Van der Walt v Minnaar

• Jurisdiction: South Africa

Van der Walt v Minnaar
1954 (3) SA 932 (O)

1954 (3) SA p932

Citation	1954 (3) SA 932 (O)
Court	Orange Free State Provincial Division
Judge	Horwitz J and Van Blerk J
Heard	May 3, 1954
Judgment	June 10, 1954

Flynote : Sleutelwoorde A

Contract — Formalities — Ord. 12 of 1906 (O), sec. 49 - Performance of an obligation under written contract in manner other than that prescribed at request of one party and as a favour by the other — Party doing favour entitled to prove such performance by extrinsic evidence — Condition in written contract deleted and verbal B condition substituted — Amendment not a compliance with section of Ordinance.

Headnote : Kopnota

Where the law provides that a contract must be in writing then where the parties concerned are in a position to and are willing to perform their C obligations under the written contract strictly, and where one of such obligations, at the request of one party and as a favour by the other party, is fully performed in a manner other than that provided in the agreement, then the fact of such performance can be proved by extrinsic evidence. But where the provisions of the written contract are altered in the sense that a provision therein is deleted and a verbal obligation substituted in its place, then no written contract exists which covers both the original agreement and the amendment and therefore the amended agreement does not comply with the provisions of section 49 of Ordinance 12 of 1906 (O).

D In terms of a written contract plaintiff had sold to defendant certain immovable property for £1,000. The agreement provided that £500 should be paid on signature thereof and the balance by means of a bank guarantee payable against registration of transfer. Plaintiff in her declaration averred that the first £500 had been paid but claimed the balance of £500, stating that the property had been transferred to defendant. Defendant in his main plea denied that anything was owing to plaintiff and averred that, through her duly authorised agent, her E husband, plaintiff had requested, prior to the transfer, that the guarantee for £500 should be signed then and there as security for a loan by the bank to plaintiff's husband and that it was then verbally agreed that such guarantee should constitute full performance by the defendant of his obligations under the contract. As an alternative he pleaded that the verbal agreement was that he would furnish the guarantee and pay it, and that he had in fact paid it to the bank. In a first alternative plea defendant pleaded further that plaintiff's claim F amounted to dolus and unscrupulous conduct on her part and that unless her claim was dismissed defendant would suffer a great injustice as he had already paid the amount of the guarantee to the bank. The second alternative plea relied partly on an allegation of set-off and partly on an allegation of a pactum de non petendo. In an exception to the pleas as disclosing no defence and being vague and embarrassing, the plaintiff contended that the allegations contained therein amounted to an alteration in the manner of payment which constituted an essential and G material part of the agreement and that such an amendment could only be made by a written agreement by virtue of the provisions of section 49 of Ordinance 12 of 1906 (O).

Held, that if the main plea were proved it would follow that the parties intended by the later agreement that the obligation of the defendant under the written agreement should thereby be discharged.

Held, further, that after the later agreement had been performed the plaintiff ceased to be defendant's creditor, and defendant was no longer indebted to her under either agreement.

Held, therefore, that the exception to the main plea and the second H alternative plea should be dismissed.

Held, further, as regards the first alternative plea, that the exceptio doli generalis constituted a defence to the claim.

Held, further, that the admission of evidence in proof of these pleas would not be contrary to the provisions of section 49 of the Ordinance: on the contrary, the purpose of the section was to prevent fraud. Exceptions accordingly dismissed.

1954 (3) SA p933

Case Information

Argument on an exception to a plea. The nature of the pleadings appears from the reasons for judgment.

