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D & CLD
474/83

HARIBUDERPURSAD MAHABEER
APPELLANT

and

KAMALAWATHI SHARMA N O

GANPATH BALMOGIM
FIRST RESPONDENT
SECOND RESPONDENT

HEFER, J A.

IN THE SUPREME COURT OF SOUTH AFRICA

APPELLATE DIVISION

In the matter between
HARIBUDERPURSAD MAHABEER
APPELLANT

and
KAMALAWATHI SHARMA N O
FIRST RESPONDENT

GANPATH BALMOGIM
SECOND RESPONDENT

CORAM :RABIE, C J, KOTZé, MILLER, BOTHA et HEFER, J J A.

HEARD : 6 Mav 1985.

DELIVERED : 23 May 1985.

JUDGMENT

HEFER, J A :

The litigation between the parties to this

appeal.........2

2.

appeal has already found its way into the Law Reports on

no fewer than three occasions. It commenced with an ap-

plication which the appellant brought in the Durban and

Coast Local Division. The application was heard by MILNE

J (as he then was) and dismissed in a judgment reported

in 1982(2) S A 157. . The appellant appealed to the Full

Bench of the Natal Provincial Division and, in a judgment

reported in 1982(4) S A 242, the appeal was upheld; leave

was granted to the parties to file further affidavits and

the matter remitted to the Local Division to be heard a-

fresh. Further affidavits were filed and thereafter KUM-

LEBEN J dismissed the application again. His judgment

was reported in 1983(4) S A 421. With leave of KUMLEBEN J

the..........3

3.

the appellant has finally appealed to this Court against
the dismissal of his application.
What.gave rise to the application appears
from the three reported judgments where the allegations,
denials and counter allegations in the papers were ex-
haustively recorded. I will not erabark upon yet another
recital save for focussing attention on the crucial issue
again. It related in all three courts to the effective-
ness of first respondent's cancellation of the agreement
of sale entered into between appellant and Kamalnath Shar-
ma. Appellant never contended that first respondent was not en-
titled to cancel the agreement; nor did he dispute that he re-
ceived the letter of 14 August 1980 (annexure "C" to his

founding 4

4.

founding affidavit) which evinced a clear election on her

part to cancel the agreement in the event of his failure

to comply with the demand made therein, nor, indeed, that

first respondent was under the impression that annexure

"C" effectively served to notify him in advance of the

cancellation of the agreement in that event. He based

his attack upon the cancellation on the absence of time-

ous communication : annexure "C", he contended, conveyed

no more thán an intention to "declare the sale cancelled"

and he received no further communication until February

1981 when his attorney was informed that the sale had been

cancelled and the property resold to second respondent.

His contention as to the effect of annexure "C" was upheld

by............5

5.

by the Full Bench and all that KUMLEBEN J was concerned

with, was the effect of first respondent's failure until

February 1981 to notify the appellant of the cancellation.

That is the sole question which concerns this Court too.

The appeal falls to be decided on the basis that first

respondent decided to cancel the agreement and regarded

it as properly cancelled thirty days after the receipt by

appellant of annexure "C" (i e towards the second half of

September 1980), but that appellant was only informed

of the cancellation during February 1981.

Appellant's counsel submitted that this

lapse of time (which he maintained was unreasonably long)

brought about per se that the agreement was never effec-

tively 6

6.

tively cancelled for, so the argument went, a right to
cancel lapses unless it is exercised by informing the
guilty party of the cancellation within a reasonable - -
time. This submission cannot be upheld. A similar
proposition was rejected by this Court in Potgieter and
Another v van der Merwe 1949(1) S A 361 at p 371/2 where
Pollock's statement in his Principles of Contract (8th
ed p 618) that

"comission. to repudiate within a reason-
able time is evidence, and may be con-
clusive evidence, of an election to af-
firm the contract; and this is in truth
the only effect of lapse of time "

was accepted as correct. Unless it is read in context
this statement and particularly the description of the

evidential 7

7.

evidential effect of the lapse of time as its only effect,

may be debatable (cf the remarks of JANSEN J (as he then

was) in North Vaal Mineral Co Ltd v Lovasz 1961(3)

S A 604 (T) at p 612). But what Pollock was obviously

at pains to emphasize, was what he says at p 630 viz that

"time alone is no bar to the right of rescinding a void-

able transaction". This was, of course, the statement

of a writer on English law; it related, moreover, to

the ríght to resile from a voidable contract. But it

is clear that this view of the effect of the lapse of

time on the right to resile from such an agreement was

accepted by this Court as correctly reflecting the South

African law affecting the right to cancel an agreement

on........8

8.

on account of its breach, by virtue of a lex commissoria.

And I respectfully agree. Apart from the law relating

to prescription, there is no principle of South African

law of which I am aware that justifies a conclusion that

a right may be lost through mere delay to enforce it and

no reason exists for holding otherwise in the case of the

right to cancel an agreement.

It is often said (usually on the authority

of Voet (Comm. Ad. Pand. 18.3.2)) that the right to cancel

an agreement must be exercised within a reasonable time.

I have no quarrel with that statement - as far as it goes

But it does not follow that failure to exercise the right

within such a time results ipso iure in its loss. In

Potgieter's 9

9.

