Total South Africa (Pty) Ltd. v Bekker NO (261/90) [1991] ZASCA 183; 1992 (1) SA 617 (AD); [1992] 4 All SA 98 (AD) (28 November 1991)

Total South Africa (Pty) Ltd. v Bekker NO (261/90) [1991] ZASCA 183; 1992 (1) SA 617 (AD); [1992] 4 All SA 98 (AD) (28 November 1991)

The Supreme Court of Appeal held that Van Vuuren was not a party to the agreement between Total and Fourie, nor was there a stipulatio alteri in his favour, as neither the agreement nor the affidavits disclosed any intention or acceptance of benefit by Van Vuuren. The agreement constituted a conditional pactum de non petendo, whereby Total undertook not to proceed against Van Vuuren only if Fourie performed his obligations punctually. Upon Fourie's breach, the condition failed and Total's undertaking lapsed, entitling it to pursue remedies against both Fourie and Van Vuuren. The remedies were not inconsistent, and no election or waiver occurred. The Court a quo erred in finding otherwise,...

Citation
[1991] ZASCA 183
Parties
Appellant: Total South Africa (Pty) Limited; Respondent: Jacobus Nicholas Bekker N O
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 November 1991
Case Number
261/90
Procedural Posture
Civil Appeal / Appeal From Full Bench of Transvaal Provincial Division; Special Leave Granted by Supreme Court of Appeal
Outcome
Appeal upheld with costs, including costs of two counsel. The order of the Court a quo is set aside and substituted with dismissal of Van Vuuren's application with costs.
Judges
Joubert, Hefer, Smalberger, Eksteen, Nicholas
Legal Topics
Contract Interpretation, Stipulatio Alteri, Pactum De Non Petendo, Waiver and Election
Commercial and Corporate Civil Procedure Contract Interpretation Stipulatio Alteri Pactum De Non Petendo Waiver and Election

Case Brief

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Parties

Total South Africa (Pty) Limited

Appellant

Jacobus Nicholas Bekker N O

Respondent

Procedural Posture

Civil Appeal / Appeal From Full Bench of Transvaal Provincial Division; Special Leave Granted by Supreme Court of Appeal

Legal Issues

  1. 1 Whether Van Vuuren acquired rights under the agreement between Total and Fourie.
  2. 2 Whether the terms of the agreement or conduct of Total released Van Vuuren from his indebtedness under the settlement order.
  3. 3 Whether Total was obliged to elect between remedies against Fourie and Van Vuuren or could pursue both.

Ratio Decidendi

The Supreme Court of Appeal held that Van Vuuren was not a party to the agreement between Total and Fourie, nor was there a stipulatio alteri in his favour, as neither the agreement nor the affidavits disclosed any intention or acceptance of benefit by Van Vuuren. The agreement constituted a conditional pactum de non petendo, whereby Total undertook not to proceed against Van Vuuren only if Fourie performed his obligations punctually. Upon Fourie's breach, the condition failed and Total's undertaking lapsed, entitling it to pursue remedies against both Fourie and Van Vuuren. The remedies were not inconsistent, and no election or waiver occurred. The Court a quo erred in finding otherwise,...

Court Disposition

Appeal upheld with costs, including costs of two counsel. The order of the Court a quo is set aside and substituted with dismissal of Van Vuuren's application with costs.

Orders

  • The appeal is upheld with costs, including the costs of two counsel.
  • The order of the Court a quo is set aside.