THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 286/11

Reportable

In the matter between:

LEKUP PROP CO NO 4 (PTY) LTD

APPELLANT

and

JOHN COLIN WRIGHT

RESPONDENT

Neutral citation: Lekup Prop Co No 4 (Pty) Ltd v Wright (286/11) [2012]
ZASCA 67 (23 May 2012).

Coram:
Cloete, Cachalia, Snyders and Leach JJA, and Petse AJA

Heard:
2 May 2012

Delivered:
23 May 2012

Summary:
Contract: doctrine of fictional fulfilment: state of mind of
party against whom doctrine invoked, discussed.
Practice and procedure: difference between status of affidavits where
matter referred to trial, as opposed to evidence on specific defined
issues.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from:
South Gauteng High Court, Johannesburg (Vally AJ
sitting as court of first instance):

The appeal succeeds with costs, including the costs of two counsel.
Paragraphs 1 to 3 and 5 to 7 of the order of the court a quo are set
aside and the following order substituted therefor:
‘(a)
It is declared that the agreement of sale concluded by the parties on 12
April 2004 in respect of the proposed portion 12 of erf 39 Sandhurst lapsed on
31 December 2005 and was of no force or effect after that date.
(b)
The defendant is ordered to pay the plaintiff’s costs of suit in respect of
the claim and counterclaims and the costs of the application proceedings.’
Paragraph 4 of the order of the court a quo stands, viz ‘The
counterclaims of the defendant are dismissed’.
______________________________________________________________

JUDGMENT
______________________________________________________________

CLOETE JA (CACHALIA, SNYDERS AND LEACH JJA AND PETSE AJA
CONCURRING):

[1] The present appeal concerns primarily the state of mind a party must
be shown to have had for the doctrine of fictional fulfilment to be invoked
successfully against that party.

[2] The appellant, a company, owns erf 39 in the township of Sandhurst.
On 12 April 2004 it sold a portion of the erf to the respondent, Mr John Colin
Wright. The agreement of sale incorporated an annexure A, which provided:
‘Notwithstanding anything contained to the contrary in the said Agreement of Sale,
the Purchaser records that:

1.
he is aware that the property is not yet sub-divided and this Agreement of
Sale is subject to sub-division being formally approved and registered by not later
than 31 October 2004, as per sub-division plan attached as annexure B1, B2, B3.
2.
In the event of sub-division not being registered by 31 October 2004, this
Agreement of Sale shall be cancelled.’
The parties executed a series of addenda extending the date. The final
extension was to 31 December 2005. By that date the sub-division had not
been approved, much less registered. The case was conducted on the basis
that despite the reference to cancellation in para 2, the meaning of the clause
was that if the condition had not been fulfilled on the date specified, the
agreement would lapse.

[3] The appellant, as applicant, instituted motion proceedings against the
respondent in the South Gauteng High Court in which it sought a declaratory
order that the agreement had indeed lapsed. After the respondent had
delivered his answering affidavit the matter was, by consent, referred to trial.
The appellant in its declaration asked for similar relief to that claimed in its
notice of motion, which stood as a simple summons. The respondent
delivered a plea and counterclaim. In his plea, the respondent alleged:
’14.1
The Plaintiff deliberately and intentionally failed to procure the required
rezoning and subdivision of the property;
14.2
Based on the doctrine of fictional fulfilment, the relevant term/s of the contract
must therefore, inter alia for purposes of the Plaintiff’s allegation that the agreement
had lapsed, be deemed to have been fulfilled;
Alternatively:
14.3
The Plaintiff has breached the agreement by failing:
14.3.1 to exercise due and proper care in order to ensure that the rezoning and
subdivision of the property was obtained timeously;
14.3.2 to take all reasonable and necessary steps to timeously obtain the rezoning
and subdivision of the property as it was required and obliged to do in terms of the
agreement;
14.4
The plaintiff should not be permitted to rely on its own breach and negligence
in order:
14.4.1 to escape from its obligations under and in terms of the agreement;

14.4.2 to let the agreement lapse or be permitted to cancel the agreement to the
prejudice of the Defendant.
14.5
The Defendant is entitled to the relief set out in his counterclaim which is filed
herewith.’
The relief sought by the respondent in his counterclaim relevant for present
purposes was:
’30.1
A Declaratory Order that the Agreement has not lapsed;
30.2
An Order for specific performance in terms whereof the Plaintiff is directed to
fulfil its contractual obligations to procure the rezoning and the subdivision of the
property and to take all necessary and reasonable steps to achieve this, including the
signing of all documents to give effect thereto.’
The further allegations in the plea, and the further and alternative relief sought
in the counterclaim (to one aspect of which I shall briefly have to return), were
not pursued.

