Thumos properties (Pty) Ltd and Others v Sharemax Zambezi Retail Investments (Pty) Ltd (Formerly known as Brookfield Investments 256 (Pty) Ltd and Another (18384/2014) [2020] ZAGPPHC 8 (10 January 2020)

Parties

Procedural Posture

Civil Trial / Separation of Issues Under Rule 33(4); Determination of Fulfilment of Suspensive Conditions

Legal Issues

1. 1 Whether the suspensive conditions in clause 14 of the Sale of Business Amendment Agreement signed on 5 July 2011 were fulfilled.
2. 2 Whether the Board of Directors of the defendants gave the required approvals as contemplated in clause 14.
3. 3 Whether the plaintiffs or defendants discharged the onus of proof regarding fulfilment or non-fulfilment of the suspensive conditions.

Ratio Decidendi

The Court found that the suspensive conditions contained in clause 14 of the Sale of Business Amendment Agreement signed on 5 July 2011 were not fulfilled. The evidence presented by the defendants, particularly the testimony of Mr Myburgh, was not convincing and failed to prove fulfilment of the conditions. The minutes and resolutions of the Board meeting held on 6 July 2011, although signed and approved, did not constitute the required approvals as contemplated in clause 14. The plaintiffs discharged their onus of proof regarding non-fulfilment, and the defendants did not discharge their onus regarding fulfilment. Consequently, the separated issue was decided in favour of the plaintiffs.

Court Disposition

The separated issue is decided in favour of the plaintiffs; the suspensive conditions in clause 14 of the Sale of Business Amendment Agreement signed on 5 July 2011 were not fulfilled.

Orders

• The suspensive conditions contained in clause 14 of the Sale of Business Amendment Agreement signed on 5 July 2011 were not fulfilled.
• The defendants are jointly and severally ordered to pay the costs of the trial relating to the separated issues, inclusive of the costs of two counsel.