Millman, NO v Goosen

• Jurisdiction: South Africa
• Judge: LC Steyn J
• Judgment Date: 20 September 1974
• Citation: 1975 (3) SA 141 (O)
• Hearing Date: 28 February 1974
• Court: Orange Free State Provincial Division

L.C. Steyn, R.:

Ralph Millman, in his capacity as the duly appointed receiver for the creditors of Alwarvo (Pty.) Ltd., H which company was previously placed under provisional judicial management, issued a provisional sentence summons against the defendant, to which the defendant filed his opposing affidavits six days before the proposed trial date. By agreement the trial date was then postponed for six weeks.

Two days before the postponed hearing the plaintiff however filed a notice of amendment and substitution - which substituted Alwarvo (Pty.) Ltd. as plaintiff, and substantially recasted the substantive portion of the summons.

The proposed amendment firstly adds an averment that the fixtures,

LC Steyn R

fittings, stock in trade, and outstanding book debts sold "were delivered" to the defendants. Secondly, the proposed amended summons alleges that the agreement sued on was concluded on behalf of the plaintiff, then under provisional judicial A management, by its duly appointed judicial managers, duly authorised by order of Court to dispose of any of the plaintiff's assets, represented byone of them, R. Millman. A copy of the order of Court and copies of the appointment of the judicial managers are now attached.

Mr. Van Heerden, for the plaintiff, conceded that he was not entitled to ask for provisional sentence on the unamended B summons, but applied for the amendment of the summons and for provisional sentence on the summons as amended, subject to the payment of the wasted costs occasioned by the amendment.

Mr. Kumleben for the defendant however contended that the provisional sentence summons in its unamended form is fatally defective in six material respects and that, in view of the C far-reaching nature of the amendment sought at this late stage, the Court should not exercise its discretion in favour of granting the plaintiff his amendment of the summons, but should refuse the amendment and provisional sentence.

Firstly, it is contended that the summons is fatally defective in that it fails to allege delivery or tender of delivery of D the assets sold in terms of the bilateral agreement sued upon.

The correctness of this contention depends largely on the intention of the parties as ascertained by interpretation of their written contract.

The contract explicitly stipulates that payment of the initial deposit, and delivery of the assets bought were to take place on signature of the agreement and the instalments on subsequent E stipulated dates. Where the unpaid instalments claimed in the summons clearly fell due after the delivery date of the assets, it is extremely unlikely that the contracting parties envisaged payment of these instalments before or in the absence of delivery, which would also be contrary to the normal presumption of fact, i.e. that, unless there are clear F indications to the contrary, obligations in a bilateral contract are reciprocal and are to be performed simultaneously. Nulliah v Harper, 1930 AD 141 at p. 153; De Wet & Yeats, Kontraktereg, 3rd ed., p. 139; Eklund v Vorster, 1938 T.P.D. 252 at p. 255.

For present purposes it is not necessary to decide whether the two cases relied on by Mr. Van Heerden, i.e. Onay and Another G v. Schmulian and Others, 1971 (1) SA 626 (W), and Knox v Crane, 1952 (2) SA 496 (N), were correctly decided, because they are both distinguishable on the facts in that the Court found as a fact in each case that reciprocal obligations were not intended by the contracting parties.

In this particular contract I am satisfied that the intention of the parties as evidenced by their agreement was that the H plaintiff would only be entitled to claim payment of the balance of the purchase price after delivery of the assets or, at least, tender of delivery thereof and that delivery can properly be regarded as a condition precedent to payment. Cf. Kamaludin v Gihwala, 1956 (2) SA 323...