THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT
Case No: 65/09

JOSEPH MNCEDISI NKENGANA
First Appellant
NOMBEKO FELICIA NKENGANA
Second Appellant
and
STEPHANUS VAN DER WALT SCHNETLER
First Respondent
STANDARD BANK OF SOUTH AFRICA LTD Second Respondent

Neutral citation:  Nkengana v Schnetler (65/09) [2010] ZASCA 64
(7 May 2010)
Coram:
MPATI P, MHLANTLA, SHONGWE and TSHIQI
JJA and GRIESEL AJA
Heard:
22 February 2010
Delivered:
7 May 2010
Summary:
Contract – sale of land – tender – whether tender of
performance
by
purchasers
(appellants)
was
sufficient to entitle them to specific performance.

__________________________________________________________________

ORDER
____________________________________________________________________
On appeal from: Eastern Cape High Court (Grahamstown) (Jansen,
Sandi and Revelas JJ, sitting as court of appeal):
1.
The appeal succeeds with costs, excluding the costs arising from
the inclusion of volumes 2 and 3 as part of the record on appeal.
2.
The order of the full court is set aside and replaced with the
following:
‘(1)
The appeal succeeds with costs.
(2)
The order of the court below is set aside and replaced with the
following:
(a)
The first respondent is ordered to take all necessary steps and to
sign all necessary documents to effect transfer to the first and
second applicants of the property, described as:

Portion 43, Portion of Portion 43 of the farm Draaifontein No
407, in the Division of Uitenhage, Eastern Cape Province.

In extent 5,8167 (five comma eight one six seven) hectares;

against the furnishing, by the first and second appellants, of a
guarantee for payment of the following amounts:

(i)
R89 805.17;
(ii)
the outstanding amount on the first respondent’s bond
with the second respondent (account number 214201481);
(iii)
transfer costs and transfer duty (if any) payable in respect
of the said transfer;
provided that in the event of the aggregate amount referred to in
paras (i) and (ii) above not exceeding R260 000, then the
appellants are to pay to the first respondent an additional amount
equivalent to the difference between R260 000 and the aggregate
amounts as set out in paras (i) and (ii) above;

(b)
The second respondent is ordered to take all necessary steps to
facilitate the cancellation of the mortgage bond registered over
the property against the furnishing by the appellants of a
guarantee for the amount outstanding in respect of the mortgage
bond payable against registration of transfer of the property into
the name of the first and second applicants;
(c)
Should the first and/or the second respondent fail to take the
necessary steps referred to in paras (a) and (b) above, the Sheriff
of this court is authorised to sign any documents and to take such
steps on their behalf as may be necessary to give effect to this
order;
(d)
The first and second applicants are ordered jointly and severally
to pay the costs incurred by the first respondent up to and
including the date of delivery of the applicants’ replying affidavit

and the first respondent is ordered to pay the applicants’ costs of
the application incurred after that date.’
____________________________________________________________________
JUDGMENT
____________________________________________________________________
GRIESEL AJA (MPATI P, MHLANTLA, SHONGWE and TSHIQI JJA
concurring):
[1] This is an appeal against a judgment of the full court of the
Eastern Cape High Court, Grahamstown, dismissing an appeal against a
judgment of a single judge (Van der Byl AJ).1 This further appeal comes
before us with special leave granted by this court.
[2] The claim originates from a written deed of sale entered into on
22 December 2000 between the appellants (as purchasers) and the first
respondent and his late wife (as sellers).2 In terms of the contract the
appellants bought the property in question, situated in Uitenhage, from
the respondent at a purchase price of R260 000. This amount was
payable in four equal monthly instalments of R50 000 with effect from
31 December 2000, with a final instalment of R60 000 due on 30 April
2001.

1 The judgment of the full court has been reported as Nkengana and another v Schnetler and another
[2008] ZAECHC 160; 2008 JDR 1241 (E).
2 Standard Bank of South Africa Limited, who holds a mortgage bond over the property in question,
was joined as the second respondent, but took no part in the litigation. For convenience I accordingly
refer to the first respondent simply as ‘the respondent’ and to the second respondent as ‘Standard
Bank’ or simply ‘the bank’.

