THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

REPORTABLE
Case number: 255/07

In the matter between:

MICHAEL HUGH BLAKE
1st Appellant
ODHIN INVESTMENTS CC
2nd Appellant

and

ZAHEER CASSIM
1st Respondent
THEODOR WILHELM VAN DEN HEEVEN NNO
2nd Respondent

CORAM:

MPATI AP, CAMERON, CLOETE, PONNAN JJA and LEACH
AJA

HEARD:

5 MAY 2008

DELIVERED:
29 MAY 2008

Summary:

Contract – sale of immovable property – no obligation on seller to
define form of guarantee before making demand for furnishing it – written agreement
stipulates clearly time when guarantees to be furnished – seller entitled to cancel for failure
to furnish guarantees on due date.

Neutral citation:
M H BLAKE AND ANOTHER v Z CASSIM AND ANOTHER
(255/2007) [2008] ZASCA 67 ( 29 MAY 2008)

_____________________________________________________________________

MPATI AP:

[1] This appeal concerns the interpretation of certain clauses in a written agreement of
sale of a 100% member’s interest in the second appellant, a close corporation (the CC).
The issue in the appeal is whether the purchaser, Mr M I Mia, and subsequently the
respondents, who are the trustees in Mr Mia’s insolvent estate, breached their contractual
obligations, as buyers, by failing to deliver acceptable guarantees for payment of the
balance of the purchase price in terms of the agreement.  A  related issue, which is crucial
to the appeal, is whether the first appellant validly and lawfully cancelled the agreement
pursuant to the alleged breach.

[2] On 15 April 2002 Mr Mia and a consortium of six persons, represented by the first
appellant, who was part of the consortium, concluded a written agreement in terms of which
Mr Mia purchased from the consortium a 100% member’s interest in the CC.  The purchase
price was R1 600 000.00.  The consortium was engaged in the development of immovable
property on the north coast of KwaZulu-Natal, which was to be marketed under a sectional
title scheme to be known as ‘Lazy Lizard’.  The agreement records that the developer,
Dusky Dolphin Share Block (Proprietary) Limited, is the registered owner of the immovable
property concerned and that it was in the process of erecting, or had completed the
erection of, a sectional title scheme (the scheme).  The developer intended to apply, upon
erection of sectional title units forming part of the first phase of the scheme, for the
registration of the sectional plan in respect of such units and the opening of a sectional title
register incorporating them.

[3] The agreement records further that upon the opening of the register ‘and upon
compliance with the provisions of’ the agreement, a unit, which it is common cause was a
penthouse on the top floor of the proposed building, was to be transferred to the second
appellant at the purchaser’s expense.  The unit was thus to be an asset in the second
appellant.

[4] Clause 8.1 of the agreement stipulates, among other things, that as soon as

reasonably possible after signature thereof the sellers shall ‘deliver and hand over’ to their
attorneys, pending fulfilment by the purchaser of his obligations, an amended founding
statement (form CK 2) duly signed, resigning their membership of the second appellant.
This would enable the registration of Mr Mia as sole member of the second appellant.

[5] The terms on which the purchase price was to be paid are partly set out in a
schedule to the written agreement.  The relevant parts of the schedule provide:
‘A .
. . .
B.
. . .
C.
. . .
D.
R1 600 000.00

(Purchase Price – words and figures)

D.1
R50 000.00 (FIFTY THOUSAND RAND)

(Deposit – words and figures)

D.2
R1 550 000.00 (ONE MILLION FIVE HUNDRED AND FIFTY THOUSAND)

(Balance of Purchase Price – words and figures)

D.2.1.1 R250 000.00 (TWO HUNDRED AND FIFTY THOUSAND)

(First guarantee – words and figures)

D.2.1.2

(First date to furnish guarantee)

D.2.2.1 R1 300 000.00 (ONE MILION THREE HUNDRED THOUSAND)

(Second guarantee – words and figures)

D.2.2.2

(Date to furnish second guarantee)

. . .’

It will be noted that no dates were stipulated for the furnishing of the guarantees.

