Silver Solutions 1206 CC v Oosthuizen and Others; Quick Leap Investments 438 (Pty) Ltd v Silver Solutions 1206 CC and Others (M 491/2019; KPM 113/2018) [2021] ZANWHC 85 (25 November 2021)

Silver Solutions 1206 CC v Oosthuizen and Others; Quick Leap Investments 438 (Pty) Ltd v Silver Solutions 1206 CC and Others (M 491/2019; KPM 113/2018) [2021] ZANWHC 85 (25 November 2021)

The court found that Quick Leap Investments was not in breach of clause 2.1 of the settlement agreement regarding the July 2019 instalment, as payment was made via electronic transfer on 6 July 2019 and subsequently accepted by Silver Solutions, which retrospectively validated the payment. The invocation of the acceleration clause for a technical delay in payment due to banking processes over a weekend was held to be against public policy and unfair. However, Quick Leap failed to pay the August 2019 and subsequent instalments, and the defence of impossibility of performance was rejected, as no sufficient evidence was provided that Quick Leap lacked access to alternative funds. The first...

Citation
[2021] ZANWHC 85
Parties
Applicant: Silver Solutions 1206 CC; Respondent: Johannes Petrus Oosthuizen; Respondent: Juan Adriaan Oosthuizen; Respondent: Quick Leap Investments 438 (Pty) Ltd; Respondent: The Sheriff of the High Court, Mahikeng; Respondent: ABSA Bank
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
25 November 2021
Case Number
M 491/2019; KPM 113/2018
Procedural Posture
Civil Application / Consolidated Applications for Payment and Rescission of Writ of Execution
Outcome
Application partly succeeds. Quick Leap is not in breach for July 2019, but is in breach for August 2019 and subsequent instalments. The writ of execution is set aside. Respondents are ordered to pay R600,000 plus interest. No order as to costs.
Judges
A.M. Mtembu
Legal Topics
Settlement Agreement, Acceleration Clause, Suretyship, Impossibility of Performance, Writ of Execution, Public Policy
Commercial and Corporate Civil Procedure Settlement Agreement Acceleration Clause Suretyship Impossibility of Performance Writ of Execution Public Policy

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Parties

Silver Solutions 1206 CC

Applicant

Johannes Petrus Oosthuizen

Respondent

Juan Adriaan Oosthuizen

Respondent

Quick Leap Investments 438 (Pty) Ltd

Respondent

The Sheriff of the High Court, Mahikeng

Respondent

ABSA Bank

Respondent

Procedural Posture

Civil Application / Consolidated Applications for Payment and Rescission of Writ of Execution

Legal Issues

  1. 1 Whether Quick Leap Investments breached clause 2.1 of the settlement agreement regarding the July 2019 instalment.
  2. 2 Whether the acceleration clause was validly invoked and enforceable under the circumstances.
  3. 3 Whether the attachment of Quick Leap's bank account rendered performance impossible.

Ratio Decidendi

The court found that Quick Leap Investments was not in breach of clause 2.1 of the settlement agreement regarding the July 2019 instalment, as payment was made via electronic transfer on 6 July 2019 and subsequently accepted by Silver Solutions, which retrospectively validated the payment. The invocation of the acceleration clause for a technical delay in payment due to banking processes over a weekend was held to be against public policy and unfair. However, Quick Leap failed to pay the August 2019 and subsequent instalments, and the defence of impossibility of performance was rejected, as no sufficient evidence was provided that Quick Leap lacked access to alternative funds. The first...

Court Disposition

Application partly succeeds. Quick Leap is not in breach for July 2019, but is in breach for August 2019 and subsequent instalments. The writ of execution is set aside. Respondents are ordered to pay R600,000 plus interest. No order as to costs.

Orders

  • Quick Leap is not in breach of clause 2.1 of the settlement agreement in respect of July 2019 instalment.
  • The writ of execution and the attachment thereon are set aside.