Category Archives: Contracts


Once a couple has become engaged, you could say that they have concluded a verbal contract to get married. From that point, up until the marriage, the couple would be committed to getting married, as well as the planning and preparation leading up to it. However, in some instances, one of those in the relationship might decide to break off the engagement. This might seem unimportant, but what if the couple had gone to great lengths to plan the wedding and even went as far as changing lifestyles in the expectation of getting married. Would the person being left behind be able to sue for damages lost?

Does our law mention engagement?

Our common law has, over the years, recognised the principle that the aggrieved party has a claim for breach of promise. Traditionally this claim comprises two parts, namely:

  1. The delictual claim which the aggrieved party would have under the action injuriarum for contumelia, in other words, damages for the humiliation caused as a result of the break-up of the relationship; and
  2. The contractual claim for the actual financial loss suffered by the aggrieved party as a result of the break-up of the relationship of the parties.

In the Supreme Court of Appeal case Van Jaarsveld vs Bridges (2010), it was found that no claim in South African law exists other than actual expenses incurred in the planning and preparation of the marriage.

The judgement draws attention to a court’s right and more importantly, duty to develop the common law, taking into account the interests of justice and at the same time to promote the spirit of the Bill of Rights.

ES Cloete vs A Maritz (2013) WCH

The question whether or not the claim for breach of promise is a valid cause of action in South African law was once again considered in the Western Cape High Court. In this Court, Judge Robert Henney was the presiding Judge in the matter of ES Cloete vs A Maritz.

Miss Cloete claimed that Mr Maritz proposed formally to her in Namibia on the 9th February 1999 with an engagement ring, and she accepted. The relationship was turbulent and a decade later Maritz called off the engagement and the intended wedding. Cloete instituted action against Maritz and alleged that Maritz’s refusal to marry her amounted to a repudiation of the agreement which they had reached 10 years earlier. In his judgment, Judge R Henney said: “Clearly, to hold a party accountable on a rigid contractual footing, where such a party fails to abide by a promise to marry does not reflect the changed mores, morals or public interest of today.”

The judge also said: “As pointed out by Sinclair, The Law of Marriage Vol 1 (1996), to hold a party liable for contractual damages for breach of promise may in fact lead parties to enter into marriages they do not in good conscience want to enter into, purely due to the fear of being faced with such a claim.”


Divorce, which in earlier days was only available in the event of adultery or desertion, is now available in the event of an irretrievable breakdown of the marriage. There is no reason why a just cause for ending an engagement should not likewise include the lack of desire to marry the particular person, irrespective of the ‘guilt’ of the latter.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. (E&OE)


A1BOn 29 May 2015, in the case of Dormell Properties 282 CC v Bamberger[1], the Supreme Court of Appeal (SCA) set out the importance of, firstly, expressly pleading a suretyship clause in a plaintiff’s particulars of claim and, secondly, ensuring that the contract to which a deed of suretyship is annexed is duly signed by all parties thereto.

In the case of Dormell Properties 282 CC v Bamberger[2] (Dormell case) there were two agreements of importance. The first agreement was a written offer to lease agreement concluded between Dormell and Edulyn, duly represented by Bamberger in his capacity as sole director, in terms of which Bamberger undertook to bind himself as surety for Edulyn’s obligations under a second agreement, being the agreement of lease.[3]

The first agreement was properly signed by the parties; however, the agreement of lease was only signed by Bamberger. Annexed to the agreement of lease was a deed of suretyship which Bamberger signed. The deed of suretyship and agreement of lease were annexed to Dormell’s particulars of claim as if this suretyship was the instrument that bound Bamberger as surety and co-principal debtor for the fulfilment of the obligations of Edulyn.[4]

In the court a quo, Savage AJ found that ‘a contract of suretyship requires a valid principal obligation with someone other than the surety as debtor and the liability of the surety does not arise until this principal obligation has been contracted (Caney [C F Forsyth and J T Pretorius Caney’s The Law of Suretyship in South Africa 6 ed (2010)] at 47)’.[5] In the SCA the appellant conceded that no express reference to the first suretyship clause was made in the particulars of claim, but argued, inter alia, that the omission caused no prejudice to Bamberger.[6]

Dormell’s cause of action was based on the deed of suretyship attached to the agreement of lease and not on the suretyship clause in the first agreement. To seek to change this now would amount to an amendment of the particulars of claim and the advancing of a case which was not initially pleaded. Bamberger therefore contended that he was not given the opportunity to raise any defence which he could have raised to the suretyship clause.[7]

