THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 23/2020

In the matter between:

NEVILLE JAMES CHESTER
APPELLANT

and

SNOWY OWL PROPERTIES 142 (Pty) Ltd       FIRST RESPONDENT
ERICA ANN LEFSON
SECOND RESPONDENT
Neutral citation:
Chester v Snowy Owl Properties & Another (Case no
23/2020) [2021] ZASCA 30 (30 March 2021)
Coram:
PONNAN, MOCUMIE and SCHIPPERS JJA, EKSTEEN and
GOOSEN AJA

Heard:
2 March 2021

Delivered:
This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website,
and release to SAFLII. The time and date for hand down are deemed to be at 09h45
on 30 March 2021.

Summary:
Contract – interpretation of the words ‘subject to’ certain condition
precedents – non-fulfilment of a suspensive condition in a sale agreement.

ORDER

On appeal from: Western Cape Division of the High Court, Cape Town (Thulare
AJ, sitting as a court of first instance.)
The appeal is dismissed with costs.

JUDGMENT

Mocumie JA (Ponnan and Schippers JJA, Eksteen and Goosen AJJ
concurring)

[1] This appeal concerns an agreement concluded between the appellant, Mr
Neville James Chester and the first respondent for the sale of immovable property
situated in Oranjezicht, Cape Town at a price of R22 250 000 (the sale agreement).
The immovable property comprises a ‘Manor House’ (a heritage property dating back
to the 1760’s) together with an adjacent property (collectively ‘the property’). The
property is situated within the Amphitheatre Sectional Title Scheme (the Scheme),
regulated by the Amphitheatre Body Corporate (the Body Corporate) constituted in
terms of s 36 of the Sectional Titles Act 95 of 1986 (the Act). The Scheme is part of a
broader residential property development known as St John’s Estate (the Estate). The
owners of properties within the Estate, including the Body Corporate, are members of
the St John’s Home Owners Association (the HOA). Thulare AJ, sitting in the Western
Cape High Court Division, Cape Town (the high court), dismissed the appellant’s
claims. The appeal is with leave of the court below.

[2] The appellant was the plaintiff in the high court. The first respondent is Snowy
Owl Properties 142 (Pty) Ltd, a private company. The second respondent, Ms Erica
Ann Lefson (Ms Lefson), is a shareholder in the first respondent and its sole director.
She is also a homeowner in the Scheme.

[3] The appellant claimed, as against the first respondent, transfer of the property
and, in the alternative, as against the first and second respondents jointly and severally,

damages. In its plea, the first respondent asserted that clause 22.1 of the sale agreement
constituted a suspensive condition, the fulfilment of which had become impossible when
the HOA had resolved in a meeting of its trustees on 9 February 2016 not to sign the
undertaking envisaged by that provision. Thus, the sale agreement was rendered void
and the first respondent was released from its obligations.

[4] The issue for determination in the appeal will be best understood against the
common cause factual background that follows. In 2013, before the sale of the
property, Ms Lefson put in motion a plan to remove the property from the Scheme so
that it would revert to the land register as a separate erf. This was to enable her to
market the property for a sale unencumbered by the provisions of the Act and the
Body Corporate’s rules. The Act required an application for the subdivision and the
consent of all the members of the Body Corporate. The Constitution of the Body
Corporate also required the consent of all the members.

[5] To obtain the consent of the members of the Body Corporate the first respondent
and Ms Lefson agreed to furnish the Body Corporate and the HOA with a series of
undertakings. Ms Lefson also agreed to pay the Body Corporate the sum of R300 000
as consideration for its members agreeing to the removal of the property from the
Scheme. She furnished the Body Corporate with the written Undertakings and
Consents (the Undertaking) and the Body Corporate approved the removal of the
property from the Scheme. The dispute between the parties turns on the refusal by
the HOA to sign the envisaged undertaking.