[3] Soon after the conclusion of the agreement it became apparent
that the appellants were not in a position to make payment of the
instalments as stipulated in the contract. It is common cause that the
parties thereupon concluded an oral agreement to the effect that, instead
of paying the purchase price by way of the instalments and on the dates
as originally agreed, the appellants would pay the respondent’s monthly
bond instalments to Standard Bank. (It appears from the evidence that
the outstanding balance in respect of the bond amounted at that stage to
R203 635.76.)
[4] There is a dispute between the parties as to the exact terms of the
oral agreement, to which I shall revert later. It is common cause,
however, that the appellants did in fact make certain payments into the
respondent’s bond account with Standard Bank, albeit somewhat
irregularly and in varying amounts. By February 2007 the appellants
claimed to have paid a total amount of some R238 054.83 towards the
purchase price. Through their attorneys, they accordingly addressed a
letter of demand to the respondent claiming transfer of the property
against payment of the outstanding balance of R21 945.17. The
appellants received no response to their tender and they accordingly
proceeded to launch the application which gave rise to the present
appeal, claiming specific performance in terms of the deed of sale.
[5] The appellants attached a schedule to their founding affidavit
showing how the amount of R238 054.83 was made up. They also, in the
founding affidavit, increased their original offer by tendering, in
addition, payment of the balance outstanding on the mortgage bond
registered in favour of Standard Bank, together with all transfer costs

and transfer duty. (The outstanding balance on the bond at that stage,
according to the respondent, amounted to R180 282.72.)
[6] In his answering affidavit, the respondent furnished his version
of the oral agreement. He alleged that, because the appellants could not
manage to pay the purchase price as stipulated and because the
appellants had already taken occupation of the property, it was agreed
that the appellants would pay the monthly instalments owing in respect
of the respondent’s mortgage bond with the bank until such time as the
appellants could manage to pay the full purchase price. According to the
respondent, the instalments would be paid as occupational rent.3 With
reference to the appellants’ schedule of payments, the respondent
disputed some of the alleged payments and denied that a total amount of
R238 054.83 had been paid, as claimed by the appellants. In this regard
he pointed out –
(a)
that some payments reflected in the appellants’ schedule,
totalling R40 100, had been made in respect of the sale of
movables (furniture, etc) to the appellants;
(b)
that some of the alleged payments reflected in the schedule had
been reversed by the bank;

3 This is how the respondent expressed the terms of the oral agreement:
‘Wat wel ooreengekom was, is dat die applikante tegemoet gekom sou word aangesien hulle nie
daarin kon slaag om die koopprys soos wat ooreengekom is te betaal nie en omdat hulle okkupasie
van die perseel gehad het, is daar ooreengekom dat hulle die maandelikse verbandpaaiement sal betaal
as okkupasiehuur tot en met hulle die geleentheid het om die koopprys te bekom.’

(c)
that a payment of R23 117.06, reflected in the schedule and made
on 10 December 2004, was in respect of legal costs incurred in
order to stave off a pending sale in execution because the bond
instalments were in arrear;
(d)
that further payments made by the appellants, totalling some
R31 000, were not reflected in their schedule.
In summary, he denied that the tender made by the appellants was
sufficient and accordingly denied that he was liable to pass transfer of
the property to them.
[7] In reply, the appellants categorically denied that there was any
agreement to pay occupational interest. They pointed out, instead, that
payment of the bond instalments comprised capital as well as interest. In
paying the bond instalments, therefore, they would at the same time be
reducing the capital outstanding. As for the schedule of payments
actually made, they accepted the correctness of the respondent’s alle-
gations in paras (b) and (d) above. They accordingly drew up an
amended reconciliation, resulting in an increased tender of payment of
an additional amount of R67 860.
[8] From the way in which the matter was presented in the papers
and from the reasoning of the courts below, it would seem as if the focus
largely fell on the numerous factual disputes regarding past payments
and on the exact terms of the oral agreement. In this regard, many
arithmetical calculations were done by counsel on both sides in an
attempt to demonstrate that the appellants’ tender was or was not