The SCA set out that ‘the purpose of pleadings is to define the issues for the parties and the court. Pleadings must set out the cause of action in clear and unequivocal terms to enable the opponent to know exactly what case to meet. Once a party has pinned its colours to the mast it is impermissible at a later stage to change those colours.’[8] Furthermore the court found that Dormell should have expressly alleged a valid contract of suretyship (i.e. that the terms of the deed of suretyship were embodied in a written document signed by or on behalf of the surety which identified the creditor, the surety and the principal debtor). Dormell had to allege the cause of the debt in respect of which the defendant undertook liability as well as the actual indebtedness of the principal debtor.[9]

In the Dormell case the deed of suretyship was invalid and enforceable because it was annexed to an agreement of lease which wasn’t signed by Dormell, and therefore the suretyship was in respect of a non-existent obligation. Dormell conceded that the suretyship pleaded was invalid, but argued that Bamberger would not suffer any prejudice if Dormell was allowed to rely on the suretyship in the first agreement instead. The court found that although it does have discretion regarding keeping parties strictly to their pleadings, it does not agree that this discretion reaches as far as to place a party in the disadvantageous position of not being permitted to raise any legal defence.[10]

In deciding the above, the court looked at whether Bamberger would have conducted his case materially differently, had Dormell’s case been pleaded properly. The court found that he would have, in that he would have been in the position to raise the defence of non-excussion (i.e. that Dormell should have first claimed the outstanding amounts owed from Edulyn and only if they could not pay this amount, should Dormell have claimed from Bamberger).[11] He had not raised this defence in his plea or at the trial because the deed of suretyship annexed to the agreement of lease in terms of which he had waived the defence of non-excussion (which was not signed by Dormell) was relied upon.[12]

The SCA therefore found that Bamberger would suffer prejudice if it were to allow Dormell to rely on the suretyship clause in the first agreement which was not relied upon in the particulars of claim.[13] It is therefore crucial to, firstly, expressly plead the details of a valid suretyship clause in a plaintiff’s particulars of claim and, secondly, to ensure that the contract to which a deed of suretyship is annexed is duly signed by all parties thereto. If you do not do so you may find yourself in a situation where the courts will not allow you to enforce a valid suretyship.

[1] (20191/14) [2015] ZASCA 89 (29 May 2015)

[2] (20191/14) [2015] ZASCA 89 (29 May 2015)

[3] ibid para 1-3

[4] ibid para 5

[5] Dormell Properties 282 CC v Bamberger (20191/14) [2015] ZASCA 89 (29 May 2015) para 8

[6] ibid para 8

[7] ibid para 10

[8] ibid para 11

[9] ibid para 12

[10] Dormell Properties 282 CC v Bamberger (20191/14) [2015] ZASCA 89 (29 May 2015) para 15

[11] ibid para 19

[12] ibid para 20

[13] ibid para 21

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)



Historically restraint of trade agreements were void and unenforceable unless the employer could prove that it was a reasonable agreement entered into between the parties. Fortunately for employers the position in our law has changed.

What are restraint of trade agreements?
An agreement that seeks to restrict a party’s right to carry on a trade, business or profession in such manner or with such persons as he/she sees fit, is restraint of trade.

Restraint of trade clauses are most commonly found in employment and partnership contracts, which usually takes effect after termination of the contract, or in sale of a business or practice.

Why are they controversial?

They are controversial because there is a clash of fundamental values: on the one hand there is freedom or sanctity of contract which relies on agreements being honoured, and on the other hand there is freedom of trade which is a constitutionally recognised right.

As with other contracts, restraint of trade agreements are presumed to be prima facie valid and enforceable. Whereas the onus had earlier been on the employer to prove that implementation of restraint of trade was fair and in public interest, the onus is now on the employee to show why enforcement in the particular circumstances would be against the public interest.

An unreasonable restraint is contrary to the public interest and hence unenforceable. The reasonableness of a restraint of trade clause or agreement is judged on two bases: broad interests of community, and interests of the parties themselves.

Reasonableness inter partes depends on a variety of factors:

–     Does the employer have a protectable interest?

–     Area and duration of restraint (possibility of partial enforcement)

–  Concession by the employee in the contract that restraint is reasonable, and inequality of bargaining power of parties (these factors carry little weight)

Examples of protectable interests are confidential information, trade secrets, customer connections and lists, and goodwill of the business. However, it does not include interest in the elimination of competition, and the investment of time and capital in the training of the employee.