[4] The appellant’s application for sub-division was approved by the City of
Johannesburg in March 2007, subject to conditions. On fulfilment of the
conditions, the sub-division would have been capable of registration in the
Deeds Registry.

[5] The trial court (Vally AJ) found in favour of the respondent and on 23
February 2011 made an order that incorporated the following paragraphs:
‘1.
The plaintiff’s claim for a declaratory order is dismissed.
2.
It is declared that the agreement of sale of the property has not lapsed and
the suspensive condition contained in Clause 2 of Annexure A to the agreement is
deemed to have been fulfilled.
3.
The plaintiff is to take all the necessary steps to effect the transfer of the
property to the defendant and the defendant is to meet all his obligations in terms of
the purchase of the property within three months of the date of this order.
4.
The counter claims of the defendant are dismissed.’
The remaining three paragraphs of the order dealt with costs. The trial court
subsequently granted the appellant leave to appeal to this court.

[6] I propose dealing first with the law relating to fictional fulfilment. The
remedy is an equitable one that had it origins in Roman law, that was

accepted in Roman-Dutch law and that was first analysed by this court in two
decisions handed down in 1924, namely, Gowan v Bowern 1924 AD 550 and
MacDuff & Co Ltd (in liquidation) v Johannesburg Consolidated Investment
Co Ltd 1924 AD 573. In the latter case Innes CJ succinctly stated the position
as follows:1
‘[B]y our law a condition is deemed to have been fulfilled as against a person who
would, subject to its fulfilment, be bound by an obligation, and who has designedly
prevented its fulfilment, unless the nature of the contract or the circumstances show
an absence of dolus on his part.’
For present purposes, two aspects require emphasis: the meaning of dolus,
and the requirement that nothing short of dolus will suffice.

[7] Dolus in this context does not bear its usual meaning of deliberate
wrongdoing or fraudulent intent but a more specific meaning, namely, the
deliberate intention of preventing the fulfilment of the condition in order to
escape the obligation subject to it. In Gowan v Bowern Wessels JA said:2
‘The Court must hold that if a contract is made subject to a casual condition then if
the person in whose interest it is that it should not be fulfilled deliberately does some
act by which he hinders the accomplishment of the condition, he is liable as if the
condition had been fulfilled. But a party cannot be said to frustrate a condition unless
he actively does something by which he hinders its performance. There must be an
intention on his part to prevent his obligation coming into force.
There is nothing to prevent his folding his arms and allowing events to take
their course. Paul, in D.45.1.85.7, uses the word curaverit, and Cujacius also uses
this term in dealing with the promissor’s liability. Curare ut or ne here signifies to
bring actively about a certain set of circumstances . . . The only culpa for which a
promissor sub conditione is liable is some deliberate act, some act done with the
intention of causing the condition to fail or, perhaps, also a deliberate omission3
where there is a duty to do something, by which he frustrates the happening of the
condition in his own interest in order to enrich or benefit himself.’
Towards the end of his judgment the learned judge said:4
‘I do not think that the Civil law goes further than this:─

1 At 591.
2 At 571.
3 A question settled in Ferndale Investments (Pty) Ltd v DICK Trust (Pty) Ltd 1968 (1) SA 392
(A).
4 At 572.