[6] Clause 5 of the agreement reads:
‘PAYMENT OF THE PURCHASE PRICE
5.1
A deposit of SEE ITEM D.1 OF THE SCHEDULE shall be paid to the Attorneys within 7 (Seven) days
of signature hereof by the parties to this agreement;
5.2
The balance of the purchase price in the amount of SEE ITEM D.2 OF THE SCHEDULE shall be paid
by the Purchasers to the Attorneys on transfer date and pending the transfer date shall be secured as
follows:-
5.2.1
a Bank guarantee acceptable to the Attorneys for the amount of SEE ITEM D.2.1.1 shall be
furnished to the Attorneys on or before SEE ITEM D.2.1.2 OF THE SCHEDULE;
5.2.2
a Bank guarantee acceptable to the Attorneys for the amount of SEE ITEM D.2.2.1 OF THE
SCHEDULE shall be furnished to the Attorneys on or before SEE ITEM D.2.2.2 OF THE
SCHEDULE;
. . .’

Clause 20 of the written agreement contains special conditions which are in the following
terms:
’20.1
. . .
20.2
With reference to clause D of the schedule, it is recorded that the said guarantee is to be furnished
from the proceeds of the sale of the purchaser’s property, namely 5 Villa La Mer, North Beach Road,
Umdloti.
20.2.1 The purchaser shall have 12 months from date hereof, to sell the said property.  At the end of the said
12 months period, this condition shall expire and guarantees for the full purchase price shall be
provided by the purchaser.’

The term ‘transfer’ is defined in the written agreement as ‘the date of registration in the
Registrar of Close Corporations Office, Pretoria, of the Amended Founding Statement (CK
2) reflecting the Purchasers as owners of the members’ interest and the words “transfer
date” shall have the corresponding meaning’.

[7] Subsequent to the conclusion of the agreement, the first appellant assumed all the
sellers’ rights and obligations under it.  It is not in dispute that Mr Mia only paid R25 000.00
of the agreed deposit of R50 000.00.  There were some skirmishes between the parties to
the agreement arising from Mr Mia’s failure to pay the deposit in full, but these are not
germane for the determination of this appeal.  Mr Mia’s estate was, however, provisionally

sequestrated on 14 October 2003 and, finally, on 25 November 2003.  On 18 December
2003 the respondents were appointed as joint trustees in Mr Mia’s insolvent estate.
Following their appointment the respondents advised the first appellant’s attorneys, by letter
dated 23 December 2003 that they intended to proceed with the purchase, on behalf of the
insolvent estate, of the members’ interest in the CC.

[8] Further correspondence passed between the parties relating to the furnishing of
guarantees for the balance of the purchase price.  On 21 January 2004 the first appellant’s
attorneys (Mooney Ford Attorneys) placed the respondent in mora.  The relevant portion of
the letter reads:
‘ . . . you have failed to deliver the bank guarantees referred to in clauses D.2.1.1 and D.2.2.1 of the schedule
to the Sale Agreement, notwithstanding our request for same.

Notice is hereby given to you in terms of clause 13 of the Sale agreement that you are to remedy your
aforesaid breaches within FOURTEEN (14) days after the date of posting hereof.’

Should you fail to remedy your breach aforesaid, our instructions are that the seller intends cancelling the
Agreement without prejudice to the seller’s rights to claim damages.

. . .’
Clause 13 of the agreement stipulates that –
‘[i]n the event of either party committing any breach of the terms of this agreement, and failing to remedy such
breach within 14 days of the date of the posting by prepaid registered post by the aggrieved party to the
offending party requiring the remedying of such breach to the address chosen by the offending party as his
domicilium citandi et executandi below, then without any further notice the aggrieved party shall be entitled
either to claim specific performance under this agreement or alternatively to cancel this agreement.
. . .’

In response1 the respondents confirmed holding R250 000.00 in trust2 for payment to
Mooney Ford Attorneys and attached to their letter an undertaking by their attorneys to pay
that amount.  The respondents also expressed disagreement with the contention on behalf
of the first appellant that the second guarantee (of R1 300 000.00) was due and averred

By letter dated 23 December 2003, but faxed in January 2004.

that it would be due ‘on date of transfer’.3

[9] However, on 2 February 2004 the respondents wrote to Mooney Ford Attorneys
advising that they were ‘in a position to deliver guarantees for the full amount of
R1 550 000.00’.  The last paragraph of the letter reads:
‘We are issuing the guarantee for the balance [of the] purchase price in favour of your firm to comply with the
conditions of the contract.  Should you wish to amend the guarantee, please let us know what your guarantee
requirements are.’

