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De Villiers NO and others v BOE Bank Limited (2) (477/2002) [2003] ZASCA 102 (26 September 2003)

.RTF of original document

THE SUPREME COURT OF APPEAL

OF SOUTH AFRICA

REPORTABLE

CASE NO: 477/2002

In the matter between :

MICHAEL DE VILLIERS N.O. First Appellant

BRIAN BASIL NEL N.O. Second Appellant

and

BOE BANK LIMITED Respondent

_________________________________________________________________________

Before: HOWIE P, STREICHER, NAVSA, HEHER JJA & VAN HEERDEN AJA

Heard: 29 AUGUST 2003

Delivered: 26 SEPTEMBER 2003

_________________________________________________________________________

J U D G M E N T

_________________________________________________________________________

STREICHER JA

STREICHER JA:

[1] I have read the judgments by Navsa JA and Heher JA. I agree with the judgment of Navsa JA to which I would like to add the following comments in respect of the finding by Heher JA that the suspensive condition in clause 2.1.1 of the agreements of loan was fulfilled.

The clause reads as follows:

‘2.1 This agreement is subject to the fulfilment of the following suspensive conditions to the satisfaction of BOE by not later than 17 June 1999.

1. Final unconditional duly completed agreements satisfactory to BOE signed by all parties thereto recording the purchase and sale of the business from Aspen . . . to [Intramed].’

(‘The suspensive condition.’)

[2] It is common cause that no such agreement was ever concluded. It follows logically that the suspensive condition could not have been fulfilled.

[3] The respondent alleged in its particulars of claim that the suspensive conditions referred to in clause 2.1 of each of the agreements of loan were fulfilled alternatively waived by it. However, in its reply to a request for particulars for trial it replied that the suspensive condition in clause 2.1.1 of each of the loan agreements was not fulfilled. During his cross-examination of Cooper counsel for the appellants stated that it was common cause that the condition had not been fulfilled. The statement was repeated in the appellants’ heads of argument. Counsel for the respondent also stated in their heads of argument that it was common cause that the suspensive condition was not fulfilled in that there were no ‘final unconditional duly completed agreements . . . recording the purchase and sale of the business from Aspen . . . to [Intramed].’

[4] In the circumstances it is not open to this court to find that the suspensive conditions had in fact been fulfilled and to fill factual gaps in the evidence by way of inferences drawn as a matter of probability from statements made by counsel for the respondent in his opening address, the evidence of the respondent’s witnesses and the ‘failure’ of the appellants’ counsel to follow what may be considered to be an obvious line of attack if the common cause facts are ignored.

[5] In any event, the evidence was not to the effect that the suspensive condition had been fulfilled. Cooper testified that Mr Whittaker told him that he had telephonically advised Mr Hiscock that the respondent ‘was now satisfied that the agreements and the transaction were completed’. Cooper understood him to mean that the deal was finalised but did not know whether the suspensive conditions had been fulfilled. It was at this stage that it was put to him by counsel for the appellants that it was common cause that the condition had not been fulfilled. He did not dispute the statement and counsel for the respondent did not object thereto.

[6] In the light of the fact that there was no agreement between Aspen and Intramed, Whittaker could not have intended to say that he was satisfied that the suspensive conditions had been fulfilled, he could only have meant to say that fulfilment of the condition was no longer necessary as far as the respondent was concerned. That is to say he could only have meant to say that the respondent had waived fulfilment of the suspensive condition.

[7] But, even if Whittaker had in terms told Hiscock that the respondent was satisfied that the suspensive condition had been fulfilled and that the transaction was for that reason complete he would, in the light of the fact that there was no agreement between Aspen and Intramed, in fact have been telling him that the respondent was waiving compliance with the condition.

[8] I, therefore, disagree with the finding of Heher JA that the suspensive condition was fulfilled.

_________________

STREICHER JA

HOWIE P)

NAVSA JA) CONCUR

VAN HEERDEN AJA)