South Africa: Western Cape High Court, Cape Town

IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No.: 8620/07

In the matter between:

BAREND JOHAN DREYER Plaintiff
and

HEIN LUBBE First Defendant

LOUIS JOHAN CABANO Second Defendant

HELDERKOM EIENDOMME CC Third Defendant

JUDGMENT DELIVERED THIS 23rd DAY OF MARCH 2010

KOEN AJ.

[1] This is an application for leave to appeal the judgment handed down in this matter on 18 February 2010. For the sake of convenience I propose to refer to the parties by their titles in the action.

[2] The outcome of this application hangs on the answer to two questions. Firstly, whether there are reasonable prospects of another Court finding that an orally agreed extension of time within which the suspensive condition contained in paragraph 12 of the agreement between the parties was to be fulfilled is valid and binding, notwithstanding the fact that the parties expressly agreed that "no addition to or variation of [the] Agreement shall be binding on any party hereto, unless reduced to writing and signed by all the parties or their duly authorized representatives." The second question is whether there are reasonable prospects of another Court concluding that on the agreed facts the plaintiff waived the benefit of the suspensive condition adverted to above.

[3] Counsel for the defendants contended that the terms of the agreement, which provided for an extension of time for fulfilment of the suspensive condition "with the consent of both parties", indicated that the parties had contemplated that an oral extension of such time would not be hit by the non-variation clause quoted from above. I think that to place this interpretation on these words used strains the meaning of the language used beyond breaking point. There is nothing at all to suggest that the parties did not intend that such a variation should be exempt from their agreed requirement that variations to the agreement should be reduced to writing and signed in order to be binding.

[4] Counsel for the defendants sought to persuade me that there was a reasonable prospect that another Court would find that the facts pleaded by the defendants in support of their contention that the plaintiff had waived his right to benefit from the suspensive condition justified that conclusion. In summary, these facts were the same as those relied upon to prove the oral agreement extending the time within which the suspensive condition was to be fulfilled. It was asserted, further, that the plaintiffs father, who was authorised in this regard by his son, told the third defendant that if a mortgage loan could not be obtained from ABSA Bank, then the plaintiff would apply to every other bank until a loan was granted, notwithstanding the provisions of the suspensive condition.

[5] A waiver in the context of this case is a unilateral abandonment by the plaintiff of the benefit of the suspensive condition. In this case the suspensive condition related to the obtaining of a loan secured by a mortgage bond. At best for the defendants the facts indicate that the plaintiff simply said that he would ask at every bank for a loan. If anything, this conduct - which is relied upon by the defendants to underpin the contention that the plaintiff waived the benefit of the suspensive condition - indicates the very opposite.

[6] For the above reasons I am compelled to conclude that there is no reasonable prospect of success on appeal. It follows that the application must be dismissed. I therefore make the following order:

1. The application for leave to appeal is dismissed.

2. The defendants are ordered to pay the costs of this application jointly and severally, the one paying, the others to be absolved.

S J KOEN AJ