If a promise is made subject to a casual condition the promissor may not for his own
benefit, in order to escape the consequences of the contract, actively do something
to prevent the fulfilment of the condition. To do so is dolus.’
In his judgment in Koenig v Johnson & Co Ltd 1935 AD 262 at 2725 the same
learned judge, then Chief Justice, referred to part of the first passage just
quoted and, in a later passage in the Koenig case6 (that was subsequently
approved in Ferndale Investments (Pty) Ltd v DICK Trust (Pty) Ltd 1968 (1)
SA 392 (A) at 395A-C) said:
‘[I]f it is the fault of the person in whose favour the condition is inserted that the
condition cannot be fulfilled, or if he intended to prevent the condition from being
fulfilled, the law considers the condition to have been fulfilled as against him. The
nature of the contract is always an important element. In some cases the person
benefitted by the non-performance of the condition can sit still and do nothing to
assist in its fulfilment; in other cases it is his legal duty to assist in the condition being
fulfilled, and in all cases if he deliberately and in bad faith prevents the fulfilment of
the condition in order to escape the consequences of the contract the law will
consider the unfulfilled condition to have been fulfilled as against the person guilty of
bad faith.’
In Scott & another v Poupard & another 1971 (2) SA 373 (A) at 378H Holmes
JA, who delivered the majority judgment, said that the principle underlying the
doctrine of fictional fulfilment may be stated thus:
‘Where a party to a contract, in breach of his duty, prevents the fulfilment of a
condition upon the happening of which he would become bound in obligation and
does so with the intention of frustrating it, the unfulfilled condition will be deemed to
have been fulfilled against him.’

[8] If the intention was to escape the obligation, it matters not whether the
person concerned was actuated by the purest or the basest of motives,
because the doctrine is concerned with intention, not motive. In Koenig v
Johnson Koenig sold and transferred to Johnson & Co his shares in the
Contex company. Payment of the last instalment of the purchase price was
conditional on Koenig delivering letters patent for which application would
have to be made by Contex. Johnson & Co believed, on legal advice, that any

5 The judges who heard that appeal were equally divided. See p 298.
6 At 272.

such application would be improper as it would infringe the existing patent
rights of another party. It accordingly used its newly acquired controlling
interest in Contex to prevent the making of the application. Wessels CJ said:7
‘If Johnson & Co deliberately and intentionally frustrated Koenig on delivering the
“new patent,” their opinion and motive are immaterial.’

[9] The other point that requires emphasis is that for the doctrine to be
applied to the action or inaction of a contracting party, what must be proved is
intention in the sense just discussed ─ negligence does not suffice. That is
apparent from a number of judgments delivered in this court. In Gowan v
Bowern Innes CJ said:8
‘It is difficult to see how the principle of fictional fulfilment of a condition can operate
on the mere ground of culpa. It will I think be found that in cases in which there may
be duty on the promissor to take any active steps to bring about the fulfilment of a
condition, that duty arises either from a term of the contract itself, or because the
omission of such steps will render the happening of the condition impossible. In the
last mentioned case the neglect to take the steps will generally be due to a desire to
defeat the condition, and the doctrine would apply.’
In the same case De Villiers JA quoted9 what is clearly the translation by Sir
Henry Juta10 of Van der Linden’s Institutes of Holland 1.14.9.2:
‘The conditions are deemed to be fulfilled when the debtor, who has bound himself
subject to them, is himself and intentionally the cause of their not being fulfilled.’11
The learned judge, in the course of referring to the Roman law and other
Roman-Dutch law authorities, then went on to say:
‘If such person, whom I shall call the debtor, deliberately hinders or impedes the
fulfilment of the condition, he is liable just as if the condition had been fulfilled.’12
I have already (in para 7 above) quoted two passages from the judgment of
Wessels JA at 571-2 from which it is quite clear that that the learned judge,

7 At 273.
8 At 553.
9 At 566.
10 Which in the 5th ed (1906) is at p 112-113.
11 Morice’s translation 2 ed (1922) p 138 is: ‘Conditions are considered to have been fulfilled,
if the debtor who has bound himself under a condition is himself intentionally the cause of its
not being fulfilled.’
12 At 566.

having analysed the old authorities, was of the view that only intentional
conduct suffices. The learned judge also said:13
‘It seems to me difficult to extract from the texts of the Corpus Juris that mere
negligence on the part of the promissor which may incidentally cause the conditions
to fail is enough . . . He need not be diligent so that the condition may be fulfilled. Nor
can I find in any of the older commentators a clear statement that a condition has to
be regarded as fulfilled if, through the culpa of the party interested, the condition is
frustrated. . . . It is true that Gowan’s delay in forwarding the vessel indirectly caused
the second instalment [on the payment of which Bowern’s claim against Gowan for
commission depended] to fail, but the delay was not purposely plotted so that the
condition should fail and this seems to me essential. Gowan must have contrived
something which caused the second instalment not to be paid.’

