commenced running on the date the agreement was concluded . Therefore, TBE’s

commenced running on the date the agreement was concluded . Therefore, TBE’s
claim for specific performance had prescribed. Before the full court, the trustees had

4


contended that the high court erred in not finding that, in law, the parties’ rights flow
from, relate to, and are deemed to have been in force from the date the agreement was
signed, ex tunc (from the date of signature). As a result, the trustees contended, the
performance that TBE claimed, was deemed to have fallen due on the date the
agreement was signed; all rights flowing from the agreement, being unconditional,
were enforceable from that date; and TBE’s claim, had prescribed. TBE contended
before the full court that the trustees’ special plea was untenable because the
suspensive condition was only fulfilled on 4 June 2009 , and therefore prescription
began to run from that date.

[6] In this Court, TBE, relying on B B S Empangeni v Phoenix Industrial Park
(Pty) Ltd 1, contended that the full court confused the date when the debt arose
(signature date) with the date when it became due (date that the suspensive condition
was fulfilled), as highlighted in List v Jungers2 and Trinity Asset Management (Pty)
Ltd v Grindstone Investments (Trinity Asset Management)3. As a result of this error,
it found that the agreement prescribed three years after it was signed.

[7] The t rustees contended that in terms of s 12(1) of the Prescription Act,
prescription begins to run upon signature of the agreement and not upon fulfilment of
the suspensive condition, and accordingly, TBE’s claim had prescribed. The trustees
maintained that the full court was correct in overturning the finding of the high court.
The trustees further argued that on TBE’s own version, as pleaded in the alternative,
namely that the suspensive condition was superfluous to the agreement as the
ministerial consent had been granted when the agreement was signed, it meant that
the debt arising from the agreement was due on the date of the signature , and the
running of prescription had been triggered.


1 B B S Empangeni v Phoenix Industrial Park [2012] ZASCA 33; 2012 JDR 0501 (SCA) paras 26-27.

1 B B S Empangeni v Phoenix Industrial Park [2012] ZASCA 33; 2012 JDR 0501 (SCA) paras 26-27.
2 List v Jungers 1979 (3) SA 106 (A) at 121B-H.
3 Trinity Asset Management (Pty) Ltd v Grindstone Investments 132 (Pty) Ltd [2017] ZACC 32; 2018 (1) SA 94 (CC);
2017 (12) BCLR 1562 (CC) para 100.

5


[8] The general principles of the law of contract relevant to the determination of
this matter can be summarised as follows. It is a trite principle that a contractual term
imposing a condition in an agreement regulates an uncertain future event upon which
either the commencement of the duty to perform or the validity of the agreement is
dependent. A suspensive condition suspends the right to performance or duty to
perform pending the occurrence or non -occurrence of a future event specified in an
agreement. Pending the fulfilment of the condition, the parties to the agreement are
woven into a contractual relationship. One of the consequences of this relationship is
that neither party can withdraw from the agreement, and that they owe each other the
duty to perform and are entitled to claim performance from the other party.4

[9] Upon fulfilment of the suspensive condition, the parties are entitled to
performance and, as a corollary duty , obliged to perform. Until then, performance
may not be claimed. If the suspensive condition is not fulfilled, the agreement may be
terminated, and neither party has to perform. The offending party may be liable to the
innocent party for breaching the agreement, which may include the return of anything
already performed and/or contractual damages. The parties provide for permutations
of their choice in the agreement.5

[10] In Corondimas v Badat (Corondimas)6, this Court deviated from these general
principles of contract and formulated what became known as the Corondimas
principle. It held that:
‘[W]hen a contract of sale is subject to a true suspensive condition, there exists no contract of sale
unless and until the condition is fulfilled . . . Until that moment, in the case of a sale subject to a
true suspensive condition . . . it is entirely uncertain whether or not a contract of sale will come
into existence at some future time.’7 (Emphasis added).

into existence at some future time.’7 (Emphasis added).

4 H Schulze et al General Principles of Commercial Law (2015) 8th ed at 103. See also G B Bradfield (R H Christie
original text) Christie’s The Law of Contract in South Africa (2011) 8th ed at 176-177 and authorities cited.
5 Ibid.
6 Corondimas v Badat 1946 AD 548.
7 Ibid at 551.

