South Africa Case Law

Strategic Partners Group Concessions (Pty) Ltd vs Bombela Operating Company (Pty) Ltd and Others (2021/30068)

Strategic Partners Group Concessions (Pty) Ltd vs Bombela Operating Company (Pty) Ltd and Others (2021/30068) [2023] ZAGPJHC 25 (17 January 2023)

Court

South Gauteng High Court, Johannesburg

Case number

2021/30068

Judge

Wanless

The court held that the arbitrator did consider and apply the implied or tacit term pleaded by the applicant in the arbitration proceedings, even though he did not specifically state so in the award. The structure and reasoning of the award demonstrated that the arbitrator interpreted the relevant clauses of Annexure D and addressed the issues necessary to determine the applicant's claims. The court rejected the applicant's approach of requiring explicit mention of every pleaded allegation, finding that the correct method is a holistic interpretation of the award. The mere absence of express…

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• Arbitration Act 42 Of 1965
• Gross Irregularity
• Interpretation Of Contracts
• Shareholders Agreement
• Implied And Tacit Terms

Koster v Norval (20609/14)

Koster v Norval (20609/14) [2015] ZASCA 185 (30 November 2015)

Court

Supreme Court of Appeal

Case number

20609/2014

Judges

Ponnan, Majiedt, Pillay, Van der Merwe, Baartman

The Supreme Court of Appeal held that South African law does not require the seller in a contract of sale to be the owner of the thing sold. The seller's obligation is to deliver undisturbed possession and to warrant against eviction, not to transfer ownership. In this case, the respondent delivered possession of the game to the appellant, and there was no evidence of eviction or a claim by a person with better title. The appellant's defence based on alleged tacit or implied terms requiring transfer of ownership was rejected, as such terms are not implied by law and cannot be imported in cont…

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• Contract Of Sale
• Delivery Of Possession
• Warranty Against Eviction
• Implied And Tacit Terms

Bothma-Batho Transport (Pty) Limited and Another v Nedbank Limited (223/2014)

Bothma-Batho Transport (Pty) Limited and Another v Nedbank Limited (223/2014) [2015] ZASCA 31 (25 March 2015)

Court

Supreme Court of Appeal

Case number

223/2014

Judges

Ponnan, Leach, Willis, Saldulker, Meyer

The Supreme Court of Appeal held that the bank could not compel a replacement life policy by importing a tacit term where the contract already dealt with premiums and remedies.

• Cession Of Life Policy
• Security For Debt
• Implied And Tacit Terms
• Contractual Remedies
• Cession-of-life-policy
• Security-for-debt

Absa Bank Ltd v Erf 1252 Marine Drive (Pty) Ltd and Another (23255/2010)

Absa Bank Ltd v Erf 1252 Marine Drive (Pty) Ltd and Another (23255/2010) [2012] ZAWCHC 43 (15 May 2012)

Court

Western Cape High Court, Cape Town

Case number

23255/2010

Judge

Binns-Ward

The court found that the respondent's allegation of a tacit or implied term obliging the applicant bank to provide mortgage finance to CPI's buyers was bald, unsubstantiated, and inherently improbable. The respondent failed to provide sufficient detail or evidence to raise a genuine dispute of fact regarding the existence of such a term. The alleged damages counterclaim was also vague, lacking particularity and credibility, and did not constitute a genuine and serious defence to liquidation. The respondent's assets were illiquid, and it was experiencing cashflow problems, indicating commercia…

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• Suretyship Liability
• Implied And Tacit Terms
• Winding Up Of Companies
• Counterclaim As Defence
• Commercial Insolvency
• Creditor Discretion

Ashcor Secunda (Pty) Ltd v Sasol Synthetic Fuels (Pty) Ltd (624/10)

Ashcor Secunda (Pty) Ltd v Sasol Synthetic Fuels (Pty) Ltd (624/10) [2011] ZASCA 158 (28 September 2011)

Court

Supreme Court of Appeal

Case number

624/10

Judges

Brand, Ponnan, Cachalia, Shongwe, Plasket

The Supreme Court of Appeal dismissed Ashcor’s appeal, holding that the contract did not oblige Sasol to go beyond the express repair limits or add inconsistent tacit terms.

• Contract Interpretation
• Repudiation
• Implied And Tacit Terms
• Rectification
• Mutuality Of Performance
• Contract-interpretation

Brisen Commodities (Pty) Ltd v Farmsecure (Pty) Ltd and Others (4137/2009)

Brisen Commodities (Pty) Ltd v Farmsecure (Pty) Ltd and Others (4137/2009) [2011] ZAFSHC 109 (13 July 2011)

Court

Free State High Court, Bloemfontein

Case number

4137/2009

Judge

Murray

The court refused leave to appeal against dismissal of evidence applications, but granted leave on exceptions 3, 4, 5 and 6 and related costs.

• Exceptions To Pleadings
• Implied And Tacit Terms
• Arbitration Clauses
• Penalty Clauses
• Leave To Appeal
• Costs Orders

Nel v Toron Screen Corporation (Pty) Ltd and Another (600/94)

Nel v Toron Screen Corporation (Pty) Ltd and Another (600/94) [1996] ZASCA 80 (23 August 1996)

Court

Supreme Court of Appeal

Case number

600/94

Judges

Scott, Howie

The Supreme Court of Appeal held that the appellant failed to discharge the burden of proof that the loss of the Wave Dancer was caused by a peril insured against under the marine insurance policy. The actual cause of the sinking remained unknown, and the evidence did not establish, on a balance of probabilities, that the loss was due to either external accidental means or a latent defect occurring during the period of insurance. The court further found no basis for importing a tacit term into the contract obliging Toron to compensate Nel beyond the insurance proceeds. The jurisdictional issu…

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• Marine Insurance
• Admiralty Jurisdiction
• Implied And Tacit Terms
• Burden Of Proof
• Latent Defect
• Contractual Indemnity