Nkengana and Another v Schnetler and Another (65/09) [2010] ZASCA 64; [2011] 1 All SA 272 (SCA) (7 May 2010)

Nkengana and Another v Schnetler and Another (65/09) [2010] ZASCA 64; [2011] 1 All SA 272 (SCA) (7 May 2010)

The Supreme Court of Appeal held that the appellants' final tender, as set out in their replying affidavit, was sufficient to entitle them to specific performance under the contract of sale. The court found that the respondent had waived strict reliance on the time clause by accepting payment of bond instalments instead of the original instalments, and thus could not rely on mora interest. The oral agreement regarding occupational rent did not constitute a variation of the written contract. The appellants were entitled to transfer of the property upon furnishing guarantees for the amounts tendered, with a mechanism to ensure the total paid would not be less than the original purchase...

Citation
[2010] ZASCA 64
Parties
Appellant: Joseph Mncedisi Nkengana; Appellant: Nombeko Felicia Nkengana; Respondent: Stephanus van der Walt Schnetler; Respondent: Standard Bank of South Africa Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
7 May 2010
Case Number
65/09
Procedural Posture
Civil Appeal / Appeal From Full Bench of Eastern Cape High Court
Outcome
Appeal upheld; order of the full court set aside and replaced with specific performance in favour of the appellants, subject to guarantees and payment conditions.
Judges
MPATI, MHLANTLA, SHONGWE, TSHIQI, GRIESEL
Legal Topics
Specific Performance, Sale of Land, Variation of Contract, Oral Agreement, Tender of Performance, Occupational Rent
Land and Property Civil Procedure Commercial and Corporate Specific Performance Sale of Land Variation of Contract Oral Agreement Tender of Performance +1 more

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 4
Sign in to unlock

Parties

Joseph Mncedisi Nkengana

Appellant

Nombeko Felicia Nkengana

Appellant

Stephanus van der Walt Schnetler

Respondent

Standard Bank of South Africa Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Full Bench of Eastern Cape High Court

Legal Issues

  1. 1 Whether the appellants' tender of performance was sufficient to entitle them to specific performance under the contract of sale.
  2. 2 Whether the oral agreement regarding payment of bond instalments constituted a valid variation of the written contract.
  3. 3 Whether the respondent waived his right to rely on the time clause for payment and whether mora interest was applicable.

Ratio Decidendi

The Supreme Court of Appeal held that the appellants' final tender, as set out in their replying affidavit, was sufficient to entitle them to specific performance under the contract of sale. The court found that the respondent had waived strict reliance on the time clause by accepting payment of bond instalments instead of the original instalments, and thus could not rely on mora interest. The oral agreement regarding occupational rent did not constitute a variation of the written contract. The appellants were entitled to transfer of the property upon furnishing guarantees for the amounts tendered, with a mechanism to ensure the total paid would not be less than the original purchase...

Court Disposition

Appeal upheld; order of the full court set aside and replaced with specific performance in favour of the appellants, subject to guarantees and payment conditions.

Orders

  • The appeal succeeds with costs, excluding costs arising from inclusion of volumes 2 and 3 in the record.
  • The order of the full court is set aside and replaced with an order for specific performance: the first respondent must take all necessary steps and sign all documents to effect transfer of the property to the appellants against furnishing of guarantees for payment of specified amounts.