In a letter dated 4 February 2004 Mooney Ford Attorneys directed that the guarantee ‘is to
be expressed as being payable upon written confirmation’ of the following:
‘1.
Opening of the sectional register in respect of the scheme to be known as Lazy Lizard.
2.
Transfer from Dusky Dolphin CC to Insolvent Estate M I Mia of proposed unit 702 in the scheme to be
known as Lazy Lizard.
3.
Release of the property described in 1 above from the operation of the existing [bond] by Dusky
Dolphin CC in favour of Absa Bank Limited.’4

On the same day the respondents replied in the following terms:
‘ . . .
We have been advised by Standard Bank that a bond has been granted in favour of the purchaser in the
amount of R2 250 000.00 but that their standard policy will be to authorise and sign bank guarantees only
upon the completion of the building.  Accordingly, guarantees for the full balance outstanding (R1 550 000.00)
will be issued upon the opening of the Sectional Title Register.
. . .’

On 6 February 2004 the respondents passed on to Mooney Ford Attorneys a letter they
had received from Standard Bank confirming the bond amount of R2 250 000.00 and the
guarantees for R1 550 000.00 which would be issued ‘once the following conditions have
been met’:

The amount was deposited in the trust account of  Mooney Ford Attorneys on 4 February 2004.
The respondents apparently laboured under a wrong impression.  After signature of the agreement the
sellers’ agent had inserted the words ‘on date of transfer at paragraph D.2.2.2 of the schedule’.  The words
inserted were, however, not a term of the agreement signed by the parties to it.
In a previous letter dated 2 February 2004 Mooney Ford Attorneys had indicated that they would accept
guarantees in their favour as suggested by the respondents in their letter of 2 February 2004. The letter also
reminded the respondents that the guarantees ‘are now due’.

‘1.
Opening of a Sectional register for the scheme Lazy Lizard.
2.
Transfer of the property into the name of Odhin Investments CC.
3.
Cancellation of all existing bonds over the property.
4.
Final inspection by SBSA (Standard Bank of South Africa) after completion.’

[10] Mooney Ford Attorneys rejected the letter from Standard Bank on the basis that its
format ‘does not constitute a bank guarantee and is not acceptable in terms of the
provisions of clause 5.2.2 read together with item D.2.2.1 of the schedule’.5  They advised
further that the first appellant ‘has cancelled the Agreement’.

[11] Following a further exchange of correspondence between Mooney Ford Attorneys
and the respondents, the latter launched an application for an order declaring invalid the
cancellation of the agreement by the first appellant.  When the matter came before Hurt J in
the Durban High Court it was agreed between the parties that the respondents would
deliver a declaration and that the matter proceed to trial.

[12] The declaration was delivered on 27 May 2004, but yet further correspondence was
exchanged between the parties during the period June to November 2004.  The
respondents attempted to furnish a guarantee from Standard Bank purporting to secure the
balance of the purchase price but Mooney Ford Attorneys returned it as certain paragraphs
were unacceptable to them.

[13] In their amended declaration the respondents alleged that on a proper construction
of the agreement the earliest date upon which the seller was entitled to call for delivery of,
and Mr Mia became obliged to provide, a banker’s guarantee for the amount of
R1 300 000.00 representing the second guarantee ‘was no earlier than a reasonable time
before the date upon which [the first appellant’s attorneys] would be in a position to lodge
the necessary documents required for the registration of transfer of unit 702’.6  The

Per letter dated 10 February 2004.
The main claim set out in the amended declaration is for rectification of the agreement.  In a minute of a
pre-trial conference in terms of Rule 37 held on 4 May 2006 it is recorded that the respondents intended to
rely ‘on the alternative claim set out in paragraphs 10-15 of [the] amended declaration’.  That is the claim
summarised in paragraph 14, and on which the trial proceeded.

respondents accordingly sought an order directing the appellants to deliver to them ‘all
documentation to enable them to obtain registration into their name of an unencumbered
100% member’s interest in [the CC]’.7

[14] It may be mentioned that it is not in dispute that the sectional title register was
eventually opened on 21 January 2005 and that documentation for the transfer of the first
unit in the scheme was lodged with the Registrar of Deeds in Pietermaritzburg on 12
January 2005.  That unit was transferred into the name of the purchaser thereof on 21
January 2005.  I mention this merely because it was pleaded in the declaration, the
respondents alleging that they were unaware of these developments at the time.

[15] In their plea the appellants relied on clause 20.2 of the written agreement and
averred, inter alia, that regardless of whether or not the Umdloti immovable property (Mr
Mia’s) was sold, the purchaser would be obliged to furnish the first and second guarantees
within a period of twelve months of the date of the conclusion of the agreement.  The court
a quo (Hurt J) upheld the respondent’s claim and declared the written agreement to be of
full force and effect.  It granted ancillary relief in accordance with draft orders furnished by
the parties’ legal representatives at its request.  This appeal is with its leave.

