Visagie & Associates CC and Another v Small Enterprise Finance Agency Ltd (262/2018) [2019] ZASCA 32 (28 March 2019)

Visagie & Associates CC and Another v Small Enterprise Finance Agency Ltd (262/2018) [2019] ZASCA 32 (28 March 2019)

The Supreme Court of Appeal found that the respondent failed to discharge the onus of proving that the terms of the original lease agreement regarding the timing of rental payments were tacitly relocated into the settlement agreement. The express terms of the settlement agreement were neutral on this point, and the surrounding circumstances, including the respondent's acceptance of late payments without protest, did not support the existence of a tacit term requiring payment by the first working day of each month. The respondent's subsequent invocation of the forfeiture provisions was precipitated by a dispute over the scale of costs, not late payment. In the absence of a tacit or express...

Citation
[2019] ZASCA 32
Parties
Appellant: M Visagie & Associates CC; Appellant: Mullard Hamlet Visagie; Respondent: Small Enterprise Finance Agency Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 March 2019
Case Number
262/2018
Procedural Posture
Civil Appeal / Appeal From the Western Cape Division, Cape Town
Outcome
Appeal upheld with costs. The orders of the high court and magistrate's court are set aside and substituted with dismissal of the application with costs.
Judges
Majiedt, Swain, Zondi, Mocumie, Rogers
Legal Topics
Lease Agreement, Settlement Agreement, Tacit Terms, Breach of Contract, Costs Award
Commercial and Corporate Land and Property Lease Agreement Settlement Agreement Tacit Terms Breach of Contract Costs Award

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 3 Authorities cited 7 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

M Visagie & Associates CC

Appellant

Mullard Hamlet Visagie

Appellant

Small Enterprise Finance Agency Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From the Western Cape Division, Cape Town

Legal Issues

  1. 1 Whether the terms of the original lease agreement were tacitly relocated into the settlement agreement.
  2. 2 Whether the appellants breached the settlement agreement by paying rental after the first working day of each month.
  3. 3 Whether the respondent was entitled to invoke the forfeiture provisions of clause 12 of the settlement agreement.

Ratio Decidendi

The Supreme Court of Appeal found that the respondent failed to discharge the onus of proving that the terms of the original lease agreement regarding the timing of rental payments were tacitly relocated into the settlement agreement. The express terms of the settlement agreement were neutral on this point, and the surrounding circumstances, including the respondent's acceptance of late payments without protest, did not support the existence of a tacit term requiring payment by the first working day of each month. The respondent's subsequent invocation of the forfeiture provisions was precipitated by a dispute over the scale of costs, not late payment. In the absence of a tacit or express...

Court Disposition

Appeal upheld with costs. The orders of the high court and magistrate's court are set aside and substituted with dismissal of the application with costs.

Orders

  • The appeal is upheld with costs.
  • The order of the high court is set aside and substituted with: 'The appeal is upheld with costs. The order of the Magistrate’s Court, Kuilsrivier, is set aside and substituted with: "The application is dismissed with costs".'