sufficient. The appellants also argued that the oral agreement, insofar as
it purported to vary the original contract of sale, was of no force and
effect. They accordingly sought to enforce the original deed of sale. The
respondent, on the other hand, contended that the oral agreement
pertained solely to the payment of occupational interest and that agree-
ments of that nature may validly be concluded orally. In the court of first
instance, Van der Byl AJ accepted the respondent’s version regarding the
terms of the oral agreement in accordance with the principles laid down
in Plascon-Evans.4 He also accepted the respondent’s contentions
regarding the validity of the oral agreement. In the result, so it was held,
the appellants’ tender fell far short of the purchase price of R260 000,
with the result that the application was dismissed with costs. On appeal,
the full court confirmed this finding.
[9] In the view that I take of the matter, it is not necessary to come to
any final decision on any of the disputes regarding past payments, or on
the question whether or not the oral agreement is void. In my view, the
true issue for determination is simply whether or not the appellants’ final
tender, as contained in their replying affidavit, is sufficient.
[10] In this regard, counsel for the respondent protested, albeit
somewhat faintly, at the fact that the respondent’s further increased
tender was raised for the first time in the appellants’ replying affidavit,
the argument being based on the trite principle that it is incumbent upon
an applicant to make out its case in its founding affidavit and that
ordinarily it is not permissible to make or supplement a case in reply. In

4 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E–I.

my view, there are at least two answers to this argument: first, the
respondent did not apply to strike out the new matter or to file a response
thereto, as he could have done. Second, the rule on which the respondent
relies is not an absolute one. Thus, if the new matter in the replying
affidavit is in answer to a defence raised by the respondent and is not
such that it should have been included in the founding affidavit in order
to set out a cause of action, the court will refuse an application to strike
out.5 In any event, the present tendency seems to permit greater
flexibility with regard to the admission of new matter, at least in the
absence of prejudice, and to apply the rule with a fair measure of
common sense.6
[11] What happened in this instance was that the respondent, in his
answering affidavit, disputed some of the items forming part of the
appellants’ reconciliation in respect of payments allegedly made. In
reply, the appellants accepted some of the respondent’s corrections
which, in turn, required a commensurate increase in the tenders made
earlier. In the circumstances, the appellants were entitled, in my view, to
rely on the further tender contained in their replying affidavit and the
courts below erred in failing to attach due weight to such tender.
[12] It is settled law that every party to a binding contract who is
ready to carry out its own obligations under it has a right to demand from
the other party, so far as it is possible, performance of that other party’s

5 Cilliers et al, Herbstein &Van Winsen: The Civil Practice of the High Courts of South Africa 5 ed
Vol 1 p 440.
6 Harms Civil Practice in the Supreme Court B6.37; Smith v Kwanonqubela Town Council [1999] 4
All SA 331; 1999 (4) SA 947 (SCA) para 15.

obligations in terms of the contract.7 Accordingly it was not disputed on
behalf of the respondent that, for so long as the original deed of sale
remains uncancelled (as in this instance), it remains open to the
appellants – even at this late stage – to claim specific performance of the
original agreement while tendering performance of their reciprocal
obligations.
[13] In order to be a valid tender where performance consists of pay-
ment of money, the tender must be for payment of the full amount
owing, otherwise the creditor is entitled to refuse the tender and the
debtor is not entitled to specific performance.8 Here, the appellants have,
at different stages and in differing amounts, tendered performance of
their own obligations in terms of the contract. The final tender made on
their behalf was for payment of the outstanding balance on the bond
(amounting to R180 282.72 as at 21 July 2007 – three days after the
application was launched) plus the amount of R21 945.17 originally
offered, plus the further amount of R67 860 tendered in the replying
affidavit. Thus the overall tender amounts to a total of R270 087.89,
which quite clearly exceeds the amount of the original purchase price.
On the face of it, therefore, it would appear as if the tender made by the
appellants was sufficient to entitle them to specific performance – even if
all disputes regarding past payments were to be disregarded.
[14] During argument before us, the question was raised with counsel
for the appellants, on the assumption that they were in mora ex re due to

7 Farmers’ Co-operative Society v Berry 1912 AD 343 at 350.
8 See Christie The Law of Contract in South Africa 5 ed p 405.

