Sentinel Mining Industry Retirement Fund and Another v Waz Props (Pty) Ltd and Another (779/11) [2012] ZASCA 124; 2013 (3) SA 132 (SCA) (21 September 2012)

Sentinel Mining Industry Retirement Fund and Another v Waz Props (Pty) Ltd and Another (779/11) [2012] ZASCA 124; 2013 (3) SA 132 (SCA) (21 September 2012)

The Supreme Court of Appeal held that clause 5 of the contract, read with options 1 and 3, imposed a resolutive condition that terminated the obligation to pay if the project was not completed by 1 April 2009. The court found that clause 4 was exhaustive of the methods of payment and that the obligation to pay did not survive the lapsing of the security. The court further held that commercial sense and the scheme of the contract required that a tacit term be incorporated into clause 5, such that the guarantee under option 2 would also lapse if the project was not completed by the specified date. The court rejected the respondents' argument that the obligation to pay survived and found...

Citation
[2012] ZASCA 124
Parties
Appellant: Sentinel Mining Industry Retirement Fund; Appellant: Fluxmans Attorneys Inc; Respondent: Waz Props (Pty) Ltd; Respondent: Werlex Properties (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
21 September 2012
Case Number
779/11
Procedural Posture
Civil Appeal / Appeal From South Gauteng High Court, Johannesburg
Outcome
Appeal dismissed with costs.
Judges
Cloete, Malan, Shongwe, Tshiqi, Southwood
Legal Topics
Contract Interpretation, Tacit Terms, Guarantee Liability, Resolutive Condition
Commercial and Corporate Civil Procedure Contract Interpretation Tacit Terms Guarantee Liability Resolutive Condition

Case Brief

Summary, issues, holding and outcome

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Parties

Sentinel Mining Industry Retirement Fund

Appellant

Fluxmans Attorneys Inc

Appellant

Waz Props (Pty) Ltd

Respondent

Werlex Properties (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From South Gauteng High Court, Johannesburg

Legal Issues

  1. 1 Whether clause 5 of the contract imposed a resolutive condition terminating the obligation to pay if the project was not completed by 1 April 2009.
  2. 2 Whether a tacit term should be incorporated into clause 5 to the effect that the guarantee under option 2 would lapse if the project was not completed by the specified date.
  3. 3 Whether the presentation of the guarantee for payment was valid after the project completion date had passed.

Ratio Decidendi

The Supreme Court of Appeal held that clause 5 of the contract, read with options 1 and 3, imposed a resolutive condition that terminated the obligation to pay if the project was not completed by 1 April 2009. The court found that clause 4 was exhaustive of the methods of payment and that the obligation to pay did not survive the lapsing of the security. The court further held that commercial sense and the scheme of the contract required that a tacit term be incorporated into clause 5, such that the guarantee under option 2 would also lapse if the project was not completed by the specified date. The court rejected the respondents' argument that the obligation to pay survived and found...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.