6


The above principle remains good law as Corondimas has not been overruled. Nor
has there been any suggestion by the trustees that it should be overruled in this matter.
To the contrary, it has been applied in a number of cases in this Court and the
Constitutional Court.8

[11] When determining the effect of an agreement subject to a suspensive condition,
a court is primarily engaging in an interpretative exercise, and the general approach
to interpreting text which requires the consideration of the text, its purpose and
context, has to be employed. 9, In University of Johannesburg v Auckland Park
Theological Seminary and Another10, held that:
‘. . . [w] hen a court determines the nature of the parties’ rights and obligations in a contract, it is
involved in an exercise of contractual interpretation. It follows then , that the determination of
whether rights in a contract are delectus personae is always a matter of contractual interpretation.
That means that the inquiry must adhere to the strictures of the now settled approach to the
interpretation of contracts.’

[13] Clause 18 of the agreement provides:
‘That permission for the transfer of the above -mentioned property separately from Port ion … of
Farm …shall be granted by the Minister of [A]griculture not later than 30 June 2000.
That the PURCHASER will ensure that the necessary permission is obtained and will bear the cost
in this regard.’

[14] No controversy arises regarding the ordinary meaning of the text in clause 18.
The purpose of clause 18 is to ensure that the necessary ministerial consent is obtained

8Rein NO v Fleischer NO and Others 1984 (4) SA 863 (A) at 866; Thorpe and Another v BOE Bank Ltd. and Another
2006 (3) SA 427 (SCA) para 12; Rockbreakers and Parts (Pty) Ltd v Rolag Property Trading (Pty) Ltd [2009] ZASCA
102; 2010 (2) SA 400 (SCA); [2010] 1 All SA 291 (SCA) para 14; Paradyskloof Golf Estate (Pty) Ltd v Municipality

of Stellenbosch [2010] ZASCA 92; 2011 (2) SA 525; [2010] 4 All SA 591 (SCA) para 17; Diggers Development v City
of Matlosana Pty (Ltd) [2011] ZASCA 247; 2011 JDR 1671 (SCA); [2012] (1) All SA (1) 428 (SCA) paras 23 -29 and
Swart v Starbuck and Others 2017 (5) SA 370 (CC); 2017 (5) SA 370 (CC); 2017 (10) BCLR 1325 (CC) para 31.
9 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA) para 18-
19.
10 University of Johannesburg v Auckland Park Theological Seminary and Another [2021] ZACC 13; 2021 (6) SA 1
(CC); 2021 (8) BCLR 807 (CC) para 63.

7


by 30 June 2000 for the transfer of the property as a divided portion. It placed the
obligation to obtain the consent on TBE.

[15] Whether the agreement is valid from the date of signature or is invalidated by
the non-fulfilment of the suspensive condition as contended by the trustees, is a
question to be determined at the trial , as it goes to the merits of TBE’s claim for
specific performance. The temptation to conflate th is question with the particular
question that arises in this appeal should be resisted. Th erefore, the Corondimas
principle, the controversies around it, and the plethora of cases relied on by the parties
where its contours detained courts, are of limited value in determining the succinct
question that arises in this appeal.11

[16] The question that arises in this appeal highlights the importance of not
conflating the date of signature of an agreement , on the one hand, with the date
prescription commences to run , on the other hand . This distinction is particularly
important in a case such as this, where there is a legal basis for the conclusion that the
date of signature has no bearing on prescription. In Trinity Asset Management, the
Constitutional Court held otherwise with reference to an agreement where the debt
was due on demand. 12 But, for reasons that follow, that conclusion is unsustainable
on the present facts.

[17] Section 11(d) of the Prescription Act makes provision for a general prescription
period of three years. In terms of s 12(1) of the Prescription Act, prescription
commences to run as soon as the debt is due. Until then, although an agreement may
have been signed, creating a binding contractual duty to perform and a corollary right
to performance, prescription may not commence running if the debt is not yet due.


