R M Van de Ghinste & Co (Pty) Ltd v Van de Ghinste

• Jurisdiction: South Africa
• Citation: 1980 (1) SA 250 (C)

R M Van de Ghinste & Co (Pty) Ltd v Van de Ghinste
1980 (1) SA 250 (C)

1980 (1) SA p250

Citation	1980 (1) SA 250 (C)
Court	Cape Provincial Division
Judge	King AJ
Heard	September 8, 1978
Judgment	June 7, 1979

Flynote : Sleutelwoorde C

Practice — Pleadings — Amendment of — Application for — Amendment sought would make pleading excipiable — Court will ordinarily refuse application for amendment — Court will only confine itself to enquiry whether excipiability is arguable in exceptional circumstances.

Contract — Performance — One party claiming performance by the other of D his contractual obligations — What former must aver or tender in relation to his own performance.

Headnote : Kopnota

It emerges clearly from the various decisions of the Courts that for a Court, faced with an objection to a proposed amendment to a pleading on the ground that the pleading, as amended, would be excipiable, to confine itself to an enquiry as to whether or not the question of excipiability is arguable - ie whether or not the pleading may be excipiable - is an E expedient which will be resorted to only in exceptional circumstances and that ordinarily the Court will decide on the question and if the Court's decision is that the pleading as amended would be excipiable the Court will refuse the application for amendment.

Crawford-Brunt v Kavnat and Another 1967 (4) SA 308 (C) discussed and distinguished.

F The principles relating to what a plaintiff claiming performance by the defendant of his contractual obligations must aver or tender in relation to his own performance restated.

Case Information

Application by the plaintiff for the amendment of its pleadings. The nature of the pleadings appears from the reasons for judgment.

H C Nel SC (with him M S Jacobs) for the plaintiff.

B Hoberman (with him M W Odes) for the defendant. G

Cur adv vult.

Postea (June 7). H

Judgment

King AJ:

At the commencement of the trial of this matter, Mr Nel (who, with Mr Jacobs appears for plaintiff) applied for certain amendments to plaintiff's pleadings. Mr Hoberman (who, with Mr Odes, appears for defendant) objected to the granting of the amendments sought, both on the ground that the amendments would render the pleadings excipiable and also on the ground that they were being sought at an unreasonably late stage and without adequate explanation for such lateness and that the effect of granting the amendments would be prejudicial to defendant.

1980 (1) SA p251

King AJ

The amendments sought concern both the declaration and the plea in reconvention. After I had reserved judgment on the whole matter I was advised by counsel that the precise point raised by the application to amend the plea in reconvention was to be determined, in a related matter, A by the Appellate Division. I am grateful to counsel for their thoughtfulness. The Appellate Division has now given judgment and I shall, with respect, apply such judgment to the latter application. The matter is List v Jungers (case No 385/77). [*]

I turn now to consider the proposed amendment to plaintiff's declaration. After citation of the parties, the declaration reads:

B [The learned Judge set out the contents of the declaration, the plea and portions of the replication and continued.]

On analysis, the issue between the parties in convention on the pleadings as they stand may accordingly be stated thus:

1.

Plaintiff claims the purchase price of certain shares sold to C defendant in terms of an oral agreement; plaintiff tenders the shares against payment (this is the only obligation with which plaintiff is burdened in terms of the oral agreement).

2.

Defendant denies the oral agreement averred by plaintiff and avers that the parties entered into a written contract, namely the aforesaid letter of 9 July 1970.

3.

D Plaintiff, in reply, says that the letter is merely confirmatory of various oral agreements concluded between the various parties referred to therein.

Plaintiff's declaration, as amended, would read:

'3.

During or about 9 July 1970, and at Cape Town in the Cape, the E parties hereto concluded a written agreement in terms whereof plaintiff sold to defendant its 50 percent shareholding in a certain company, Van de Ghinste Holdings (Pty) Ltd, and its 49 percent shareholding in a certain company, R M van de Ghinste (Pty) Ltd, for the sum of R60 000.

4.

The said written agreement provided that:

(a)

F defendant would pay the said purchase price at the rate of R2 000 per month commencing on 5 January 1971 and payable thereafter on the fifth day of each succeeding month;

(b)

the said purchase price, as reduced from time to time, would carry interest at the rate of 7 per cent per annum, which G interest would be paid monthly by defendant together with the sum of R2 000 aforementioned;

(c)

plaintiff would cause transfer of the said shareholdings to be effected to defendant upon payment in full of the said price having been made by him.

