Total South Africa (Pty) Ltd v Bekker NO

• Jurisdiction: South Africa
• Citation: 1992 (1) SA 617 (A)

Total South Africa (Pty) Ltd v Bekker NO
1992 (1) SA 617 (A)

1992 (1) SA p617

Citation	1992 (1) SA 617 (A)
Court	Appellate Division
Judge	Joubert JA, Hefer JA, Smalberger JA, Eksteen JA and Nicholas AJA
Heard	November 1, 1991
Judgment	November 28, 1991

Flynote : Sleutelwoorde B

Appeal — In what cases — Against refusal of application for a stay of a writ of execution pending an action for the setting aside of the writ — Decision of Full Bench on appeal from decision of Local Division granting stay 'a judgment or order . . . given on appeal' as envisaged C by s 20(1) of Supreme Court Act 59 of 1959 and is appealable.

Contract — Discharge of — Expromissio — Underlying expromissio and intercessio is an assumption of liability for the debt of another and not constituted by an agreement in the nature of a conditional pactum de D non petendo whereby a creditor undertook not to sue his debtor on condition that party complied with his obligations under the pactum — Where agreement not open to interpretation that assumption of liability to creditor had occurred or that such interpretation contrary to clear and unambiguous wording of agreement, no expromissio occurring. E

Headnote : Kopnota

The respondent was the trustee in the insolvent estate of one V whose estate had been provisionally sequestrated at the instance of the appellant as a counter-application to an application for the stay of a writ of execution against him brought by the appellant. It appeared that V and a company owned by him (T Co) (and which was under provisional judicial management) owed the appellant R2,8 million. An action for the F recovery of this amount was settled between the parties and an order of Court was issued in terms of which V was obliged to pay the amount of R2,8 million by 11 June 1986. When V failed to pay, the appellant caused a writ of execution to be issued. The writ was never executed because of V's sequestration on 22 July 1986. Two months previously V had disposed of his shareholding in T Co to a company controlled by a longstanding friend, F. T Co was discharged from provisional judicial management on 19 August and on the following day an agreement was entered into between G the appellant and F in terms of which it was

1992 (1) SA p618

A agreed that 'subject to the condition that F faithfully carries out the terms of this agreement and performs the obligations herein contained on the due dates thereof, Total agrees that it shall not proceed against V in respect of its claim against V arising out of a settlement which was made an order of Court. . . . In consideration for its undertaking aforesaid, F agrees and undertakes to pay to Total. . . .' In terms of the undertaking F agreed to pay the amount of R60 000 by 1 September and R440 000 in monthly instalments of R10 000 per month as from 7 November B 1986. F paid the R60 000 but failed to pay the instalment of 7 November. On 17 November the appellant issued a provisional sentence summons against F for the amount of R440 000. A Local Division dismissed the application for a stay in these circumstances and granted the counter-application for the provisional sequestration of V. An appeal against this decision to a Provincial Division was successful and the Court granted the stay pending the institution of an action to set aside C the writ. The Provincial Division held that the appellant was obliged to elect to proceed against either F or V and that once it had elected to proceed against F after he had breached his obligations under the agreement it could not have reverted to its claim against V. In a further appeal it was contended on behalf of the respondent, firstly, that the order of the Court a quo was not appealable as it was a decision on a purely interlocutory matter and, secondly, that V had become a party to the agreement either in that it was an implied term of D the agreement that V would become a party thereto or that clauses 1 and 2 thereof constituted a stipulatio alteri for the benefit of V.

Held, that the decision of the Provincial Division on appeal from the decision of the Local Division reversing the decision of the latter Court in refusing a stay was 'a judgment or order . . . given on appeal' as envisaged by s 20(1) of the Supreme Court Act 59 of 1959 and was appealable.

E Held, further, in respect of the argument that it was an implied term of the agreement that V would become a party to the agreement, that there were no allegations to support this but that it was specifically hit by clause 8 of the agreement which expressly excluded any implied term not recorded in the agreement.

Held, further, with respect to the argument that the agreement constituted a stipulatio alteri in favour of V, that the agreement disclosed no intention on the part of the appellant or F that V would F become a party thereto nor was there any allegation by V that the parties intended a stipulation in his favour.

Held, further, that the Court of first instance had correctly interpreted clauses 1 and 2 as constituting a conditional pactum de non petendo - an undertaking not to sue V conditional upon the due and punctual performance by F of the obligations imposed on him: when F breached the terms of the agreement the condition to which the pactum was subject failed and the appellant's undertaking not to sue V lapsed; G and this left the appellant free to recover from V his outstanding indebtedness and at the same time it was entitled to enforce performance by F of his obligations under the agreement.

Held, further, that there were two separate and distinct rights of action each with its own valid causa and no question of election arose.

Held, further, that despite the use of the word 'intercede' in the preamble to the agreement there was no question of the existence of an H intercessio as used in the Roman law or the related concept of expromissio: clauses 1 and 2, whether taken alone or in the context of the agreement, were not open to the interpretation that F assumed V's debt to the appellant and such interpretation flew in the face of the clear and unambiguous wording of the clauses.