non-payment of the purchase price, whether the running of interest a
tempore morae did not affect the calculation of the total amount owing
by them. Although this aspect was not pertinently raised by any of the
parties on the papers or canvassed in the written heads of argument, the
answer appears to be that there can be no mora ex re if the creditor has
expressly or tacitly waived his right to rely on the time clause or is
estopped from relying on it.9 On the facts of the present case it appears to
be clear, on the respondent’s own version, that this is indeed what
happened: the respondent, in failing strictly to enforce the terms of the
original agreement and in accepting payment of bond instalments
instead, had unequivocally waived his right to rely on the time clause.
The fact that this may have happened orally or by conduct, does not
invalidate such waiver.10 In the circumstances, it would appear that the
respondent would be precluded from relying on the principles of mora ex
re. Had he sought to deny that he had waived reliance on the original
time clause, he could have been met with a successful reply based on
estoppel. However, in view of the fact that none of these aspects have
been pertinently raised on the papers or fully argued before us, it is not
necessary to express any final views in this regard and I accordingly
approach the matter on the basis that the issue of mora interest is
irrelevant to a determination of the present appeal.
[15] It follows from the foregoing that the appellants are, in principle,
entitled to an order for specific performance, essentially in the terms set
out in the notice of motion. In view of the lapse of time since these

9 Christie op cit p 500.
10 Cf Barnard v Thelander 1977 (3) SA 932 (C) at 940F–G and the authorities referred to therein.

proceedings were launched, it is uncertain what the current position is
regarding the balance on the bond. To the extent that the current balance
owing in respect of the bond may be less than the balance as at the time
the tender was made, counsel for the appellants made a proposal which,
in my view, overcomes this difficulty. He suggested that the appellants
be ordered to pay the amounts tendered in their replying affidavit,11
provided that should the aggregate of the amounts tendered be less than
the original purchase price of R260 000, then the appellants are to pay to
the respondent an additional amount equivalent to the difference between
R260 000 and the aggregate amount of the tender. A provision to this
effect will accordingly be incorporated in the order that I propose to
make.
[16] I wish to emphasise that, insofar as we have found it unnecessary
to resolve the factual disputes between the parties arising from collateral
agreements regarding the purchase of furniture, the payment of rent and
so on, nothing in this judgment should be seen as precluding the
respondent, if so advised, from pursuing his remedies arising from such
disputes. I might mention, though, that I am not persuaded that the court
below (and the court of first instance) was wrong in holding that the oral
agreement relating to occupational rent did not constitute a variation of
the written agreement of sale.
[17] With regard to costs, it is necessary briefly to refer to two
aspects:  first, given the fact that the appellants’ first two tenders were
clearly inadequate, the respondent was entitled to resist the claim for

11 See paras 7 and 13 above.

specific performance until delivery of the appellants’ replying affidavit.
It would accordingly be fair, in my view, to hold the appellants liable for
the costs incurred up to and including the date of their final tender
(coinciding with delivery of their replying affidavit) and to order the
respondent to pay the costs incurred subsequent to that date. The second
aspect relates to the record on appeal. Included in the record before us, in
volumes 2 and 3, was a full transcript of the oral arguments of counsel
before both courts below as well as a copy of the petition for special
leave to appeal to this court, together with the affidavit filed in
opposition thereto. It is clear from the correspondence that those docu-
ments were included as part of the record at the appellants’ insistence. In
my view, they were ill-advised to do so, bearing in mind this court’s
repeated admonitions against the inclusion of unnecessary documents in
appeal records.12 In the circumstances, it would not be unfair to disallow
the costs arising from the inclusion of volumes 2 and 3 as part of the
record.
[18] For these reasons I make the following order:
1.
The appeal succeeds with costs, excluding the costs arising from
the inclusion of volumes 2 and 3 as part of the record on appeal.
2.
The order of the full court is set aside and replaced with the
following:

12 See eg Government of the RSA v Maskam Boukontrakteurs (Edms) Bpk 1984 (1) SA 680 (A) at
692E–693A; Salviati & Santori (Pty) Ltd v Primesite Outdoor Advertising (Pty) Ltd 2001 (3) SA 766
(SCA) paras 16–17.