[6] The appellant had instructed an attorney and conveyancer, Ms Debora Gouws
(Ms Gouws),1 to prepare the sale agreement. Ms Gouws prepared the sale agreement
on the basis that transfer and payment of the full purchase price to Ms Lefson would
take place when she had finalized the removal of the property from the Scheme. The sale
agreement also provided that the appellant would have the right to resile from the
agreement if Ms Lefson failed to complete the process within twelve months.2

1 Ms Gouws is the attorney and conveyancer who drew up the Constitution of the Estate in November
2002 practising at Mallinicks Inc at that time and specialised in the field of sectional title development.
2 Clause 10 of the sale agreement.

[7] Clause 22 of the sale agreement, upon which the appeal turns, provides:
‘22.
The whole of this Agreement is subject to the following condition[s] precedent
being met prior to the transfer date (and prior to the Purchaser having to furnish
the balance of the payment of the purchase price in cash to the Conveyancers as
set out above):

22.1 The Seller furnishing the Purchaser with a copy of the signed Undertakings
and Consents (“Undertaking”) provided by the Seller and Ms E Lefson to
and in favour of the Amphitheatre Body Corporate and the St John’s Home
Owners Association (the Association);

22.2 The Seller furnishing the Purchaser with proof of the seller having met each
and every condition in the Undertaking, including the payment of the
R300 000,00 to the said Body Corporate

22.3
The Seller obtaining the written confirmation from the Association that the
Purchaser, as the owner of Property “A”, shall, in perpetuity, be allowed
unfettered access to Property “A”, through the main security entrance for
St John’s Estate (ie: over land/roads owned by the Association). The Seller
is to ensure, at its cost, that this right of access is embodied in the title
deeds of both property “A” (once the erf has been created for the Manor
House) as well as in the title deed for the road erf belonging to the
Association; alternatively, that this right of access is embodied in the
Constitution of the Association.

22.4 The Seller obtaining the written confirmation from the Association that upon
transfer of Property “A”, as a separate erf to the Purchaser, that such erf
shall remain a part of the Association and accordingly the Purchaser shall
become a member of the Association and shall be bound by its
Constitution, upon taking transfer of the erf. To this end, the Seller shall, in
obtaining such written confirmation from the Association, also obtain the
Association’s confirmation that it shall amend its Constitution to include the
erf (Property “A”).

22.5 The Seller simultaneously with or before the transfer of the Properties to
the Purchaser, sells and transfers parking bays 13 and 16 and store room
34 to other members of The Amphitheatre sectional title scheme, as
provided for in paragraph B1.5 in the Undertaking.’ (Emphasis added.)

[8] Prior to the signing of the sale agreement, Ms Gouws requested
Mr Blackenberg to provide her with a copy of a fully signed Undertaking for her file. On

28 October 2014 the appellant asked Ms Gouws if the Undertaking had been signed
by the Body Corporate and HOA. Ms Gouws enquired of Mr Blackenberg, who
assured her on the same day that it had been signed. But, subsequently, on
6 November 2014, she was informed that the copy that was signed by both the Body
Corporate and HOA could not be found and that Ms Lefson would table the matter at
the next meeting of the Board of Trustees of the HOA.

[9] On 21 November 2014 Ms Gouws, possessed of the Undertaking signed only
by the Body Corporate, addressed an email to Mr Blackenberg with a draft agreement
of sale attached in which she said:
‘Herewith [the] draft agreement for you to go over and consider all conditions and terms .
. .’
On 27 November 2014, Mr Truter, one of the trustees confirmed that the Undertaking
was not signed by the HOA. Armed with this information and knowledge, on the same
day, Ms Gouws forged ahead and emailed the offer to purchase the Manor House to
Mr Blackenberg. Ms Lefson accepted the offer by signing the sale agreement on 3
December 2014.

[10] The appellant paid the required deposit and Ms Lefson initiated the process
of removing the property from the Scheme by briefing a town planner to attend to
obtaining the necessary regulatory approvals, including the subdivision of the
property. This process proved to be slower than Ms Lefson anticipated. She became
frustrated and asked the appellant on various occasions during 2015 to take transfer
of the property before the subdivision was completed. The appellant declined on each
occasion.