[16]   It seems to me that the resolution of the issues in this matter depends upon a proper
construction of clause 20.2.18 of the written agreement.  However, the court a quo found in
favour of the respondents on two bases.  With regard to clause 20.2.1 it said:
‘ . . . I do not think that it is necessary to delve into the question of whether clause 20.2 of the “true agreement”
between the parties should be interpreted as requiring the purchaser to deliver a guarantee for the full
purchase price at the end of the twelve-month period referred to in clause 20.2.  What is abundantly clear in
this case is that by the time the seller’s attorney was instructed to deal with this aspect of the performance of
the contract, both parties were genuinely under the misapprehension that their contract stipulated that “the
second guarantee” would have to be provided at the time when it was necessary to secure the seller’s rights in
the course of transfer.  In such circumstances it would be artificial in the extreme to judge the parties’ dealings
in relation to the guarantees, by the application of contractual provisions of which both of them were unaware.’

There is also an alternative order sought which it is not necessary to set out here.
Quoted in para 6 above.

(p 633)

The ‘misapprehension’ referred to by the court  a quo relates to another document which is
identical to the written agreement, but amended without authority by the sellers’ agent who
had inserted, in the schedule thereto, the words: ‘ON DATE OF TRANSFER’ in the space
provided for the date on which the second guarantee was to be furnished.9  The
amendments were effected after the written agreement had been signed by the parties.

[17] The court  a quo accordingly reasoned that the matter had to be considered ‘in the
light of the exchanges which took place during and after December 2003’.  The exchanges
referred to are (a) a letter written by respondent on 22 December 2003 to Mooney Ford
Attorneys advising, inter alia, that they would furnish guarantees within 48 hours of
receiving clarification on certain matters relating to plans for the property;  (b) a letter dated
14 January 2004 in which Mooney Ford Attorneys called for, among others, both
guarantees to be furnished forthwith, as they were due;  (c) a letter from the respondents to
Mooney Ford Attorneys dated 27 January 2004,10 expressing disagreement with the latter’s
view that the second guarantee was due, and stating that it would only be due ‘on date of
transfer’;11  (d) a reply dated 2 February 2004 in which Mooney Ford Attorneys
acknowledged that an error had occurred at the time of the conclusion of the agreement for
which rectification was required as it was common cause that the guarantee could not be
delivered on date of transfer, but prior to transfer and thus on demand;  and (e) a response
from the respondents dated 3 February 2004 stating, in the last paragraph thereof, that the
guarantees were clearly intended to be delivered ‘when you are in a position to lodge for
transfer’.

[18] Citing Hofmeyr NO v Brunofarms (Pty) Ltd12 and Wehr v Botha NO13 the court a quo,
accepting that the guarantees were to be furnished before transfer, held that they

There was also another insertion in the schedule, which is not relevant for the determination of the issues.
This letter was in response to Mooney Ford Attorneys’ letter of 2 January 2004 referred to in para 7 above
and which placed respondents in mora.
This was obviously because of the insertion made by the sellers’ agent as mentioned in para 17 above.
1955 (2) PH A 42.

(guarantees) were due ‘on demand when the conveyancer is ready to lodge the
documents required for transfer’.  The court accordingly concluded that the mora notice of
21 January 200414 ‘was ineffective as a precursor to a valid cancellation of the contract’.

[19] It is true that the correspondence just referred to15 shows that the authors had before
them the unauthorised ‘amended version’ of the written agreement.  The first appellant,
who was the only witness to testify at the trial, apart from an expert witness, said, however,
that he had always had in his possession a copy of the unamended version of the written
agreement.  But apart from the first appellant’s assertion, it seems to me that the court  a
quo was clearly wrong in ignoring the terms of the actual contract and to  decide the issue
of the due date of the guarantees on a term that was never agreed upon, which was
inserted after the written agreement had been signed by the parties to it.  Clause 15.1 of
the written agreement provides:
‘This agreement constitutes the sole and exclusive memorial of the agreement between the Seller and the
Purchaser and no alteration, variation, deletion or consensual cancellation hereof shall be binding on either the
Seller or the Purchaser unless reduced to writing and signed by both parties.’

The insertion in issue was not signed by the parties to the agreement and therefore not part
of their agreement.

