Adams v SA Motor Industry Employers Association

• Jurisdiction: South Africa
• Judge: Jansen JA, Corbett JA, Miller JA, Joubert JA and Botha AJA
• Judgment Date: 01 October 1980
• Citation: 1981 (3) SA 1189 (A)
• Hearing Date: 21 February 1980
• Court: Appellate Division

Jansen JA:

An order dismissing this appeal with costs has been made. Here follow the reasons:

On 9 November 1973 E C de V Hoffe, A J Hoffe and D B Hoffe (hereinafter referred to as the Hoffes) sold their shares and loan accounts in Ballina (Pty) Ltd to the appellant for R235 000. The written agreement of sale D provided inter alia for a deposit of R25 000 (clause 4 (a) (i) and that the balance of the purchase price was to be paid in instalments. An acceleration clause (4 (c)) enabled the Hoffes, in the event of a failure to pay any amount on time or failure to provide the security within a reasonable time, to claim "the full balance then outstanding" and interest E "without prejudice to any other remedies to which the sellers might be entitled in terms of the agreement". Appellant was to pledge the shares purchased to the Hoffes as security (clause 6). In relation to any breach "of any of the provisions of this agreement" by the appellant, clause 12 provided:

"If the purchaser should commit a breach of, or fail to comply with, any of the provisions of this agreement and should fail to remedy the F breach or comply with the agreement within a period of seven days after the despatch of written notice by the sellers to the purchaser calling on it to do so, the sellers shall be entitled forthwith to cancel the agreement, in which event the deposit referred to in clause 4 (a) (i) hereof will be forfeited to the sellers by way of a penalty for the purchaser's breach. The remedy granted to the sellers in this clause is, however, without prejudice to any other remedies to which the sellers might be entitled, including the right to claim from the purchaser such G damages as the sellers may have suffered as a consequence of the purchaser's breach."

The appellant fell in arrear with his payments. He then, on 1 April 1974 and by agreement with the Hoffes, signed an "acknowledgment of debt" of which the material provisions are as follows:

"Acknowledgment of debt

I, the undersigned............ do hereby acknowledge myself to be truly H and lawfully indebted to - Evatt Charles de Villiers Hoffe and Andre John Hoffe and Douglas Bam Hoffe (together referred to as 'the Hoffes') in the amount of R138 807 being -

(a)

R138 000 being the balance of the purchase price of the shares and loan accounts in Ballina (Pty) Ltd in terms of a written agreement of sale dated 9 November 1973, as amended by letter dated 12 February 1974, entered into between me and the Hoffes (hereinafter referred to as 'the agreement of sale').

(b)

R807 being the balance due under an adjustment account in terms of the aforesaid agreement.

(The amount of R138 807 is hereafter referred to as 'the capital sum').

Jansen JA

I do hereby renounce all benefits arising out of such legal exceptions 'non numeratae pecuniae, non causa debiti, errore calculi, revision of accounts, no value received' as may apply, and I acknowledge that I know and understand the true intent and meaning of such renunciation.

A I further acknowledge that the following terms and conditions shall apply to this acknowledgment of debt -

1.

I hereby bind and oblige myself to pay or cause to be paid to the Hoffes the capital sum in instalments as follows:

(a) On 1 April 1974.................................	R10 000;
(b) on or before 1 May 1974.........................	R40 000;
(c) B on or before 1 October 1978.....................	R88 807.

2.

............

3.

I record that in terms of the agreement of sale the capital sum was to have been paid to the Hoffes on 1 March 1974. To compensate the Hoffes for the inconvenience and damages that they have suffered as a consequence of my failure to pay the capital sum timeously I undertake to pay the Hoffes an additional sum of R15 000 by way of a penalty,...

The penalty payable by me in terms of this clause shall be without C prejudice to any right which the Hoffes may have to recover damages from me in lieu of the penalty in the event of there being any breach of the terms of this acknowledgment of debt...

4. (a)

In the event of -

(i)

my failing to make any payment due in terms of this acknowledgment of debt...