Botha v Uniqon Wonings (Pty) Ltd (97510/16) [2021] ZAGPPHC 676 (13 October 2021)

Botha v Uniqon Wonings (Pty) Ltd (97510/16) [2021] ZAGPPHC 676 (13 October 2021)

The court found that the proposed tacit term does not inherently conflict with the non-variation clause of the agreement. Clause 11 does not expressly preclude reliance on a tacit term, nor does it state that neither party is obliged to sign an amended Schedule B. The court distinguished between the obligation to execute the addendum and the rights and obligations arising after execution. The wording of clause 3 and clause 11 supports the possibility of implying the tacit term sought by the applicant. The court held that it need only be satisfied that the term can be implied, not that it must be implied, and found that the interests of justice support granting the amendment. Accordingly,...

Citation
[2021] ZAGPPHC 676
Parties
Applicant: Martinus Theunis Steyn Botha; Respondent: Uniqon Wonings (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
13 October 2021
Case Number
97510/16
Procedural Posture
Amendment Application / Application for Leave to Amend Particulars of Claim
Outcome
Application for leave to amend particulars of claim granted; applicant to bear costs.
Judges
Sawma
Legal Topics
Amendment of Pleadings, Tacit Terms, Non Variation Clause, Contractual Obligations
Civil Procedure Commercial and Corporate Amendment of Pleadings Tacit Terms Non Variation Clause Contractual Obligations

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 8 Party arguments 2
Sign in to unlock

Parties

Martinus Theunis Steyn Botha

Applicant

Uniqon Wonings (Pty) Ltd

Respondent

Procedural Posture

Amendment Application / Application for Leave to Amend Particulars of Claim

Legal Issues

  1. 1 Whether the applicant should be granted leave to amend his particulars of claim to include a tacit term obliging both parties to add and sign new projects in Schedule B.
  2. 2 Whether the proposed amendment would render the particulars of claim excipiable due to conflict with the non-variation clause.
  3. 3 Whether a tacit term can be implied into the agreement without violating its express terms.

Ratio Decidendi

The court found that the proposed tacit term does not inherently conflict with the non-variation clause of the agreement. Clause 11 does not expressly preclude reliance on a tacit term, nor does it state that neither party is obliged to sign an amended Schedule B. The court distinguished between the obligation to execute the addendum and the rights and obligations arising after execution. The wording of clause 3 and clause 11 supports the possibility of implying the tacit term sought by the applicant. The court held that it need only be satisfied that the term can be implied, not that it must be implied, and found that the interests of justice support granting the amendment. Accordingly,...

Court Disposition

Application for leave to amend particulars of claim granted; applicant to bear costs.

Orders

  • The applicant is granted leave to amend his particulars of claim by inserting the proposed paragraph 8.4A and as contemplated in the notice of intention to amend dated 29 October 2019.
  • The applicant is granted leave to file amended pages containing the proposed amendments within five days from the date of this order.