Dreyer v Lubbe and Others (8620/07) [2010] ZAWCHC 78 (23 March 2010)

Dreyer v Lubbe and Others (8620/07) [2010] ZAWCHC 78 (23 March 2010)

The court found that the language of the non-variation clause was clear and unambiguous, requiring any variation to be in writing and signed by all parties. There was no indication that the parties intended to exempt oral extensions from this requirement. The facts relied upon by the defendants to prove waiver did not support a finding that the plaintiff had abandoned the benefit of the suspensive condition. Instead, the plaintiff's conduct demonstrated an attempt to fulfil the condition, not a waiver. Consequently, there were no reasonable prospects of success on appeal.

Citation
[2010] ZAWCHC 78
Parties
Plaintiff: Barend Johan Dreyer; Defendant: Hein Lubbe; Defendant: Louis Johan Cabano; Defendant: Helderkom Eiendomme CC
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
23 March 2010
Case Number
8620/07
Procedural Posture
Leave to Appeal / Application for Leave to Appeal After Judgment
Outcome
Application for leave to appeal dismissed with costs.
Judges
S J Koen
Legal Topics
Contract Variation, Non Variation Clause, Waiver of Rights, Suspensive Condition
Civil Procedure Commercial and Corporate Contract Variation Non Variation Clause Waiver of Rights Suspensive Condition

Case Brief

Summary, issues, holding and outcome

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Parties

Barend Johan Dreyer

Plaintiff

Hein Lubbe

Defendant

Louis Johan Cabano

Defendant

Helderkom Eiendomme CC

Defendant

Procedural Posture

Leave to Appeal / Application for Leave to Appeal After Judgment

Legal Issues

  1. 1 Whether an orally agreed extension of time for fulfilment of a suspensive condition is valid and binding despite a non-variation clause requiring written agreement.
  2. 2 Whether the plaintiff waived the benefit of the suspensive condition on the agreed facts.

Ratio Decidendi

The court found that the language of the non-variation clause was clear and unambiguous, requiring any variation to be in writing and signed by all parties. There was no indication that the parties intended to exempt oral extensions from this requirement. The facts relied upon by the defendants to prove waiver did not support a finding that the plaintiff had abandoned the benefit of the suspensive condition. Instead, the plaintiff's conduct demonstrated an attempt to fulfil the condition, not a waiver. Consequently, there were no reasonable prospects of success on appeal.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed.
  • The defendants are ordered to pay the costs of this application jointly and severally, the one paying, the others to be absolved.