Linde v Premax Trading 35 CC (66175/2014) [2016] ZAGPPHC 524 (6 July 2016)

Linde v Premax Trading 35 CC (66175/2014) [2016] ZAGPPHC 524 (6 July 2016)

The court found that the suspensive conditions in clauses 5.1 and 5.3 of the agreement were not fulfilled. There was no lease agreement concluded between the plaintiff and the landlord prior to the effective date, as required by clause 5.1, and the IDC loan was paid only after the agreement had been cancelled, contrary to clause 5.3. The defendant failed to discharge the onus of proving that the plaintiff deliberately or intentionally frustrated fulfillment of the suspensive conditions, as required by the doctrine of fictional fulfillment. The evidence showed that the plaintiff attempted to comply, but was prevented by circumstances beyond her control, including fraud in the company...

Citation
[2016] ZAGPPHC 524
Parties
Plaintiff: Davilina Maria Linde; Defendant: Premax Trading 35 CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
6 July 2016
Case Number
66175/2014
Procedural Posture
Civil Trial / Separated Issue Trial Under Rule 33(4); Determination of Fulfillment of Suspensive Conditions
Outcome
Suspensive conditions in clauses 5.1 and 5.3 of the agreement were not fulfilled; defendant's defenses of fictional fulfillment and waiver dismissed; costs awarded to plaintiff.
Judges
SA Thobane
Legal Topics
Suspensive Conditions, Fictional Fulfillment, Waiver of Contractual Rights, Rectification of Contract, Sale of Business
Commercial and Corporate Suspensive Conditions Fictional Fulfillment Waiver of Contractual Rights Rectification of Contract Sale of Business

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 6 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

Davilina Maria Linde

Plaintiff

Premax Trading 35 CC

Defendant

Procedural Posture

Civil Trial / Separated Issue Trial Under Rule 33(4); Determination of Fulfillment of Suspensive Conditions

Legal Issues

  1. 1 Whether the suspensive conditions in clause 5 of the sale agreement were fulfilled, either actually or fictionally.
  2. 2 Whether the doctrine of fictional fulfillment applies to the suspensive conditions in dispute.
  3. 3 Whether the plaintiff waived compliance with the suspensive conditions.

Ratio Decidendi

The court found that the suspensive conditions in clauses 5.1 and 5.3 of the agreement were not fulfilled. There was no lease agreement concluded between the plaintiff and the landlord prior to the effective date, as required by clause 5.1, and the IDC loan was paid only after the agreement had been cancelled, contrary to clause 5.3. The defendant failed to discharge the onus of proving that the plaintiff deliberately or intentionally frustrated fulfillment of the suspensive conditions, as required by the doctrine of fictional fulfillment. The evidence showed that the plaintiff attempted to comply, but was prevented by circumstances beyond her control, including fraud in the company...

Court Disposition

Suspensive conditions in clauses 5.1 and 5.3 of the agreement were not fulfilled; defendant's defenses of fictional fulfillment and waiver dismissed; costs awarded to plaintiff.

Orders

  • It is declared that the suspensive conditions in clauses 5.1 and 5.3 of the agreement entered into between the plaintiff and the defendant were not fulfilled.
  • The defendant is ordered to pay the costs.