[20] The second basis upon which Hurt J found for the respondents relates to the form of
the guarantees that were to be furnished.  The written agreement provides only that
guarantees acceptable to the sellers’ attorneys were required.16  In this regard the court a
quo said:
‘Where the form of the guarantee is not defined with reasonable clarity in the contract (e.g. where the contract
stipulates that the guarantee must be in a form “acceptable to the seller’s attorney”), and where the seller is
driven to put the purchaser on terms to deliver the guarantee, he should make it clear to the purchaser what
particular features of the guarantee would make it “acceptable” to him.  Otherwise he will be putting the
purchaser on terms to remedy a situation where the purchaser cannot be sure that what he does will constitute

1965 (3) SA 46 (A) at 59E-H.
See para 7 above.
Above para 15.
See clause 5.2 quoted in para 5 above.

proper performance.’

And further:

‘It was not, in my view, open to the seller’s attorney to stipulate simply that guarantees be delivered, on pain of
cancellation, and then to sit back and wait for a tender before deciding what sort of guarantee would be
acceptable.  In my view, it was incumbent upon the attorney, at the stage when he purported to put the
Plaintiffs on terms to remedy their alleged breach, to define precisely what form of guarantee would be treated
as “acceptable” by him.  It is clear from the correspondence, however, that it was only in the letter of 4
February 2004 (which was at the very end of the fourteen day period stipulated in the letter of 21 January
2004) that the format of the guarantees required by the seller’s attorney was clarified.’

According to this reasoning an obligation is placed on the seller to define what form of
guarantee would be acceptable before a demand may be made for the furnishing of a
guarantee.

[21] I do not agree with this proposition.  The form of a guarantee in a written contract of
sale will generally be ascertainable from the terms of the particular agreement, if not
separately agreed upon by the parties.  The parties may, of course, agree to amend the
form agreed upon in the written agreement.  And once a guarantee has been furnished the
seller will either accept or reject it.  If it is rejected, the seller will obviously advise the basis
of the rejection, which, if unreasonable, may be challenged by the purchaser.

[22] In Dharumpal Transport (Pty) Ltd v Dharumpal17 the written contract of sale of
certain buses stipulated that the bills of exchange to be provided by the purchaser ‘shall be
endorsed as guarantor and co-principal debtor by a person whom the seller shall consider
as sufficient and suitable’.  In an exception to a claim for payment of the balance of the
purchase price, it was argued on behalf of the excipient that the stipulation made the
contract depend solely upon the will of the seller and was thus unenforceable.  This court
held that the seller was not entitled to reject a proposed guarantor from pure caprice;  and
that at least the seller must exercise an honest judgment in deciding whether the proposed

guarantor was sufficient and suitable.18  Hoexter JA, for the unanimous court, elaborated
thus:
‘I can see no reason why a Court should not be able to determine whether the seller has exercised the
arbitrium boni viri in rejecting a proposed guarantor.  In the case of Machanick v Simon, 1920 C.P.D. 333, in
which goods were sold subject to the seller’s approval of the buyer’s financial stability, it was held by JUTA,
J.P., that the discretion thus given to the seller had to be exercised arbitrio boni viri.  In the present case a
discretion is given to the seller to approve of the guarantor, and he must exercise that discretion arbitrio boni
viri.’  (p 707A-B)

Similar considerations would apply in a matter such as the present.

[23] In their letter to Mooney Ford Attorneys dated 2 February 2004 the respondents
convey that they were to issue a guarantee ‘in favour of your firm to comply with the
conditions of the contract’.  Mooney Ford Attorneys were then invited to advise of their
requirements ‘[s]hould you wish to amend the guarantee’.  (My emphasis.)  This clearly
indicates, in my view, that the respondents were in a position to establish what the
requirements of the guarantee were in terms of the contract, but were willing to depart from
them in accordance with the wishes of the appellants.  But nothing would have prevented
the respondents from ignoring ‘additional’ requirements, or an amendment to the
requirements agreed upon in the written agreement if those were, e.g. onerous or, for
whatever reason, unacceptable to them, and to furnish a guarantee that is in compliance
with the terms of the agreement.  It would then be open to the respondents to lodge a
challenge in the event of the seller’s rejection of the guarantee.

[24] I am satisfied that in placing an obligation on the seller to define what form of
guarantee would be acceptable before a demand can be made for the furnishing of it, the
court a quo erred.  The defence of the exceptio non adimpleti contractus raised by the
respondents on the grounds that the appellants were not entitled to demand performance
(furnishing of a guarantee) whilst they had failed to advise of a format of the guarantee
consistent with the agreement cannot be sustained.

1956 (1) SA 700 (A).