[10] In the MacDuff case Innes CJ, in the course of his review of the old
authorities, referred14 to the same passage in Van der Linden to which De
Villiers JA had referred in Gowan v Bowern and concluded with the passage
referred to in paragraph 6 above. Solomon JA also referred to the passage in
Van der Linden and continued:15
‘The rule, as laid down in the passage from Van der Linden cited above, is an
equitable one, based upon the principle that it is contrary to good faith for a party,
who finds that he has entered into a disadvantageous contract deliberately to set
about to prevent the other party from fulfilling a condition upon which his own
obligation depends.’

[11] In the present case the appellant accepted that he had a tacit
contractual duty to take all reasonable steps to ensure that the property was
sub-divided and the sub-division registered. The addendum to the agreement
did not contain a true condition but the doctrine of fictional fulfilment has been
extended. It is an equitable doctrine and equity demands that in certain cases
a contracting party should be held to a bargain where it has deliberately not
performed an obligation for the purpose of avoiding the contract: Du Plessis

13 At 571-2.
14 At 591.
15 At 599.

NO & another v Goldco Motor & Cycle Supplies (Pty) Ltd 2009 (6) SA 617
(SCA) paras 22-29.

[12] Therefore in the present matter, in order successfully to invoke the
doctrine of fictional fulfilment, the respondent bore the onus of proving that the
appellant, by deliberate commission or omission, prevented the sub-division
from taking place, with the intention of avoiding its obligations under the
agreement. I proceed to examine the evidence.

[13] Mr John Alastair Legh was called to give evidence by the appellant. At
the time that the agreement was concluded, he and Mr David Kuper were
equal shareholders in the appellant and he was a director. Kuper died before
the matter was heard. Legh testified that he and Kuper were property owners
and developers and that they had purchased erf 39 through the appellant for
this purpose. Their intention was to sub-divide the erf and sell it. To this end
they appointed a town planner, who, when his advice proved to be erroneous,
was substituted with another town planner, Mr Henry Nathanson; and an
estate agent, Mr Eskel Jawitz. The appellant called both Nathanson and
Jawitz to give evidence.

[14] Legh said in his evidence-in-chief that he and Kuper ‘desperately
wanted’ the sub-division to go through. He confirmed that the time within
which the sub-division was to take place as reflected in the addendum to the
agreement was extended on 28 October 2004 to 31 January 2005; on 31
January 2005, to 30 April 2005; on 25 April 2005, to 31 July 2005; and on 29
July 2005, to 31 December 2005. He said that the extended dates were
discussed with Nathanson, which the latter disputed. Legh’s evidence was
that he thought Nathanson was proceeding diligently with the rezoning
process. He also said that even after the final extension had been granted at
the end of July 2005, ‘we really, really wanted to get rid of these properties’.

[15] Jawitz had been an estate agent for 41 years when he testified. He
said that the property market had turned in about 2000 and that in 2004 it was
‘definitely rising, very buoyant and very vibrant’. In re-examination he said that

at no time between April 2004 (when the agreement was concluded) and 31
December 2005 (the date of the final extension) did the shareholders of the
appellant ever decide that they wanted to get out of the agreement but, on the
contrary, they were ‘totally amenable to extend the period . . . notwithstanding
the increase in market values, they were very happy to extend it based upon
their belief that, as I understood it, sub-division was going to come through in
... this period’. He went on to express the opinion that:
‘[T]here was no point in the sellers selling either the stand or the property at the time
that they did if they were not of the belief that in actual fact sub-division would come
through. Then they should have rather waited until sub-division came through and
then put the properties back on the market which would have then realised for them a
substantially higher price.’
Junior counsel, who alone represented the respondent at the trial, cross-
examined Jawitz further after he had been re-examined, and in so doing
elicited the following evidence:
‘Again, if the sellers would have had no intention, or if they honestly believed that
sub-division was not coming through, then again it reinforces my comment, M’Lord,
that they should have rented out the property for a year or two and then when sub-
division came through they would have put it on the market and then sold it for more,
but they chose to sell it at the market price then according to my discussions with
them and according to my understanding that in actual fact the whole sub-division
was in the process and that they had every expectation that it was going to come
through within the relevant times’
and:
‘[M]y point was if they honestly did not expect sub-division to come through it would
have paid them to rent it out for R25 000 and put it on the market when sub-division
came through, because as it is they were selling it at a 2004 price and they would
have received the money at 2005 or 2006 which in itself was almost crazy M’Lord.’