11 The various critiques of Corondimas are discussed, but the principle is confirmed in Geue and Another v Van Der
Lith and Another 2004 (3) SA 333 (SCA); [2003] 4 All SA 553 (SCA) paras 7-13.
12 Fn 3 paras 161-163.

8


[18] In Van Deventer v Ivory Sun Trading 77 (Pty) Ltd (Van Deventer)13, this
Court referred to its judgment in Umgeni Water v Mshengu14 where the principles
for determining when a debt is due were clarified as follows:
‘. . . In its ordinary meaning, a debt is due when it is immediately claimable by the creditor and, as
its correlative, it is immediately payable by the debtor. Stated another way, the debt must be one in
respect of which the debtor is under an obligation to pay immediately. … A debt can only be said
to be claimable immediately if a creditor has the right to institute an action for its recovery’ .15
(Citations excluded)

[19] In Tuckers Land and Development Corporation v Strydom (Tuckers Land)16,
this Court held that the legal nature of an agreement subject to a suspensive condition
is that no obligations can be enforced until the condition is met. Upon fulfilment of
the suspensive condition, the agreement is perfected. The trustees’ reliance on the line
of cases that espouse the principle that the agreement is valid from the date of
signature is therefore misplaced. Even if the agreement is valid from the date of
signature, because of the suspensive condition, the agreement is not enforceable from
the date of signature. It is only enforceable from the date the suspensive condition is
fulfilled. TBE obtained the ministerial consent on 4 June 2009, thereby perfecting the
agreement. Before 4 June 2009, TBE could not enforce its rights in terms of the
agreement. The fact that the agreement was valid from the date of signature is
therefore of no moment. The debt did not fall due then because TBE could not enforce
it.

[20] The trustees' argument that the agreement became effective from
5 January 2009 due to the ex tunc principle is also inconsistent with the principle in
ABSA Bank Ltd v Sweet & others,17 where the court concluded that the ex tunc effect

13 Van Deventer v Ivory Sun Trading 77 (Pty) Ltd 2015 [2014] ZASCA 227; [2014] ZASCA 169; (3) SA 532 (SCA);

[2015] 1 All SA 55 (SCA).
14 Umgeni Water v Mshengu [2009] ZASCA 148; (2010) 31 ILJ 88 (SCA) [2010] 2 All SA 505 (SCA) paras 5 – 6.
15 Van Deventer fn 13 para 21.
16 Tuckers Land and Development Corporation v Strydom 1984 (1) SA 1 (A) as applied in Thorpe and Another NO v
BOE Bank LTD and Another 2006 (3) SA 427 (SCA) para - 12.
17 ABSA Bank Ltd v Sweet & others 1993 (1) SA 318 (C) at 323.

9


is a contractual fiction to regulate mutual rights between the parties. Therefore, the
principle does not override the prescription rules under the Prescription Act and
cannot render a debt due when its enforceability is suspended by a suspensive
condition.

[21] The principles of prescription, as governed by the Prescription Act, apply to
agreements containing suspensive conditions. Prescription only began to run once the
suspensive condition was fulfilled, as this was when TBE could institute a claim for
specific performance. The date on which TBE issued the summons falls within the
prescribed three-year prescription period. The fact that, on TBE’s alternative case as
pleaded, this date coincides with the signature date is irrelevant, as it succeeds on its
main case as pleaded.

[22] It follows that the appeal succeeds, and the following order is issued.
1 The appeal is upheld with costs, including the costs consequent upon the
employment of two counsel.
2 The order of the high court is set aside and substituted with the following order:
‘The special plea of prescription is dismissed with costs. Such costs to include the
costs of two counsel, where so employed.’
3 The matter is remitted to the high court to determine the merits.


______________________
L T MODIBA
ACTING JUDGE OF APPEAL

10


Appearances:

Counsel for the appellant: B P Geach SC with E Janse Van Rensburg
Instructed by: S J Van Den Berg Attorneys, Pretoria
Symington De Kok Attorneys, Bloemfontein

Counsel for the respondents: J Hershensohn SC with J Stroebel
Instructed by: Romanos Attorneys, Pretoria
Webbers Attorney, Bloemfontein.