It is not sufficient simply to label confidential information as such. In order to be confidential the information must be commercially useful, in other words capable of application in trade or industry, have economic value to the person seeking to protect it, and be known only to a restricted number of people.

With regards to trade connections, it will only be relevant when the employee has close working relations with the customers, to such an extent that there is a danger of him/her taking them with him/her when he/she leaves the business. Relevant factors here include the following:

  • duties of the employee;
  • his/her personality;
  • frequency and duration of the contact with the customers;
  • his/her influence over them;
  • nature of his/her relationship with them (degree of attachment, extent of their reliance on him/her);
  • level of competition between the rival businesses;
  • type of product sold; and
  • evidence that customers were lost when he/she left the business.

With reference to the above the following questions must be asked:

a)   Does party A have an interest deserving of protection?

b)   Is such interest being prejudiced by party B?

c)   If so, how does A’s interest weigh up qualitatively and                                  quantitatively against B’s interest in not being economically                    inactive and unproductive?

d)   Is there some broader facet of public policy that requires the                   enforcement or rejection of the restraint?

If restraint of trade agreement is reasonable inter partes, it may still be unenforceable if it is damaging to the public interest for a reason not peculiar to the parties.


Basson v Chilwan & Others [1993] 3 SA 742

Sunshine Records (Pty) Ltd v Flohing & Others 1990 (4) SA 782 (A)

Magna Alloys & Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)


In case of a person being unable to sign a document for whatever reason, there are certain regulations which should be observed to ensure the validity of the document. Someone can be requested to sign it on your behalf or you can sign it by making a mark (such as a thumb print or a cross).

Should you make a mark or someone sign it on your behalf, the document must adhere to the following requirements:

  • The will must be in writing. It can be handwritten, printed or typed.
  • The testator must sign the will at the bottom of the last page by making a mark (e.g. a thumb print or cross), or if someone signs on his/her behalf, this person must sign at the bottom of the last page in the presence and at the instruction of the testator.
  • The mark or signature of the person who signs on behalf of the testator must be made in the presence of two or more authorised witnesses as well as a Commissioner of Oaths.
  • The witnesses must acknowledge and sign the will in the presence of the testator and one another. Should the will be signed by another person, it must also be executed in the presence of the testator and a Commissioner of Oaths.
  • Should the will consist of more than one page, each page save the last must be signed, anywhere on the page, by the testator or the person who signs on his/her behalf.
  • A Commissioner of Oaths must certify that he/she is satisfied with the identity of the testator and that the will reflects the wishes of the testator.
  • The Commissioner of Oaths must sign a certificate and also sign anywhere on each page of the will.

Legislation regarding where the Commissioner of Oaths , the testator and witnesses should sign the will, as well as where and when the Commissioner of Oaths should add his certificate to the will, can be confusing. We therefore recommend that each page of the will be signed by the testator, witnesses and Commissioner of Oaths, and if the will consists of more than one page, that the certificate from the Commissioner of Oaths be added to each page.

Should a will or parts thereof be deemed as invalid after your death because these requirements were not met, it may have dramatic consequences for those whom you meant to benefit from your will. Therefore, to avoid such consequences, make sure that you meet all the necessary requirements.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.


We have all made New Year’s Resolutions. This year I will start exercising, eating healthy and spend less time at the office and more with the family. In order to fulfil this resolution, you join the local gymnasium as soon as you return from your December holiday. It does not bother you whether the agreement is for two, three or four years. This year you are going to keep that resolution!

Then winter arrives and you spend more time at the office and at the fireside and less time in the gymnasium. By August you recognise the debit order of the gymnasium on your bank statement, knowing full well that you have not been there for at least two months.

The Consumer Protection Act (“the act”) has limited the effect of fixed-term agreements containing automatic renewal clauses for a further fixed term. As the legislator has given a wide definition to the words “goods” and “services”, most fixed-term agreements will fall within the scope of the act. Section 16 of the act provides that any consumer may cancel a long-term agreement with twenty business days’ notice, which notice must be in writing, unless both parties to the agreement are juristic persons.

The act then provides that the supplier may be entitled to a “reasonable cancellation penalty” payable by the consumer for cancelling the fixed-term agreement. What constitutes a reasonable cancellation penalty will depend on the type and nature of the contract.

Lester Timothy of Deneys Reitz Attorneys uses the example of a mobile phone contract, an analogy most of us will understand. A consumer enters into a two-year contract with a mobile phone service provider and simultaneously purchases a handset to be paid by monthly instalments in the course of the two-year contract. The service provider will thus have incurred expenses regarding the handset. Therefore, in the event of the consumer cancelling the contract, it will be acceptable for the mobile service provider to charge the consumer for the outstanding balance of the handset to recover the expenses incurred.

