Kovacs Investments 724 (Pty) Ltd v Marais (323/08) [2009] ZASCA 84; [2009] 4 All SA 398 (SCA) (20 August 2009)

Kovacs Investments 724 (Pty) Ltd v Marais (323/08) [2009] ZASCA 84; [2009] 4 All SA 398 (SCA) (20 August 2009)

The Supreme Court of Appeal held that the failure to secure a loan in the amount stipulated in the written agreement constituted non-fulfilment of a suspensive condition. The parties' conduct in proceeding with the sale did not amount to a valid waiver, as any amendment to the loan amount would be a variation of a...

Source-derived case information.

Citation
[2009] ZASCA 84
Parties
Appellant: Kovacs Investments 724 (Pty) Ltd; Respondent: Frederick Carter Marais
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
20 August 2009
Case Number
323/08
Procedural Posture
Civil Appeal / Appeal From the High Court (cape of Good Hope Provincial Division)
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Mpati, Brand, Lewis, Maya, Bosielo
Legal Topics
Alienation of Land Act, Non Variation Clause, Suspensive Conditions, Waiver, Contractual Variation
Commercial and Corporate Land and Property Alienation of Land Act Non Variation Clause Suspensive Conditions Waiver Contractual Variation

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Summary, issues, holding and outcome

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Parties

Kovacs Investments 724 (Pty) Ltd

Appellant

Frederick Carter Marais

Respondent

Procedural Posture

Civil Appeal / Appeal From the High Court (cape of Good Hope Provincial Division)

Legal Issues

  1. 1 Whether the written agreement of sale lapsed due to non-fulfilment of suspensive conditions.
  2. 2 Whether an alleged joint venture to purchase the entire property is valid and binding on the parties.

Ratio Decidendi

The Supreme Court of Appeal held that the failure to secure a loan in the amount stipulated in the written agreement constituted non-fulfilment of a suspensive condition. The parties' conduct in proceeding with the sale did not amount to a valid waiver, as any amendment to the loan amount would be a variation of a material term, which, in terms of section 2(1) of the Alienation of Land Act and the non-variation clause, had to be in writing. The alleged waiver was in fact an impermissible oral variation. Consequently, the written agreement lapsed automatically on 15 August 2005. The court further found that the appellant could not rely on the alleged joint venture agreement for transfer of...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including those consequent upon the employment of two counsel.