‘(1)
The appeal succeeds with costs.
(2)
The order of the court below is set aside and replaced with the
following:
(a)
The first respondent is ordered to take all necessary steps and to
sign all necessary documents to effect transfer to the first and
second applicants of the property, described as:

Portion 43, Portion of Portion 43 of the farm Draaifontein No
407, in the Division of Uitenhage, Eastern Cape Province.

In extent 5,8167 (five comma eight one six seven) hectares;

against the furnishing, by the first and second appellants, of a
guarantee for payment of the following amounts:

(i)
R89 805.17;
(ii)
the outstanding amount on the first respondent’s bond
with the second respondent (account number 214201481);
(iii)
transfer costs and transfer duty (if any) payable in respect
of the said transfer;
provided that in the event of the aggregate amount referred to in
paras (i) and (ii) above not exceeding R260 000, then the
appellants are to pay to the first respondent an additional amount
equivalent to the difference between R260 000 and the aggregate
amounts as set out in paras (i) and (ii) above;

(b)
The second respondent is ordered to take all necessary steps to
facilitate the cancellation of the mortgage bond registered over
the property against the furnishing by the appellants of a
guarantee for the amount outstanding in respect of the mortgage
bond payable against registration of transfer of the property into
the name of the first and second applicants;
(c)
Should the first and/or the second respondent fail to take the
necessary steps, referred to in paras (a) and (b) above, the Sheriff
of this court is authorised to sign any documents and to take such
steps on their behalf as may be necessary to give effect to this
order;
(d)
The first and second applicants are ordered jointly and severally
to pay the costs incurred by the first respondent up to and
including the date of delivery of the applicants’ replying affidavit
and the first respondent is ordered to pay the applicants’ costs of
the application incurred after that date.’

B M GRIESEL
Acting Judge of Appeal

APPEARANCES:
FOR APPELLANT:               A Beyleveld SC
Instructed by:

Spilkins Inc, Port Elizabeth

Naudes Attorneys, Bloemfontein

FOR RESPONDENT:
G Jacobs

Instructed by:

Riette Oosthuizen Attorneys, Pretoria

Spangenberg Zietsman & Bloem, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
7 May 2010
Status:
Immediate

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.
* * *
J M and N F NKENGANA v S vd W SCHNETLER
– Case No 65/09

The Supreme Court of Appeal today upheld an appeal by Mr and Mrs Nkengana (the
appellants) against a decision of the full court of the Eastern Cape High Court,
Grahamstown. The appellants launched an application arising from a deed of sale
entered into between them and Mr S vd W Schnetler (the respondent) during
December 2000 in respect of a property situated in Uitenhage. In terms of the
agreement, the purchase price of R260 000 was to be paid in four monthly instal-
ments of R50 000 each, with a final instalment of R60 000. However, the appellants
were not in a position to make payment of the instalments as stipulated in the
agreement. The parties thereupon orally agreed that, instead of paying the purchase
price by way of the instalments and on the dates as originally agreed, the appellants
would pay the respondent’s monthly bond instalments to Standard Bank until they

were able to pay the full purchase price.
Approximately six years later the appellants claimed to have paid a total amount of
some R238 054.83 towards the purchase price and accordingly claimed transfer
against payment of the outstanding balance of R21 945.17. There was a dispute
between the parties as to the exact amount paid by the appellants. There was also a
dispute as to the terms of the oral agreement, the respondent contending that the
parties agreed that the payment of bond instalments would be regarded as
occupational rent. In reply, the appellants denied that the instalments were to be
regarded as occupational rent. They also increased their original tender by offering
to pay and additional amount of R67 860 plus the outstanding balance in respect of
the bond, which amounted to R180 282.72 at that stage.
The trial court and the full court accepted the respondent’s version of the oral
agreement and held that it was valid, being a separate agreement in respect of
occupational rent.
On appeal, the SCA held that it was unnecessary to decide whether or not the oral
agreement was valid, as the final tender made by the appellants was sufficient to
entitle them to claim transfer of the property. The court accordingly upheld the
appeal with costs and ordered the respondent to take the necessary steps to transfer
the property to the appellants against payment of the amounts tendered.

--ends--