REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number : 128479/23
(1) REPORTABLE : YES / NO
(2) OF INTEREST TO OTHER JUD
(3) RE VISED : YES /NO
5 Decemb er 2025 __ _
DATE
In the matter between:
BUSINESS PARTNERS LIMITED App licant/Plaintiff
and
LYNWOOD ROAD DEVELOPMENT (PTY) LTD First Responden t/Defendant
JAN HENDRIK DU RAAN Second Responden t/Defendant
BARBARA NOLA ERASMUS Third Responden t/Defendant
JUDGMENT
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JANSE VAN NIEUWENHUIZEN J
Introduction
[1] The applicant prays for an order granting it leave to amend its Particulars of
Claim. The parties will be referred to herein after as cited in the pleadings.
Particulars of Claim
[2] The plaintiff’s claim against the first defendant is based on three written
agreements, to wit a Loan agreement concluded on 11 November 2020; a
Royalty agreement also concluded on 11 November 2020 and an Addendum to
the Loan Agreement concluded on 11 December 2020.
[3] The second and third defendants are cited in their capacities as sureties for all
amounts owed by the first defendant to the plaintiff.
[4] The plaintiff alleges that the first defendant breached the agreements and claim
in respect of the loan agreement the full balance of the loan agreement still
owning and in terms of the Royalty agreement a royalty fee.
Proposed amendment
[5] The crux of the dispute between the parties in respect of the proposed
amendment is the fulfilment of clause 8.4.6 of the Loan Agreement. Clause 8.4.6
is a condition precedent and without the fulfilment of the clause, the Loan and
Royalty Agreements did not come into being and has no force and effect.
[6] The clause reads as follows:
“8.4 OTHER CONDITIONS PRECEDENT
The borrower shall also furnish Business Partners with:
8.4.6 Confirmation by the relevant conveyancer that he/she has confirmed with the
relevant Regional Land Claims Commissioner that no claim in terms of The
Restitution of Land Rights Act, 1994 has been lodged against any property that
is to be bonded in favour of Business Partners.”
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[7] It is common cause between the parties that land claims have been lodged
against the property. The plaintiff alleges that it has, in concluding the Addendum,
waived its right to rely on compliance with clause 8.4.6. The relevant portion of
the Addendum reads as follows:
“3. The Parties wish to amend conditions to the Loan Agreement.
4. The parties wish to record the change in writing”.
NOW THEREFORE IT IS AGREED AS FOLLOWS:
1. Loan Agreement
1.1 That the land claim on Portion 141 of the Farm the Willows 340 JR to be noted.”
[8] The waiver is pleaded as follows in the proposed amended particulars of claim:
“7.2 By entering into the addendum, Annexure “A3”, the Plaintiff to the extent
necessary and by agreement with the First Defendant, thereby elected to
proceed with the relevant Loan and Royalty Agreements notwithstanding non-
fulfilment of the condition contained in clause 8.4.6 of the loan agreement.”
“8.3 The parties, in terms of Annexure “A3”, had noted the pending land claim/s
on the property and elected to proceed with the Loan and Royalty Agreements.”
“9.1 In the alternative to paragraph 8.3 above, and on a proper interpretation of
Annexure “A3” , the Plaintiff by concluding the addendum had in its sole
discretion, without prejudice to its rights, waived in writing and in terms of
clause 35.2 of Annexure “A2”, recorded in paragraph 3.12 above, the right to
rely on the fulfilment of the condition found in clause 8.4.6 of Annexure “A1”,
as recorded in clause 1.1 of Annexure “A3”, signed by both Plaintiff and First
Defendant.
9.2 The condition found in the referred clause 8.4.6 was included in Annexure
“A1” for the sole benefit of Plaintiff, who was therefore entitled to waive the
condition as provided for in clause 35.2 of Annexure “A2”.”
10. In the further alternative and on a proper interpretation of the addendum to the
Loan and Royalty Agreements, Annexure “A3”, the parties by entering into
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the aforesaid addendum intended to and thereby revived the Loan and Royalty
Agreements.”
Objection
[9] The defendants maintain that the plaintiff’s proposed amendment does not
comply with the provisions of clause 35.2 of the Standard Terms and Conditions
of the Agreement. Clause 35.2 reads as follows:
“If the Borrower fails to fulfil any term or condition of this Agreement, Business Partners
may in its sole discretion, without prejudice to its rights, waive the right to rely on the
fulfilment of the term or condition.”
