Louw and Others v Davids and Others (783/2017) [2018] ZASCA 70 (29 May 2018)

Louw and Others v Davids and Others (783/2017) [2018] ZASCA 70 (29 May 2018)

The court held that, even assuming the oral variation of the payment schedule was not legally effective due to the non-variation clause, the appellants continued to accept payments beyond the stipulated dates without protest, indicating acquiescence. By the time cancellation was sought, 96 percent of the purchase price had been paid, and restitution was unlikely. The breach was not material enough to justify cancellation, and the tender of restitution by the appellants was vague and speculative. The agreement did not contain an express or tacit suspensive condition requiring Ministerial approval for the sale to be binding. The cumulative factors rendered cancellation an inappropriate and...

Citation
[2018] ZASCA 70
Parties
Appellant: Lya Louw; Appellant: Maria Johanna Atkins; Appellant: Maria Blankenberg; Appellant: Maria Magdalena Booysen; Appellant: Magrieta Kamfer; Appellant: Johanna Kamfer; Appellant: Patrick Leonard NO; Appellant: George Rudolph Whittle NO; Appellant: Sabina Swartz; Appellant: Johanna Susanna Taylor; Respondent: Ashraf Davids; Respondent: Shereen Mathir; Respondent: Moegamat Alie Davids
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 May 2018
Case Number
783/2017
Procedural Posture
Civil Appeal / Appeal From Full Bench of Western Cape Division, High Court
Outcome
Appeal dismissed.
Judges
Navsa, Swain, Davis, Plasket, Rogers
Legal Topics
Breach of Contract, Sale of Members Interest, Close Corporation, Material Breach, Restitution, Non Variation Clause
Commercial and Corporate Breach of Contract Sale of Members Interest Close Corporation Material Breach Restitution Non Variation Clause

Case Brief

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Parties

Lya Louw

Appellant

Maria Johanna Atkins

Appellant

Maria Blankenberg

Appellant

Maria Magdalena Booysen

Appellant

Magrieta Kamfer

Appellant

Johanna Kamfer

Appellant

Patrick Leonard NO

Appellant

George Rudolph Whittle NO

Appellant

Sabina Swartz

Appellant

Johanna Susanna Taylor

Appellant

Ashraf Davids

Respondent

Shereen Mathir

Respondent

Moegamat Alie Davids

Respondent

Procedural Posture

Civil Appeal / Appeal From Full Bench of Western Cape Division, High Court

Legal Issues

  1. 1 Whether the cancellation of the agreement for sale of members' interests in the close corporation was justified.
  2. 2 Whether the sale agreement was subject to a suspensive condition requiring Ministerial approval.

Ratio Decidendi

The court held that, even assuming the oral variation of the payment schedule was not legally effective due to the non-variation clause, the appellants continued to accept payments beyond the stipulated dates without protest, indicating acquiescence. By the time cancellation was sought, 96 percent of the purchase price had been paid, and restitution was unlikely. The breach was not material enough to justify cancellation, and the tender of restitution by the appellants was vague and speculative. The agreement did not contain an express or tacit suspensive condition requiring Ministerial approval for the sale to be binding. The cumulative factors rendered cancellation an inappropriate and...

Court Disposition

Appeal dismissed.

Orders

  • The appeal is dismissed.
  • No costs order is made against the appellants in this appeal.