Jordaan and Another v Msweli (488/05) [2007] ZAECHC 151 (19 June 2007)

Jordaan and Another v Msweli (488/05) [2007] ZAECHC 151 (19 June 2007)

The court held that clause 2a, the subject-to-bond clause, was a suspensive condition inserted for the sole benefit of the plaintiffs as purchasers and could be unilaterally waived by them, which they did before the stipulated date. Clause 2.2, requiring the furnishing of guarantees, was not a suspensive condition but a term of the agreement; its non-fulfilment did not render the agreement unenforceable. The defendant's special plea failed on both grounds. Furthermore, the defendant's failure to plead over on the merits was contrary to the established practice and rules of the Division, and leave to plead over was required and granted. Costs were awarded against the defendant, and the...

Citation
[2007] ZAECHC 151
Parties
Plaintiff: H.C.W. Jordaan; Plaintiff: G. Jordaan; Defendant: Z. Msweli
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
19 June 2007
Case Number
488/05
Procedural Posture
Civil Trial / Special Plea; Application for Leave to Plead Over
Outcome
Special plea dismissed; defendant granted leave to plead over on the merits; costs awarded against defendant; matter postponed sine die.
Judges
Plasket
Legal Topics
Suspensive Condition, Waiver of Rights, Agreement of Sale, Pleading Practice, Specific Performance
Land and Property Civil Procedure Suspensive Condition Waiver of Rights Agreement of Sale Pleading Practice Specific Performance

Case Brief

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Parties

H.C.W. Jordaan

Plaintiff

G. Jordaan

Plaintiff

Z. Msweli

Defendant

Procedural Posture

Civil Trial / Special Plea; Application for Leave to Plead Over

Legal Issues

  1. 1 Whether the subject-to-bond clause (clause 2a) was a suspensive condition for the sole benefit of the plaintiffs and could be waived by them.
  2. 2 Whether clause 2.2, requiring the furnishing of guarantees, constituted a suspensive condition or was merely a term of the agreement.
  3. 3 Whether the defendant's failure to plead over on the merits was permissible under the rules and practice of the Division.

Ratio Decidendi

The court held that clause 2a, the subject-to-bond clause, was a suspensive condition inserted for the sole benefit of the plaintiffs as purchasers and could be unilaterally waived by them, which they did before the stipulated date. Clause 2.2, requiring the furnishing of guarantees, was not a suspensive condition but a term of the agreement; its non-fulfilment did not render the agreement unenforceable. The defendant's special plea failed on both grounds. Furthermore, the defendant's failure to plead over on the merits was contrary to the established practice and rules of the Division, and leave to plead over was required and granted. Costs were awarded against the defendant, and the...

Court Disposition

Special plea dismissed; defendant granted leave to plead over on the merits; costs awarded against defendant; matter postponed sine die.

Orders

  • The special plea is dismissed with costs.
  • The matter is postponed sine die.