IS WAIVER OF A CONTRACTUAL RIGHT PROHIBITED BY A NON-VARIATION CLAUSE?
Phoenix Salt Industries (Pty) Ltd v The Lubavitch Foundation of Southern Africa (330/2023) [2024] ZASCA 107 (3 July 2024)
In this matter, the Supreme Court of Appeal considered whether a lender-benefactor’s right to waive its claim to repayment of a loan is trumped by a non-variation clause in the loan agreement. The related enquiry – whether abandonment of the right to claim payment is akin to a variation of the terms of the loan and within the reach of a non-variation clause – was also explored. Balancing the rules of interpretation of agreements in order to reach answers, the court highlighted instances when extraneous evidence may be used to give context to the terms of a contract, despite our law’s rule that a written document must be respected as constituting the parties’ agreement on the terms of their engagement.
The judgment can be viewed here
Summary of the Judgment
THREE AFFIDAVITS CAN ESTABLISH A VALID INSTALLMENT SALE, EVEN WITHOUT A RECORDAL OF THE TERMS PRESCRIBED IN SECTION 6 OF THE ALIENATION OF LAND ACT
Mohlala v Mashamaite and Others (2022/059691) [2024] ZAGPJHC 607 (4 July 2024)
Applying the well-known principles for the conclusion of a valid agreement of sale of land, the court concluded that an installment sale agreement had been established by virtue of three affidavits and an installment payment annexure signed by both parties. The absence of certain details required by section 6 of the Alienation of Land Act did not invalidate the agreement as those terms were deemed non-essential and non-material. Nevertheless, the purchaser still faced challenges in claiming ownership of the property, as the judgment and summary explain.