[25] In any event, the letter from Standard Bank19 which was passed on to Mooney Ford
Attorneys by the respondents on 5 February 2004, besides the fact that it does not
constitute a guarantee, clearly set new conditions regarding the furnishing of the
guarantees.  It stated that the guarantees would be furnished once certain conditions had
been met.  The contents of the letter thus amounted to an alteration of the terms of the
agreement between the parties.  This is prohibited by clause 15.1 of the written
agreement,20 unless the alteration was signed by both parties.  This brings me to the proper
construction of clause 20.2 of the written agreement.

[26] Counsel for the respondents submitted that on a fair reading of the agreement, and
having regard to clause 20.2.1,21 Mr Mia was given a period of 12 months before there
could be any call for guarantees.  It is only after the twelve-month period that the condition
would expire and that ‘guarantees for the full purchase price shall be provided by the
purchaser’.  And as to the time when the guarantees could be demanded, counsel argued,
on the principle enunciated in Hammer v Klein and another22  and Wehr v Botha,23 that
such guarantees could only be required after the period of 12 months, provided the first
appellant was in a position to perform, that is, provided the seller was ready to effect
transfer of the member’s interest in the second appellant.

[27] I do not agree.  Clause 20.2 of the written agreement stipulates clearly that the first
guarantee of R250 000.00 was to be furnished from the proceeds of the sale of Mr Mia’s
fixed property at Umdloti.  Clause 20.2.1 afforded Mr Mia a period of 12 months from the
date on which the agreement became effective, within which to sell that property.  This
means that Mr Mia had 12 months to sell his property, and that the first guarantee would
not be due until the expiry of that period.  However, upon the expiry of the twelve-month
period, and if Mr Mia’s property had not been sold, this condition also expires ‘and

At 707A.
Referred to in para 9 above.
Quoted in para 19 above.
Quoted in para 5 above.
1951 (2) SA 101 (A) at 105E–106C.

guarantees for the full purchase price shall be provided . . .’.  A time was, therefore,
stipulated as to when the first guarantee was to be furnished.  If it had been furnished as
stipulated, then the second guarantee in respect of which no time had been agreed upon,
would have become due when the seller was ready to effect transfer of the member’s
interest in the second appellant.

[28] The position changed, however, when Mr Mia failed to furnish the first guarantee
within the agreed twelve-month period.  Now both guarantees had to be furnished.  In my
view, it would make no commercial sense were the sellers to stipulate a time for the
delivery of the first guarantee and to be content with no time being fixed for the delivery of
both guarantees in the event of a failure to furnish the first guarantee.  In my view, a proper
construction of clauses 20.2 and 20.2.1 is that upon failure by Mr Mia to furnish the first
guarantee, as indeed occurred, both guarantees had to be furnished upon the expiry of the
agreed period of 12 months.  At the risk of repeating, the second part of clause 20.2.1
reads:
‘At the end of the said 12 months period, this condition shall expire and guarantees for the full purchase price
shall be provided by the purchaser.’  (My emphasis.)

Two things were to occur at the end of the period of 12 months.  The first is that the period
within which the first guarantee had to be furnished was to expire.  The second is that
guarantees (plural) for ‘the full purchase price,’ i.e. guarantees for the full balance of the
purchase price had to be provided.

[29] It follows that when Mooney Ford Attorneys made demand on 21 January 2004 that
the guarantees be furnished the guarantees were due.  The seller was accordingly entitled
to place the respondents in mora.  And upon the respondents’ failure to remedy the breach
within the time stipulated in the demand, the seller was entitled to cancel the agreement.
The appeal must therefore succeed.

[30] Counsel were agreed that in the event of the appeal succeeding, costs should follow

Above footnote 13.

the result, except for those costs occasioned by the filing by the appellants of their fourth
set of affidavits in the application, and the respondents’ filing of a fifth set.  The appellants
tendered the costs occasioned by the filing of these additional affidavits.

[31] The following order is made:
1.
The appeal is upheld with costs.
2.
The order of the court  a quo is set aside and for it is substituted the following:
‘(a)
The plaintiffs’ claim is dismissed with costs, which costs are to exclude the
costs occasioned by the filing, by the respondents in the application
(defendants), of a fourth set of affidavits and the applicants’ (plaintiffs’) filing
of a fifth set.
(b)
The costs occasioned by the filing of the additional affidavits referred to in (a)
above are to be paid by the first defendant.’

MPATI AP

CONCUR:

CAMERON JA
CLOETE JA
PONNAN JA
LEACH AJA