5.

Defendant failed to pay any of the said monthly payments of R2 000 H which were due and payable by him to plaintiff from and including 5 January 1971 to 5 October 1972, viz up to date of issue of summons, nor had defendant made any payments in respect of interest up to that date.

6.

Defendant has furthermore failed, since issue and service of summons upon him, to make any of the said monthly payments which fell due for payment thereafter, nor has defendant made

1980 (1) SA p252

King AJ

any payments whatsoever in respect of the said purchase price of R60 000, nor has defendant made any payments in respect of interest.

7.

In the premises the full purchase price of R60 000 is now due and payable by defendant to plaintiff, with interest thereon at 7 per cent per annum as provided for in the said agreement.

Wherefore plaintiff, tendering its said 49 per cent shareholding in R M B van de Ghinste (Pty) Ltd and its 50 per cent shareholding in Van de Ghinste Holdings (Pty) Ltd, claims:

(a)

payment of the sum of R60 000;

(b)

interest on the said sum at the rate of 7 per cent per annum from 5 January 1971 to date of payment;

(c)

alternative relief;

(d)

costs of suit.'

C It will be seen that plaintiff now seeks, by way of amendment, to compel performance by defendant of the latter's obligations under a written agreement entered into between the parties, namely the aforesaid letter of 9 July 1970.

D I shall set out the relevant portions of the letter verbatim in the course of this judgment. Suffice it for the moment to say that the declaration in its amended form avers that:

(a)

In terms of the written agreement plaintiff sold to defendant plaintiff's shareholding in two proprietary companies.

(b)

E Further in terms of the agreement defendant was to pay the purchase price of the shares in instalments, together with interest on the reducing balance, and upon full payment plaintiff would cause transfer of the shares to be effected to defendant.

(c)

Defendant has failed to perform its obligation under the F agreement, namely to pay the purchase price, the full amount whereof is now due and payable. The purchase price is now demanded by plaintiff against a tender of the aforesaid shares.

Defendant's objéction to the proposed amendment is that the written agreement imposes certain further obligations upon plaintiff and that plaintiff's failure to tender performance of these obligations or to plead averments which would render such tender unnecessary, results in a G pleading which would be excipiable as disclosing no cause of action. He relies, in other words, on the exceptio non adimpleti contractus.

Before setting out the relevant facts in greater detail I propose to set out the legal principles applicable to the enquiry.

(a)

Where a contract imposes reciprocal obligations upon the H parties, performance and counter-performance should generally take place at the same time, Nulliah v Harper 1930 AD 141 at 152 - 3; Koenig v Johnson & Co Ltd 1935 AD 262 at 276; Nortije en 'n Ander v Pool NO 1966 (3) SA 96 (A) at 137; Millman NO v Goosen 1975 (3) SA 141 (O) at 142.

(b) (i)

Certain types of contract form an exception to this rule; thus a lessor of property must perform before he can demand rental and an employee must perform before he can claim his emolument; similarly a contractor in a contract of locatio conductio operis must himself first perform; see BK Tooling (Edms) Bpk v

1980 (1) SA p253

King AJ

Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A) at 418 - 419; Sifris en 'n Ander NNO v Vermeulen Broers 1974 (2) SA 218 (T) at 223;

(ii)

also, the parties may by agreement vary the order of A performance of their obligations, see The Law of South Africa vol 5 para 196 at 105 - 6.

(c)

In a contract whereunder reciprocal obligations are created, the promises of the parties may be dependent on each other in which event neither party may demand performance from the other B unless he has himself performed or tendered performance or unless for some reason he is excused from performance; or the promises of the parties may be independent of each other, in which case this rule would not apply. See Hauman v Nortje 1914 AD 293 at 300; Hanomag (SA) (Pty) Ltd v Otto 1940 CPD 437 at 446; Arnold v Viljoen 1954 (3) SA 322 (C) at 331; Swart v C Vosloo 1965 (1) S A 100(A) at 117; Ese Financial Services (Pty) Ltd v Cramer 1973 (2) SA 805 (C); U-Drive Franchise Systems (Pty) Ltd v Drive Yourself (Pty) Ltd and Another 1976 (1) SA 137 (D).

(d) (i)

It is essentially a matter of interpretation whether, in a particular contract, the obligations are so closely linked as to be mutually dependent, thereby D rendering the principle of reciprocity applicable; if no other intention appears from the...