Where a supplier incurs no significant additional cost as a result of the cancellation of the contract, the supplier will have more difficulty to establish the reasonableness of any cancellation penalty unless a discount is given.

You may therefore approach that gymnasium and notify them in writing of your intention to cancel the agreement after twenty business days. Depending on the remaining period of your contract and the wording of the agreement, you will have to pay a reasonable cancellation penalty. However, as the gymnasium did not incur significant additional costs as a result of your cancellation, you will be entitled to a discount on the remaining balance of the agreement.

Negotiate the cancellation penalty fee with the gymnasium. You may be surprised what the offer of an immediate payment as cancellation penalty can do.

And next year, rather buy running shoes, even expensive ones. They will wait patiently in your wardrobe till the following New Year’s Day …

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.


A building contractor entered a binding and legal, written building contract with a closed corporation to erect a residential house on land registered to the sole member of the corporation and a third party.

Occupation was taken and the builder released the property (and thus his builder’s lien) to the owners of the land, in spite of the final certificate still outstanding, due, owing and payable.

The building contractor has issued summons in terms of the written building contract against the corporation, which has no assets. The question arose whether the building contractor has an alternative claim against the co-owners of the land for enrichment as the land has been improved with the residence.

The development of the law of enrichment in South African was dealt a severe blow in the judgement of Couws vs Jester Pools (Pty) Limited 1968 (3) SA 563 (T) when Justice Jansen took quite a narrow view on enrichment and claims in terms thereof.

Jester Pools erected a swimming pool on a property under the impression that it was contracted by the owner, whilst in fact they contracted with a third person. The court ruled that the building contractor had no claim against the actual owner of the property based on enrichment either calculated on the increase in value of the property or the actual expense of the swimming pool.  Jester Pools had to accept the loss and pay the legal cost of the owner as well.

The keeper of his “brother’s” goods, a person or entity thus acting on behalf or in the interest of another, in certain circumstances, could incur costs or expenses in the process. The recovery of these costs or expenses can be problematic.

Depending on the facts, a claim can be instituted either on enrichment (conditio indebiti or condition sine causa) or based on unauthorised administration (negotiorum gestio).

Any claim based on enrichment, whether conditio indebiti or condition sine causa conditio indebiti or condition sine causa each has four, almost similar essential elements a claimant must fulfil to be successful.

In short, the elements entail enrichment of the other party at the expense of the keeper, impoverishment of the keeper and absence of justification thereof.

A claim in terms of the negotiorum gestio also has four essential elements.

Firstly, the affairs managed by the keeper must be those of another. The keeper can be a company, trust or a natural person and the affairs that of a company, trust or a natural person.

Secondly, the other must be oblivious of the fact that his affairs are being managed.

Thirdly, and a very important element, is that the keeper must have had the intention to manage the affairs of another.

Fourthly, the management of the affairs should be conducted in a reasonable manner. Even if the management was unsuccessful, the caretaker shall have a claim against the other.  However, if the management was unreasonable, the caretaker will have no claim.

To succeed in a claim based on the negotiorum gestio, our builder will have to fulfil all of the above essential requirements. The contractual obligations between the builder and the corporation negate the intention to manage and the reasonableness thereof. In terms of the Couws vs Jester Pools judgement the builder will be limited to a claim in terms of the contract, with the risk of an empty judgement with little if any hope to recover any of the outstanding amount.

Luckily for our builder, thirty years after the Couws vs Jester Pools matter, two judgments have paved the way for an extension of the negotiorum gestio or unauthorised administration on behalf of a third party by the “extended” actio negotiorum gestorum or the actio negotiorum utilis. This development will specifically assist the building contractor as he had no intention to manage the affairs of another and it could assist where the reasonableness of his actions is questioned.

In ABSA Bank Limited t/a Bankfin vs Stander t/a CAW Paneelkloppers 1998 (1) SA 939 (C) J Van Zyl detailed the development of South African enrichment law. The judgement will provide any reader thereof with a cursory yet detailed background knowledge of this specific area in our law.

This judgement extends the reach of the enrichment law in that, although a general enrichment action is still not accepted or proposed, the holes caused by Couws vs Jester Pools are at least plugged. 