J. P. G. Eksteen, for the excipient (plaintiff): Under sec. 49 of Ord. 12 of 1906 (O) the authority of the agent must be in writing; cf. Potchefstroom Dairies & Industries Co. Ltd v Standard Milk Supply Co., A 1913 T.P.D. 506. The plea puts forward as a defence an agreement between the parties which amounts to an amendment of the written contract; cf. Wilken v Kohler, 1913 AD 135; Estate du Toit v Coronation Syndicate Ltd. and Others, 1929 AD 219; Botha v Kelder, 1948 (3) SA 248. Amendments must also be in writing; see Kuper v Bolleurs, 1913 T.P.D. 334; le Grange v Pretorius, 1943 T.P.D. 223; van B den Berg v van Leggelo, 1935 T.P.D. 304; King v Potgieter, 1950 (3) SA 7. It is therefore not a good defence as evidence which is not admissible would be necessary to establish it; see Joubert v Steenkamp, 1909 T.S. 169; Louw v Central Motors (Vivgrey) Pty., Ltd., 1951 (3) SA 461. The first alternative defence embraces the exceptio doli which is not of application in the present case. The exceptio has not the same C wide scope in Roman-Dutch Law as it apparently had in the Roman Law; see Zuurbekom, Ltd v Union Corporation, Ltd., 1947 (1) SA at p. 535. The exceptio is usually applicable where the written contract between the parties does not reflect their true agreement; see Weinerlein v Goch Buildings, Ltd., 1925 AD 282; Senekal v Home Sites (Pty.) Ltd. D and Another, 1950 (1) SA 139. In the present case it is not denied that the written contract reflects the true agreement but it is alleged that subsequently an agreement was entered into which had the effect of amending the original contract. But the amending contract was never completed. This distinguishes the present case from Weinerlein's and Senekal's cases (both supra); cf. Weinerlein's case at p. 290. The E respondent must be presumed to know the law and thus to have known that the amending contract had not been completed. The plea is in conflict with Wilken's case, supra, and Botha v Kelder, 1948 (3) SA 248.

F. S. Smuts, for the respondent (defendant): The main plea is to the effect that there has, in fact, been payment or discharge of the only F remaining obligation under the contract or alternatively that respondent has been released by excipient from performing the only remaining obligation and has accepted a substituted mode of payment as satisfactory. The plea does not amount to an amendment of the contract; see Campbell v Hodgson, 171 E.R. 843; Lindley v Lacey, 17 C.B. (N.S.) G 578; du Plessis v Nel, 1952 (1) SA 513; Veenstra v Collins, 1938 T.P.D. 458; Morris v Bacon & Co., 1918 A.C. 1; Pearl Mill Co., Ltd v Ivy Tanning Co. Ltd., 1919 (1) K.B. 78; Phipson, Evidence (8th ed., p. 576). As to the second alternative plea, evidence of a verbal agreement of set-off is admissible even in the case of contracts required by law to be in writing; see In re Taylor, Ex parte Norvell, 1910 (1) K.B. 562; Wigmore, Evidence (para. 2444); Phipson, supra, p. 585. The first H alternative plea raises the exceptio doli. For the origin of the exceptio see Digest (44.4.1.1); Voet (44.4.1 and 2); Sohm, Institutes of Roman Law (Ledlie's tr., 2nd ed., pp. 279 - 82). See also Zuurbekom Ltd v Union Corporation, Ltd., 1947 (1) SA 535; Weinerlein v Goch Bldgs., Ltd., 1925 AD at pp. 291 - 3. The exceptio doli has been

1954 (3) SA p934

applied or referred to in, inter alia, Waterval Estate & G.M. Co. Ltd v New Bullion G.M. Co., Ltd., 1905 T.S. 717; Sampson v Union & Rhodesia Wholesale Ltd. (In Liquidation), 1929 AD at pp. 480 - 1; Petreas & Co v London Guarantee & Accident Co. Ltd., 1925 AD at pp. A 371, 375; Viljoen v Hillier, 1904 T.S. at p. 315; Hartogh v National Bank Ltd., 1907 T.H. at p. 210. Should it be held that the plea of payment and release raised in the main plea is not good, then, in the present case, respondent, if he were compelled to pay the £500, being the balance of the purchase price, would have an action for damages in the sum of £500 for breach of the separate verbal agreement whereby B excipient undertook to accept payment of the guarantee in fulfilment of respondent's obligations under the deed of sale. But as this cause of action would only arise on payment of the £500 to excipient, respondent could not, at this stage, counterclaim. The exceptio doli, however, allows him to raise the counterclaim, which he will ordinarily have only at a later stage, as a defence at the present stage. The very institution of the present action is a breach of faith C and an unconscionable act.

Eksteen, in...