[11] On 30 October 2015 Mr Blackenberg formally informed Ms Gouws that the
HOA had never signed the agreement as the parties contemplated. On 9 November
2015, according to the minutes of the trustees of the HOA, a resolution was adopted
not to sign the agreement at that stage, pending legal advice. In a letter dated 27
November 2015, Mr Blackenberg informed Ms Gouws of that decision of the HOA.

[12] On 30 November 2015, the appellant proposed a written amendment to the
sale agreement to the effect that he takes transfer of the property as sections, exactly

as Ms Lefson had proposed unsuccessfully much earlier in the year; and that the
reversion of the land register only occurs thereafter subject to certain new terms. On
3 December 2015, Ms Lefson rejected the proposal and asserted that clause 22.1
was a suspensive condition and that the sale agreement had lapsed because it had
become impossible for her to furnish the appellant with a copy of the Undertaking
signed by the HOA. She advised the appellant that ‘[i]n view of the fact that St John’s
Home Owners Association will not sign the Agreement of the Undertaking in its present
format, the seller is unable to perform in terms of the suspensive conditions due to the
circumstances beyond her control and the sale, in its present format, has therefore
lapsed . . .’.

[13] On 9 February 2016 the trustees of the HOA formally resolved that the sale
agreement was not in the interests of the homeowners in the Estate and that the
Undertaking will not be signed. This precipitated the proceedings before the high
court.

[14] In its judgment, the high court found in favour of the respondents. It found
that:
“(a) clause 22.1 constitutes a suspensive condition; (b) the HOA’s decision not to sign the
Undertakings and Consents Agreement rendered the fulfilment of the condition impossible;
(c) clause 22.1 was not solely for the benefit of the plaintiff and therefore not susceptible to
waiver by him; (d) the plaintiff had not proved fictional fulfilment of the condition in clause 22.1;
and (e) the HOA as the body vested with the interests of all home owners in the Scheme had
to sign the Undertakings and consent agreement for the sale agreement to be enforceable
between the parties. As a result, it dismissed the appellant’s claim.”

[15] A good place to start is the introduction to the sale agreement. It stipulates that
‘‘[t]he whole of this agreement is subject to the following condition precedents being
met prior to the transfer date (and prior to the purchaser having to furnish the balance
of the payment of the purchase price in cash to the conveyancers . . .)’. (Emphasis
added.)

[16] Clause 22.1 cannot be read in isolation but must be read in conjunction with
clauses 22.2 and 22.3 which provide respectively, that the seller must meet each and

every condition in the Undertaking and obtain confirmation from the HOA. The two
clauses cater for the interests of the other owners and the HOA. It must also be read
with Part C1 of the Undertaking, which states unequivocally that ‘[s]he [Ms Lefson] shall
take all the steps and do all the things necessary in her capacity as a Director of the
company and in her personal capacity to ensure that the company and all persons
who purchase or acquire from the company any part of the land to be removed from
the Scheme comply with their obligations towards the Body Corporate and the HOA
as set out in paragraph B above. . .’. (Emphasis added.)

[17] Also by making provision for three signatures the parties evidently
contemplated that it had to be signed by the three parties i.e. Ms Lefson (on behalf of
the first respondent), the Body Corporate and the HOA. The latter is the body that
represented home owners and was responsible to oversee the interests of all its
members. Thus, the HOA is the most appropriate body to approve or give consent to
the sale of the property under conditions that were beneficial to the members.

[18] Moreover, Part B3.9, B3.10 and B 3.11 of the Undertaking provided that:
‘B3.9
They [the parties to the agreement] shall signify the individual acceptance by the
Body Corporate of the benefits conferred upon it in this document, whereupon
the Body Corporate shall be individually entitled to enforce the provisions hereof
against the company and each and every subsequent successive owner in
perpetuity of any part of the land to be removed from the Scheme irrespective of
whether or not the HoA also accepts such benefits. For this purpose, and to the
extent necessary, the Chairman for the time being of the Body Corporate shall at
any time in the future be entitled to accept the benefits conferred upon the Body
Corporate in this document as against any such subsequent successive owner;
whereupon it  shall be individually entitled to enforce the provisions hereof against
any such subsequent owner . . .
B3.10
They [the parties to the agreement] consent and agree that the provisions of
paragraph B3.9  above shall also apply to the Chairman of the HOA and to the HOA
mutatis mutandis as if they were the Chairman of the Body Corporate and the
Body Corporate respectively.
B3.11
They [the parties to the agreement] consent and agree that this document
constitutes the sole memorial of the agreement hereby constituted between the
parties hereto in relation to the subject matter hereof, and that the terms hereof

shall only be capable of subsequent variation by way of written agreement
concluded between the Body Corporate, the HOA and all of the current owners
of all the land to be removed from the Scheme . . .’

