D J Development CC and Others v Arnold (491/92) [1993] ZASCA 109 (6 September 1993)

D J Development CC and Others v Arnold (491/92) [1993] ZASCA 109 (6 September 1993)

The Supreme Court of Appeal held that although the reference to annexure 'E' in clause 3.12 was unenforceable and void ab initio due to the non-existence of the specified documentation, the residual provisions of clause 3.12 were sufficiently certain and enforceable. The corporation was obliged to perform the required infrastructure work in a proper and acceptable manner according to specifications approved by the relevant authorities. The parties knowingly contracted without agreement on the missing annexure, and their conduct demonstrated an intention to be bound by the remaining terms. Even if HH1 were invalid, the parties' subsequent conduct established a tacit or tacitly supplemented...

Citation
[1993] ZASCA 109
Parties
Appellant: D J Development CC; Appellant: D G Williams-Jones; Appellant: J P Van Bergen; Respondent: Neil Andrew Arnold
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
6 September 1993
Case Number
491/92
Procedural Posture
Civil Appeal / Appeal From Trial Court Judgment
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Van Heerden, Smalberger, Howie
Legal Topics
Contract Formation, Enforceability of Contract Terms, Tacit Contract, Suretyship Liability
Commercial and Corporate Civil Procedure Contract Formation Enforceability of Contract Terms Tacit Contract Suretyship Liability

Case Brief

Summary, issues, holding and outcome

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Parties

D J Development CC

Appellant

D G Williams-Jones

Appellant

J P Van Bergen

Appellant

Neil Andrew Arnold

Respondent

Procedural Posture

Civil Appeal / Appeal From Trial Court Judgment

Legal Issues

  1. 1 Whether the written agreement (HH1) constituted a binding and enforceable contract despite the absence of annexure 'E'.
  2. 2 Whether the obligations under clause 3.12 of HH1 were sufficiently certain and enforceable.
  3. 3 Whether the parties tacitly or orally supplemented the contract after signature of HH1.

Ratio Decidendi

The Supreme Court of Appeal held that although the reference to annexure 'E' in clause 3.12 was unenforceable and void ab initio due to the non-existence of the specified documentation, the residual provisions of clause 3.12 were sufficiently certain and enforceable. The corporation was obliged to perform the required infrastructure work in a proper and acceptable manner according to specifications approved by the relevant authorities. The parties knowingly contracted without agreement on the missing annexure, and their conduct demonstrated an intention to be bound by the remaining terms. Even if HH1 were invalid, the parties' subsequent conduct established a tacit or tacitly supplemented...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed.
  • The appellants are ordered to pay the costs of the appeal, including the costs of two counsel.