Held, accordingly, that the respondent had failed to establish that there was no valid causa for the issue of the writ and that it followed that the Court of first instance had correctly dismissed the application for the stay thereof. Appeal upheld.

I The decision in the Transvaal Provincial Division in Bekker NO v Total South Africa (Pty) Ltd 1990 (3) SA 159 reversed.

Case Information

Appeal from a decision in the Transvaal Provincial Division reported at 1990 (3) SA 159 (Kriegler J, Stafford J and Roos AJ). The facts J appear from the judgment of Smalberger JA.

1992 (1) SA p619

A J Heher SC (with him G Farber SC) for the appellant referred to the following authorities (the heads of argument were drawn by J Heher SC (with him A Subel)): Schneider NO v Raikin 1955 (1) SA 19 (W); Impala Distributors v Taunus Chemical Manufacturing Co (Pty) Ltd 1975 (3) SA 273 (T); Optima Fertilisers (Pty) Ltd v Turner 1968 (4) SA 29 (D); Woolfsons Credit (Pty) Ltd v Holdt 1977 (3) SA 720 (N); Seaborn v Smith B 1955 (4) SA 339 (N); Naicker v Pensil 1967 (1) SA 198 (N); Webster v Mitchell 1948 (1) SA 1186 (W); Gool v Minister of Justice 1955 (2) SA 682 (C); Beecham Group Ltd v B-M Group (Pty) Ltd 1977 (1) SA 50 (T); Hepner v Roodepoort-Maraisburg Town Council 1962 (4) SA 772 (A); Borstlap v Spangenberg en Andere 1974 (3) SA 695 (A); Swadif (Pty) Ltd v Dyke NO 1978 (1) SA 928 (A); Trust Bank of Africa Ltd v Dhooma 1970 (3) SA 304 (N) C ; Mondorp Eiendomsagentskap (Edms) Bpk v Kemp en De Beer 1979 (4) SA 74 (A); Blom v Auret (1907) 24 SC 48; Edgcome v Maunsell 1911 CPD 521; Cazalet v Johnson 1914 TPD 142; Hubbart v Rogers 1915 WLD 39; Dorfman v Perring 1922 EDL 137; Hills v Stanley 1930 NPD 268; Schoeman v D Moller 1951 (1) SA 456 (O); SA Hyde (Pty) Ltd v Neumann 1970 (4) SA 55 (O); Blaikie-Johnstone v Holliman 1971 (4) SA 108 (D); Joel Melamed and Hurwitz v Cleveland Estates (Pty) Ltd 1984 (3) SA 155 (A); Caney The Law of Novation at 5, 37-8; Wessels Law of Contract 2nd ed para 3781; Law Union and Rock Insurance Co v Carmichael's Executor 1917 AD 593; Aird v Hockly's Estate 1937 EDL 34; Desai v Inman & Co 1971 (1) SA 43 (N); E Crookes NO and Another v Watson and Others 1956 (1) SA 277 (A); Ranch International Pipelines (Transvaal) (Pty) Ltd v LMG Construction (City) (Pty) Ltd 1984 (3) SA 861 (W) at 882H-I; Van Streepen & Germs (Pty) Ltd v Transvaal Provincial Administration 1987 (4) SA 569 (A) at 580D-582D, 583I-584C; Government Mining Engineer and Others v National Union of F Mineworkers and Others 1990 (4) SA 692 (W) at 704H-705B; Heyman v Yorkshire Insurance Co Ltd 1964 (1) SA 487 (A) at 490H; Desai v Engar & Engar 1966 (4) SA 647 (A) at 653H-654A; South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at 549H-550A; South African Druggists Ltd v Beecham Group plc 1987 (4) SA 876 (T) at 880B; Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd (2) G 1988 (2) SA 360 (W) at 366C; Sandton Town Council v Erf 89 Sandown Extension 2 (Pty) Ltd 1988 (3) SA 122 (A); Proud Investments (Pty) Ltd v Lanchem International (Pty) Ltd (unreported); Blaauwbosch Diamonds Ltd v Union Government (Minister of Finance) 1915 AD 599; African Wanderers Football Club (Pty) Ltd v Wanderers Football Club 1977 (2) SA 38 (A) at H 46; Pretoria Garrison Institutes v Danish Variety Products (Pty) Ltd 1948 (1) SA 839 (A) at 845-6, 865-6; De Pinto and Another v Rensea Investments (Pty) Ltd 1977 (2) SA 1000 (A) at 1007H; Parekh v Shah Jehan Cinemas (Pty) Ltd and Others 1982 (3) SA 618 (D) at 628E-F; Portwig v Deputation Street Investments (Pty) Ltd 1985 (1) SA 83 (D) at 88E; Chysafis and Others v Katsapas 1988 (4) SA 818 (A) at 828I; Bank of I Lisbon...