Dreyer v Lubbe and Others (8620/07) [2010] ZAWCHC 20 (18 February 2010)

Dreyer v Lubbe and Others (8620/07) [2010] ZAWCHC 20 (18 February 2010)

The court held that the oral agreement to extend the time for fulfilment of the suspensive condition constituted a variation of the contract and was invalid due to the non-variation clause requiring written and signed amendments. The facts pleaded by the defendants did not amount to a waiver of the suspensive condition but rather an attempted extension, which was not valid. As the suspensive condition was not fulfilled within the agreed period and no valid extension occurred, the agreement lapsed and was of no force and effect. The purported cancellation by the defendants was legally irrelevant as the agreement had already lapsed. The plaintiff was entitled to a refund of the deposit paid.

Citation
[2010] ZAWCHC 20
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
18 February 2010
Case Number
8620/07
Procedural Posture
Civil Trial / Judgment
Outcome
Plaintiff's claim succeeds. The agreement of sale is declared void and the deposit must be refunded.
Judges
S J Koen
Legal Topics
Contract Variation, Suspensive Conditions, Waiver, Deposit Refund
Commercial and Corporate Civil Procedure Contract Variation Suspensive Conditions Waiver Deposit Refund

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

Civil Trial / Judgment

Legal Issues

  1. 1 Whether the oral agreement to extend the time for fulfilment of the suspensive condition was valid in light of the non-variation clause.
  2. 2 Whether the plaintiff waived the benefit of the suspensive condition.
  3. 3 Whether the agreement of sale lapsed due to non-fulfilment of the suspensive condition and whether the deposit should be refunded.

Ratio Decidendi

The court held that the oral agreement to extend the time for fulfilment of the suspensive condition constituted a variation of the contract and was invalid due to the non-variation clause requiring written and signed amendments. The facts pleaded by the defendants did not amount to a waiver of the suspensive condition but rather an attempted extension, which was not valid. As the suspensive condition was not fulfilled within the agreed period and no valid extension occurred, the agreement lapsed and was of no force and effect. The purported cancellation by the defendants was legally irrelevant as the agreement had already lapsed. The plaintiff was entitled to a refund of the deposit paid.

Court Disposition

Plaintiff's claim succeeds. The agreement of sale is declared void and the deposit must be refunded.

Orders

  • It is declared that the agreement of sale dated 7 December 2006 is of no force and effect.
  • The third defendant is ordered to pay the plaintiff the sum of R120 000 together with interest at the prescribed rate from 3 July 2007 to date of payment.