[16] Nathanson explained what happened about the sub-division. There
were at the time two routes that could be followed: either under the Town
Planning and Townships Ordinance 15 of 1986 or under the Development
Facilitation Act 67 of 1995. Nathanson’s evidence was that the procedure
under the Ordinance would have taken longer, especially if there were
objections; whereas under the Act, there are time-frames imposed which had

the consequence that from the time an application for rezoning and sub-
division was submitted to the time it was granted, 129 days would lapse,
despite objections.

[17] In May 2004 the decision was taken on behalf of the appellant to follow
the route prescribed by the Act. The reason given by Legh was that although
this process cost significantly more ‘we wanted to transfer these two
properties’ and it was considered that the procedure under the Act would be
quicker. Nathanson accordingly prepared an application under the Act. He
described the process as ‘cumbersome’ and said that this was the reason why
the application was only ready in September 2004. The Act requires the
application to be served on a ‘designated officer’. But at about that time the
legal advisers to the Johannesburg City Council, who were the designated
officers under the Act, all resigned as designated officers pursuant to a
resolution of the Council. Consequently there were no designated officers until
one was appointed on 27 January 2005 and that person had to be trained. As
a result the system only began to operate again in about March 2005.
Nathanson had left a copy of the application on the desk of the Registrar of
the Development Facilitation Tribunal, which he took to the new designated
officer; but he did not ‘trigger’ the application, ie he did not ask the designated
officer to consider it, as that would have started the 129 day process which he
did not wish to do, for the reasons that follow.

[18] In March 2005, Nathanson met with the senior legal advisor of the City
of Johannesburg and he was given a copy of an affidavit that the Council was
going to use to challenge the applicability of the Act. (The challenge
commenced in March 2005 and culminated more than five years later in the
decision by the Constitutional Court reported as Johannesburg Metropolitan
Municipality v Gauteng Development Tribunal and others 2010 (6) SA 182
(CC).) Also in March, Nathanson established that the Council was not going to
recognise any decisions taken under the Act by the Development Facilitation
Tribunal and that it would not participate in any applications under the Act. He
had discussions with various persons at the Council, the Development
Facilitation Registrar’s office and members of the Tribunal and formed the

view that the Council’s challenge would be resolved within a short space of
time; and he was of the view that the Council’s prospects of success were
‘remote’.

[19] Nathanson was at the time aware of s 67 of the Act, subsections (2)
and (3) which provide:
‘(2)
After a land development application has been lodged in terms of this Act the
same or a substantially similar land development application may not also be brought
in terms of any other law.
(3)
If a land development application has been rejected in terms of this Act, the
same or a substantially similar land development application may not, within a period
of two years, thereafter be brought in terms of any other law.’
Nathanson interpreted the effect of these sections to be that in the event of
the Council succeeding in its challenge, an application under the Act would
fail and that he could not then bring a similar application under the Ordinance
within a period of two years; and that an application under the Act and the
Ordinance could not be brought simultaneously.

[20] Nathanson said that the decision not to file the application for
enrolment was taken by himself, ‘with my client’s knowledge’. Legh, on the
other hand, said in cross-examination that had he known that Nathanson had
not proceeded with the application, he would have been ‘shocked’.

[21] On 15 November 2005 Nathanson wrote a letter to Legh in which he
summarised what had already happened; set out in detail what in his view
would happen if the appellant continued with its application under the Act or
brought a new application under the Ordinance; and recommended that the
application under the Act be abandoned and that an application be brought
under the Ordinance. The appellant did not react to the recommendation until
the following year.

[22] On 6 December 2005 the respondent sent a letter to Jawitz requesting
a further extension of time for the approval of the sub-division. This time the
appellant refused.

