Buffet Investments Services (Pty) Ltd and Another v Band and Another (7517/2008) [2009] ZAKZDHC 38 (5 May 2009)

Buffet Investments Services (Pty) Ltd and Another v Band and Another (7517/2008) [2009] ZAKZDHC 38 (5 May 2009)

The court held that while non-variation clauses generally preclude informal variations or cancellations of contracts, an oral waiver may be effectual if the right is solely for the benefit of the waiving party. In this case, the Plaintiffs, with full knowledge of their rights, entered into an oral compromise agreement that varied the written agreements by reducing the payments due, delaying payment, and providing different security. This constituted a waiver of their rights under the written agreements. Therefore, the Defendants' plea, which relies on the oral compromise, is not excipiable, and the Plaintiffs' exception is dismissed.

Citation
[2009] ZAKZDHC 38
Parties
Plaintiff: Buffet Investments Services (Pty) Ltd; Plaintiff: Friedshelf 783 (Pty) Ltd; Defendant: Darrel Band; Defendant: Luhdo Properties CC
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
5 May 2009
Case Number
7517/2008
Procedural Posture
Civil Procedure / Exception to Plea
Outcome
Exception to the Defendants' plea is dismissed with costs.
Judges
Mokgohloa
Legal Topics
Non Variation Clause, Oral Compromise, Waiver of Rights, Contract Variation
Civil Procedure Commercial and Corporate Non Variation Clause Oral Compromise Waiver of Rights Contract Variation

Case Brief

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Parties

Buffet Investments Services (Pty) Ltd

Plaintiff

Friedshelf 783 (Pty) Ltd

Plaintiff

Darrel Band

Defendant

Luhdo Properties CC

Defendant

Procedural Posture

Civil Procedure / Exception to Plea

Legal Issues

  1. 1 Whether the Defendants' plea is excipiable for lacking necessary averments to sustain a defence.
  2. 2 Whether an oral compromise agreement is precluded by non-variation clauses in the written agreements.
  3. 3 Whether the Plaintiffs waived their rights under the written agreements by entering into the oral compromise.

Ratio Decidendi

The court held that while non-variation clauses generally preclude informal variations or cancellations of contracts, an oral waiver may be effectual if the right is solely for the benefit of the waiving party. In this case, the Plaintiffs, with full knowledge of their rights, entered into an oral compromise agreement that varied the written agreements by reducing the payments due, delaying payment, and providing different security. This constituted a waiver of their rights under the written agreements. Therefore, the Defendants' plea, which relies on the oral compromise, is not excipiable, and the Plaintiffs' exception is dismissed.

Court Disposition

Exception to the Defendants' plea is dismissed with costs.

Orders

  • The exception to the Defendants' plea is dismissed with costs.