[10] The election to proceed with the agreements notwithstanding the non -
compliance with the condition as pleaded in paragraphs 7.2 and 8.3 supra does,
therefore, not constitute a waiver as contemplated in clause 35.2. Due to the fact
that the “waiver” of the non-compliance with the condition has been pleaded in
the alternative, it is not prudent to consider the relevant allegations in isolation.
[11] The allegations in the alternative contained in paragraphs 9.2 and 10 should also
be considered. Insofar as the proper interpretation of clause 1.1 of the Addendum
is concerned, the defendants maintain that a proper interpretation entails
attributing meaning to the word “noted”. “Noted” used in light of the ordinary rules
of grammar and syntax does not mean waiver but simply refer to the fact that the
existence of land claims has come to the attention of the plaintiff and the first
defendant. That should, a ccording to the defendants, be the end of the
interpretation exercise.
[12] In support of the aforesaid contention, the defendants rel y on the principles of
interpretation crystallised in Natal Joint Municipal Pension Fund v Endumeni
Municipality 2012 (4) SA 593 SCA at para [18]:
“The present state of the law can be expressed as follows. Interpretation is the process
of attributing meaning to the words used in a document, be it legislation, some other
statutory instrument, or contract, having regard to the context provided by readi ng the
statutory instrument, or contract, having regard to the context provided by readi ng the
particular provision or provisions in the light of the document as a whole and the
circumstances attendant upon its coming into existence. Whatever the nature of the
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document, consideration must be given to the language used in the light of the ordinary
rules of grammar and syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material known to those responsible for it s
production. Where more than one meaning is possible each possibility must be weighed
in the light of all these factors. The process is objective not subjective. A sensible
meaning is to be preferred to one that leads to insensible or unbusinesslike resul ts or
undermines the apparent purpose of the document. Judges must be alert to, and guard
against, the temptation to substitute what they regard as reasonable, sensible or
businesslike for the words actually used. To do so in regard to a statute or statuto ry
instrument is to cross the divide between interpretation and legislation. In a contractual
context it is to make a contract for the parties other than the one they in fact made”.
The ‘inevitable point of departure is the language of the provision itself’, read in context
and having regard to the purpose of the provision and the background to the preparation
and production of the document.” (Footnotes excluded)
[13] In the result, the defendants contend that the suspensive condition in clause
8.4.6 has not been fulfilled and neither the Loan Agreement nor the Royalty
Agreement came into effect. The amended particulars of claim, therefore, does
not disclose a cause of action and the amendment should be refused with costs.
Discussion
[14] I do not agree with the defendants’ interpretation of Endumeni. Endumeni is the
first in a line of authorities that changed the notion of strict adherence to the
words used in a contract to establish the intention of the parties. The
development in the interpretation of contracts has more recently been articulated
in Capitec Bank Holdings Ltd and another v Coral Lagoon Investments 194 (Pty)
Ltd and others 2022 (1) SA 100(SCA) at para [46], as follows:
Ltd and others 2022 (1) SA 100(SCA) at para [46], as follows:
“[46] ….. The Constitutional Court has rejected the idea of the plain meaning of the text
or its primacy, since words without context mean nothing, and context is everything. It
has given a wide remit to the admission of extrinsic evidence as to context and purpose
so as to interpret the meaning of a contract. Reasonable disagreements as to the
relevance of such evidence should favour admitting the evidence and the weight of the
evidence may then be considered',,_
[15] Without the benefit of evidence to establish the context and mean ing of clause
1.1 , it is not possible to determine w hat the parties intended in concluding the
Addendum . The defendants contention to the contrary cannot be upheld and the
objection stands to be dismissed w ith costs. The complexity of the matter justifies
counsel's fess on scale C.
Order
[16] The following order is granted:
1 . The applicant/plaintiff is granted leave to amend its particulars of claim
to read in accordance w ith the notice of amendment in terms of Rule
28(1) dated 6 December 2024, w ithin 10 days from date of this order.
2. The respondents/defendants are ordered to pay the costs of the
application. Counsel's fees on scale C.
DATE HEARD:
09 September 2025
DATE DELIVERED:
5 December 2025
APPEARANCES
JANSE VAN NIEUWENHUIZEN
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
1 Capitec Bank Ho ldings Ltd and another v Coral Lagoon Investments 194 (Pty) Ltd and others
2022 (1) SA 1 00(SCA ) at para [46]
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Counsel for the Applicant: Adv M.T Shepherd
Instructed by: Strydom Britz Mohulatsi Inc
Counsel for the Respondents: Adv T Strydom SC
Adv M Jacobs
Instructed by: Prinsloo Bekker Attorneys
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