[19] In short, on a straight forward interpretation of clause 22.1, read in context,
the logical conclusion must be, absent the Undertaking signed by all the parties, there
could be no valid and enforceable sale agreement. To interpret the words ‘subject to’
other than as contemplated by the parties, would give the clause a construction which
is not commercially sensible.

[20] I therefore conclude that clause 22.1 is a suspensive condition. When the HoA
refused to sign the Undertaking, it became impossible for Ms Lefson to transfer the
property. It was contended, in the alternative, that the condition which was for the sole
benefit of the appellant, had been waived by him. I cannot agree. In my view, the
requirement that the Body Corporate and HOA had to signify their assent had
obviously been inserted for the benefit of their members. Thus assuming that the
evidence established the waiver (which to my mind it did not), the condition was not
solely for the benefit of the appellant and therefore not his to waive. The result is that
the obligations never came into operation.3 This conclusion disposes of the appeal.

[21] In conclusion it is necessary to reiterate what was stated in KPMG Chartered
Accountants (SA) v Securefin Ltd & another4:
‘First, the integration (or parol evidence) rule remains part of our law.5 However, it is frequently

3 Generally speaking, a suspensive condition suspends the operation of all obligations flowing from a
contract until occurrence of a future uncertain event. If the uncertain future event does not occur, the
obligations never come into operation. See Swart v Starbuck and Others [2017] ZACC 23; 2017 (5)
SA 370 (CC) with reference to Command Protection Services (Gauteng) (Pty) Ltd t/a Maxi Security v
South African Post Office [2012] ZASCA 160; 2013 (2) SA 133 (SCA) para 21; Diggers Development
(Pty) v City of Matlosana [2011] ZASCA; [2012] 1 All SA 428 (SCA) para 29; Southern Era Resources
Ltd v Frandell NO [2009] ZASCA 150; 2010 (4) SA 200 (SCA) para 11.
4 KPMG Chartered Accountants (SA) v Securefin Ltd & another4 [2009] ZASCA 7; 2009 (4) SA 399
(SCA) para 39.
5 The essence of parol evidence rule, is explained in R H Christie and G B Bradfield Christie’s Law of
Contract in South Africa 7 ed (2016) at 226 as follows:
‘Despite its difficulties, it serves the important purposes of ensuring that where the parties have decided
that their contract should be recorded in writing and that such contract shall be the sole, complete record
of their agreement, their decision will be respected, and the resulting document, or documents, will be
accepted as the sole evidence of the terms of the contract.’

ignored by practitioners and seldom enforced by trial courts. If a document was intended to
provide a complete memorial of a jural act, extrinsic evidence may not contradict, add to or
modify its meaning (Johnson v Leal 1980 (3) SA 927 (A) at 943B). Second, interpretation is a
matter of law and not of fact and, accordingly, interpretation is a matter for the court and not
for witnesses (or, as said in common-law jurisprudence, it is not a jury question: Hodge M
Malek (ed) Phipson on Evidence (16 ed 2005) paras 33-64). Third, the rules about admissibility
of evidence in this regard do not depend on the nature of the document, whether statute,
contract or patent (Johnson & Johnson (Pty) Ltd v Kimberly-Clark Corporation and Kimberly-
Clark of South Africa (Pty) Ltd 1985 BP 126 (A) ([1985] ZASCA 132 (at www.saflii.org.za ),
1985 Burrell Patent Cases 126 (A)). Fourth, to the extent that evidence may be admissible to
contextualise the document (since “context is everything”) to establish its factual matrix or
purpose or for purposes of identification, “one must use it as conservatively as possible”
(Delmas Milling Co Ltd v Du Plessis 1955 (3) SA 447 (A) at 455B-C). The time has arrived for
us to accept that there is no merit in trying to distinguish between “background circumstances”
and “surrounding circumstances”. The distinction is artificial and, in addition, both terms are
vague and confusing. Consequently, everything tends to be admitted. The terms “context” or
“factual matrix” ought to suffice. (See Van der Westhuizen v Arnold 2002 (6) (SCA) paras 22
and 23, and Masstores (Pty) Ltd v Murray & Roberts Construction (Pty) Ltd & another [2008]
(6) SA 654 (SCA) para 7.).’ (Emphasis added.)’6