In the second judgement, McCarthy Retail Limited vs Shortdistance Carriers CC, delivered by    JA Schutz on 16 March 2001 under case number 110/1990, the Supreme Court of Appeal again carefully considered the position. The judgement refers to the predicament of our builder, but does not make a ruling which would constitute applicable case law. The comments do take the position further and clarify the case law noted.

The perceived injustice of the Couws vs Jester Pools-judgement has been rectified.

The last two cases combined does open an alternative claim to our building contractor against the actual registered owners of the stand on which the residence has been erected. In the event of the corporation not being able to fulfil its payment obligations towards our building contractor, the owners of the stand might just find themselves indebted to their keeper.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.


A2_BAlmal van ons het al Nuwejaarsvoornemens gemaak.

Hierdie jaar gaan ek begin oefen, gesond eet, minder tyd op kantoor bestee en meer tyd met die gesin deurbring. Om jou voorneme uit te voer, sluit jy dadelik na terugkeer van jou Desembervakansie by die plaaslike gimnasium aan.  Dit pla nie eers of die kontrak vir twee, drie of selfs vier jaar is nie. Hierdiejaar gaan jy by daardie voorneme hou!

Met die aanbreek van die winter bestee jy al hoe meer tyd op kantoor en voor die kaggel en minder tyd in die gimnasium. Teen Augustus herken jy die debietorder van die gimnasium op jou bankstaat, terwyl jy goed weet dat jy twee maande laas by die gimnasium was.

Die Wet op Verbruikersbeskerming (“die wet”) beperk die effek van ‘n vastetermynkontrak wat ‘n outomatiese hernuwingsklousule vir ‘n verdere vaste termyn bevat. Aangesien die wetgewer wye betekenis heg aan die terme goedere (“goods”) en dienste (“services”) sal die meerderheid vastetermynkontrakte binne die reikwydte van die wet val. Artikel 16 van die wet maak voorsiening daarvoor dat enige verbruiker ‘n langtermynkontrak kan kanselleer met skriftelike kennisgewing van twintig besigheidsdae, tensy die kontrak tussen twee juridiese persone is.

Die wet maak vervolgens voorsiening vir ‘n redelike kansellasieboete (“reasonable cancellation penalty”) wat deur die verbruiker aan die diensverskaffer betaal moet word weens die kansellasie van die vastetermynkontrak. Wat ‘n redelike kansellasieboete behels, sal afhang van die tipe en aard van die kontrak.

Lester Timothy van Deneys Reitz Prokureurs gebruik ‘n voorbeeld wat by die meeste van ons aanklank sal vind. ‘n Verbruiker sluit ‘n tweejaarkontrak met ‘n selfoondiensverskaffer. ‘n Selfoon word gelyktydig aangekoop, die koopprys waarvan maandeliks oor die tweejaartermyn afbetaal moet word. Die diensverskaffer het dus ‘n uitgawe aangegaan wat betref die selfoon.  Sou die verbruiker die kontrak kanselleer, is dit derhalwe aanvaarbaar dat die diensverskaffer die uitstaande balans van die selfoon as ‘n redelike kansellasieboete hef ten einde sy onkostes te verhaal.

Waar ‘n verskaffer geen noemenswaardige ekstra koste moet dra as gevolg van kansellasie van die kontrak nie sal die verskaffer afslag aan die verbruiker moet gee ten einde ‘n redelike kansellasieboete vas te stel.

Jy kan dus die gimnasium nader en skriftelik twintig werksdae kennis gee van jou voorneme om die kontrak te kanselleer. Afhangend van die bewoording in die kontrak en die oorblywende  kontraktermyn, sal jy ‘n redelike kansellasieboete moet betaal. Aangesien die gimnasium nie beduidende ekstra koste aangegaan het as gevolg van die kansellasie nie, sal jy geregtig wees op ‘n afslag op die oorblywende termyn van die kontrak.

Onderhandel oor die kansellasieboete met die gimnasium. Jy sal verras wees wat ‘n onmiddellike betaalaanbod as ‘n kansellasieboete kan vermag. En koop eerder hardloopskoene volgende jaar, selfs al is hulle duur. Hulle sal geduldig in jou klerekas wag tot die volgende Nuwejaarsdag…

Hierdie is ‘n algemene inligtingstuk en moet gevolglik nie as regs- of ander professionele advies benut word nie. Geen aanspreeklikheid kan aanvaar word vir enige foute of weglatings of enige skade of verlies wat volg uit die gebruik van enige inligting hierin vervat nie. Kontak altyd u regsadviseur vir spesifieke en toegepaste advies.