[23] The trial court found against the appellant on two bases. The first was
that the appellant had acted unreasonably in refusing a further extension after
31 December 2005. The second was that the appellant had made no
application for sub-division, either under the Ordinance or the Act, before that
date. The trial court also rejected the argument that no dolus had been
established, finding that despite agreeing to the extensions, the appellant did
not do anything to ensure that the condition was fulfilled; and that by its action
and deliberate inaction, the appellant had frustrated the fulfilment of the
condition.

[24] The reasoning of the trial court overlooks one fundamental point: the
onus was on the respondent to show that it was the appellant’s intention, by
not taking steps to secure sub-division of the erf, to escape its obligations
under the contract. Whether the appellant acted reasonably or not, is
irrelevant, save to the extent that this might indicate the appellant’s intention;
and in any event, so far as the first finding of the trial court is concerned, the
obligation on the appellant was limited to the lifetime of the contract. If the
obligation could not be fulfilled within the agreed period, the appellant was
perfectly entitled to refuse a further extension.

[25] The mere fact that the appellant gave extensions at all creates the
probability that it had no intention to escape from its obligations in terms of the
agreement by exploiting the condition to which they were subject. Legh’s
evidence summarised above in para 14 was that the appellant had no such
intention. That evidence was not challenged and there is no reason to reject it.
Jawitz’s evidence quoted above in para 15 negatives any suggestion that the
members of the appellant were intent on destroying the bargain. There is no
reason to reject his evidence either. And even if Nathanson did agree with the
appellant in March 2005 that he would hold back the application under the
Act, the reason was not to frustrate the contract. The reason was, in
Nathanson’s words:
‘[A]s at June, July 2005 I was still of the view that it would make sense to wait it out
and just see for the next while whether it was going to be resolved and the
expectation was that it was, because you could not have or it was my understanding

that you could not have these three spheres of government simply allowing the
system to break down like this.’

[26] Had the intention been to frustrate the agreement, the appellant would
not have granted the two further extensions which it did (on 25 April and 29
July). Nor does the appellant’s failure to respond to Nathanson’s letter of 15
November 2005 before the end of the year indicate such an intention.
Nathanson’s recommendation was incapable of being implemented by 31
December. If, on the other hand, Nathanson did not tell the appellant about
his intention not to activate the application under the Act, and if it be assumed
both that he was negligent (I emphasise that this is an assumption) and that
his negligence can be attributed to the appellant, this does not suffice. For the
reasons already given, only dolus suffices.

[27] The mere fact that there was a delay does not mean that the appellant
was actuated by dolus. In the heads of argument drafted by senior counsel
then representing the respondent (who did not appear before us) much
reliance was placed on the decision in Thanolda Estates (Pty) Ltd v Bouleigh
145 (Pty) Ltd 2001 (3) SA 196 (W). In that case Wunsh J concluded16 that the
defendant had an obvious duty to take steps to procure the fulfilment of the
conditions (that sub-division of the property be approved and that a township
establishment on the property be approved in principle within 180 days); and
further concluded17 that ‘the defendant’s conduct in avoiding the fulfilment of
the condition was intentional’. The latter finding distinguishes that case from
the present. The question facing the court in that case, as formulated by the
learned judge,18 was ‘whether the non-fulfilment of the conditions can properly
be attributed to the defendant’s conduct’. That question does not arise for
decision in this case, and I expressly refrain from deciding on the correctness
of the view expressed by Wunsh J as to the incidence of the onus involved in
answering it.

16 In para 16.
17 Ibid.
18 Ibid.

[28] The correct approach to the question facing this court ─ whether dolus
in the sense required has been established ─ is set out in the following
passage from the judgment of Innes CJ in the MacDuff case at 590 (and as I
have already pointed out, it applies equally to deliberate and calculated
inaction):
‘Where the nonfulfilment of the condition is due to the deliberate and calculated
action of the debtor, dolus will ordinarily be present. But the nature of the contract or
the established intention of the parties may conceivably negative it even then ─ and
in such a case the doctrine would not operate.’

[29] In argument, senior counsel who represented the respondent on
appeal nailed his colours to the mast and relied solely on what Nathanson did
and did not do, the submission being: first, that it should be inferred from
Nathanson’s action and inaction that he intentionally prevented the fulfilment
of the condition; and second, that his intention should be attributed to the
appellant. I have considerable difficulty with the second proposition, but it is
unnecessary to explore it further. The case advanced in oral argument was
not pleaded; it was not put to Nathanson; and counsel found himself unable to
show from the record facts from which the inference for which he contended,
could properly be drawn.