At page 228, the rule is qualified as follows:
‘One does not need a very fertile imagination to see how, necessary as the rule is, it can lead to injustice
if rigorously applied, by excluding evidence of what the parties really agreed. It has therefore been the
courts’ constant endeavour to prevent the rule being used as an engine of fraud by a party who knows
full well that the written contract does not represent the true agreement. In the nature of things, this
endeavour to achieve a fair result without destroying the advantages inherent in written contracts has
led to some decisions that are difficult to reconcile. Perhaps the best way to look at the rule is to see it
as a backstop that comes into operation only in the absence of some more dominant rule, giving way
to the rules concerning misrepresentation, fraud, duress, undue influence, illegality or failure to comply
with the terms of a statute, mistake, and rectification. If it did not do so, none of these rules would apply
to written contracts, which would be absurd. In all such cases, of course, the burden is on a party who
has signed a written contract to displace the maxim caveat subscriptor by proving lack of the necessary
animus.’
For a useful discussion on the parol evidence rule, including criticisms relating to its application and
exceptions thereto, see S W J van der Merwe et al Contract General Principles 4 ed (2012) at 148 et
seq.
6 City of Tshwane Metropolitan Municipality v Blair Atholl Homeowners Association [2018] ZASCA 176;
[2019] 1 All SA 291 (SCA); 2019 (3) SA 398 (SCA) para 64 and 65.

[22] In this matter, despite the case turning on a narrow point of interpretation, the
parties succeeded in generating a record in excess of a thousand pages. Much of the
evidence was irrelevant to that narrow point.

[23] In the result, the appeal is dismissed with costs.

BC MOCUMIE
JUDGE OF APPEAL

Appearances

Counsel for Appellant:
J G Dickerson SC and L C Kelly

Instructed by

Werksmans Attorneys, Cape Town

Lovius Block, Bloemfontein

Counsel for Respondents: R J Howie
Instructed by

Matthew Walton & Associates Inc. Westlake

Honey Attorneys, Bloemfontein
SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

30 March 2021

STATUS

Immediate

Chester v Snowy Owl Properties and Another (Case no 23/2020) [2021] ZASCA 30 (30
March 2021)

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

Today the Supreme Court of Appeal (SCA) handed down its judgment on the appellants’
appeal against the order of the Western Cape High Court, Cape Town (high court).

At the heart of the appeal was the interpretation of clause 22.1 of the sales agreement
concluded between the parties in respect of The Manor house (a heritage property dating back
to the 1760’s) situated in Oranjezicht, Cape Town together with adjacent properties situated
within the Amphitheatre Sectional Titles Scheme regulated by the Amphitheatre Body
Corporate constituted in terms of s 36 of the Sectional Titles Act 95 of 1986. The owners of
properties within the St John’s Estate including the Body Corporate were members of the St
Johns Home Owners Association (HOA).

The high court, agreed with the respondent, Ms Lefson that clause 22.1 contained suspensive
conditions that inter alia, the HOA as the body vested with the interests of all home owners in
the Scheme had to sign the Undertakings and Consents Agreement for the sale to be
enforceable between the parties.

Consequently, and in the absence of the signature of the HOA, the high court dismissed the
claims of the appellant for damages arising out of a purported breach of the sales agreement
and those suffered as a result of the failure of the sale to succeed. The SCA confirmed the
order of the high court and dismissed the appeal with costs.