[30] The action and inaction of those acting on the appellant’s behalf was
not shown to have been prompted by a desire to escape the obligations it had
under the agreement. The respondent accordingly did not discharge the onus
on him and the relief based on the doctrine of fictional fulfilment sought by him
and granted by the court a quo, should have been refused.

[31] Similar relief cannot be obtained by a decree of specific performance.
Assuming, again without deciding, that the appellant breached the contract by
not obtaining registration of sub-division timeously, the effect of such a failure
would be that the contract lapsed. It could therefore no longer be enforced.
The remedy of specific performance would accordingly not be available, and
the respondent would be limited to a claim for damages for breach of contract.
Although such a claim was pleaded, and quantified on the basis of the loss to

the defendant of the profit he would have made but for the appellant’s breach,
no evidence whatever was tendered to prove the amount of the loss. The
respondent’s counsel nevertheless asked that paragraph 4 of the order made
by the court a quo should be amended so that it dismissed only the claims
based on fictional fulfilment and for specific performance, and decreed
absolution from the instance in respect of the claim for damages. We were
informed from the bar that the defendant wishes to pursue the damages claim
if it has not prescribed (a question on which I express no opinion) and we
were urged to open the door that the trial court had closed. But the
insurmountable difficulty facing the defendant is that he brought no cross-
appeal against the order dismissing all of his counterclaims and this court is
accordingly not entitled to interfere with that order in the manner suggested:
SA Railways and Harbours v Sceuble 1976 (3) SA 791 (A) at 793F-794E;
Shatz Investments (Pty) Ltd v Kalovyrnas 1976 (2) SA 545 (A) at 560G-H.

[32] Before making the appropriate order, I wish to say something about the
manner in which the trial was conducted. It will be recalled that the appellant
initiated motion proceedings and that the matter was referred to trial after the
respondent had filed his answering affidavit. At the trial, the respondent was
allowed to read from that affidavit and did so, extensively. That was not the
correct procedure. A witness who gives evidence in trial proceedings, must do
so in the ordinary way. In our practice, lay witnesses are not usually permitted
to read from pre-prepared statements even if those statements have been
prepared by themselves. The learned judge a quo was under a
misapprehension as to the status of the affidavits, as appears from what he
said whilst Legh was being cross-examined, namely: ‘I will accept that the
affidavits in this application are proper evidence before this court’. Affidavits
filed may of course be used for cross-examination and also as proof of
admissions therein contained, but (save to the extent that they contain
admissions) they have no probative value; and in the absence of agreement,
they do not stand as the witness’s evidence-in-chief, or supplement it. And if,
by agreement, they are to be treated as such, it is unnecessary and a waste
of time and costs for them to be read into the record. A referral to trial is
different to a referral to evidence on limited issues. In the latter case, the

affidavits stand as evidence save to the extent that they deal with dispute(s) of
fact; and once the dispute(s) have been resolved by oral evidence, the matter
is decided on the basis of that finding together with the affidavit evidence that
is not in dispute.

[33] The following order is made:
The appeal succeeds with costs, including the costs of two counsel.
Paragraphs 1 to 3 and 5 to 7 of the order of the court a quo are set
aside and the following order substituted therefor:
‘(a)
It is declared that the agreement of sale concluded by the parties on 12
April 2004 in respect of the proposed portion 12 of erf 39 Sandhurst lapsed on
31 December 2005 and was of no force or effect after that date.
(b)
The defendant is ordered to pay the plaintiff’s costs of suit in respect of
the claim and counterclaims and the costs of the application proceedings.’
Paragraph 4 of the order of the court a quo stands, viz: ‘The
counterclaims of the defendant are dismissed’

_______________
T D CLOETE
JUDGE OF APPEAL

APPEARANCES:
For Appellant:

M D Kuper SC (with him S P Pincus)
Instructed by:
Faber Sabelo Edelstein, Johannesburg
Matsepes Incorporated, Bloemfontein

For Respondent:

J Both SC (with him J Bothma)
Instructed by:
Hattingh Ndzabandzaba Attorneys, Centurion
Naudés, Bloemfontein