Potgieter's case (supra) this Court also approved in the
present context of a passage which appears in Pollock at
p 629 to the effect that

"the contract must be rescinded within
a reasonable time, that is, before the
lapse of atime after the true state
of things is known, so long that under
the circumstances of the particular case
the other party may fairly infer that the '
right of rescission is waived",

which puts failure to exercise the right to cancel with-
in a reasonable time in its true perspective. Depending
on the circumstances, such a failure may e g justify an
inference that the right was waived or, stated differently,
that the party entitled to cancel, has elected not to do
so (df Pienaar v Fortuin 1977(4) S A 428 (T) at p 433G;

Becker. 10

10.

Becker v Sunnypine Park (Pty) Ltd 1982(1) S A 958 (W)

at p 964/5; Smit v Hoff'man en 'n Ander 1977(4) S A 610

( O) at p 616 G-H),or it may open the door to some other

defence. In such cases the lapse of an unreasonably

long time forms part of the material which is taken into

account in order to decide whether the party entitled to

cancel should or should not be permitted to assert his

right. But per se it cannot bring about the loss of the

right. (Cf Alfred McAlpine & Son v Transvaal Provincial

Administration 1977(4) S A 310 (T) at p 325 F-G).

Appellant.'s counsel's further submission that first

respondent has been shown to have waived the right in ques-

tion cannot be upheld either. In rejecting the sub -

mission 11

11.

mission in the court a quo KUMLEBEN J (quoting INNES CJ in
Laws v Rutherford 1924 A D 261 at p 263 ) held that what had to
be established was that first respondent

"with full knowledge of her right,decided
to abandon it, whether expressly or by con-
duct plainly inconsistent with an intention
to enforce it."

Appellant's counsel challenged the correctness of this ap-
proach and submitted, on the authority of cases such as
North Váal Mineral Co v Lovasz (supra) and Becker v Sun-
nypine Park (Pty) Ltd (supra), that the enquiry relates,
in a case like the instant one, not to the innocent party's
actual decision or election whether to cancel or to af-
firm the agreement, but to the impression that his conduct
and particularly his delay in informing the other party

of 12

12.

of his decision, creates in the latter's mind; and that if

the circumstances are such that the other party may fairly

infer an election to affirm the agreement, then the in-

nocent party will be held to have waived the right to

cancel whatever his actual election might have been. (See

also Palmer v Poulter 1983(4) S A 11 (T).at p 20).

Whether this approach is in fact contrary

to the views expressed in Potgieter's case (supra) or in

Laws v Rutherford (supra), as KUMLEBEN J appears to have

thought but of which I am by no means convinced, is a ques-

tion not necessary to decide. Nor is it necessary to deal

váth the problem which arises when the innocent party's conduct

creates an impression different from his actual decision,

That 13

13.

That problem does not arise in the instant case save in the con-

text of estoppel with which I will deal later. The circumstan-

ces in this case differ materially from those in e g the Sun-

nypine case (supra) . Appellant's breach of the agreement (his

failure to pay the rates levied in respect of the property)

did not meet with silence on first respondent's part; annex-

ure "C" informed him of the breach and that in the event of

his failure to rectify it, the agreement would be cancelled.

The only conduct thereafter on first respondent's part on which

reliance could be placed for her alleged waiver of the right to can-

cel was her failure to notify the appellant of the fact that she

had exercised it. Her failure to do so has been adequately-

expLained. Appellant, moreover, does not claim thereby to have

been 14

14.

been led to believe that she had waived her right.

His case is that he was and remained throughout under

the impression that he had paid the rates and that first

respondent accordingly had no right to cancel the agree-

ment. Thus, where first respondent says that she never

waived the right; where her cohduct in selling the pro-

perty to second respondent plainly indicates that she did

not waive it, and" where appellant does not claim to have

been deceived into believing that she had done so, there

is plainly no room for a finding that waiver has been

established.

Appellant's counsel finally argued that

first respondent is estopped from relying on the cancellation.

The 15

15.

The reason why KUMLEBEN J rejected that- contention in

the court a quo appears from p 425 G-H of the report of

his judgment. In this Court appellant's counsel argued

that the representation which forms the basis for the al-

leged estoppel and which, so the argument went, could

reasonably be inferred from all the facts, was not only

that first respondent had no right to cancel the agree-

ment but also that , if she did have such a right, she had

abandoned it. What I understood counsel to convey was the

following: after receiving annexure "C" appellant went

and spoke to Watts (first respondent's attorney and told

him that he had paid the rates which had been levied until

the date of the interview; what happened further between

appellant 16

16.

appellant and Watts is in dispute; but after the inter-

view appellant received no further communication and this

inaction on first respondent's part reasonably led him to

believe that first respondent had either come to realise

that she was not entitled to cancel the agreement, or, on

the basis that she still considered herself to be entitled

to cancel-it, that she had elected not to do so.

The dispute which exists relating to what

passed between appellant and Watts can, however, not simply

be glossed over in the way that appellant's counsel did.

For if Wa'tts is correct in his assertion of what transpired

at the interview, appellant had no grounds whatsoever for

believing that the agreement would, for any reason, not be

cancelled....17

17.

cancelled. The probabilities, in my view, plainly

favour Watts' version, but be that as it may, there

was no application for viva voce evidence to be heard

and until the dispute of fact is resolved it simply cannot

be said that appellant has discharged the onus which rests

upon him to prove the facts relating to the alleged es-

toppel.

The appeal accordingly falls to be dismis-

sed. But before making the order there remains another

matter to be dealt with. The first notice of appeal to

this Court was defective; it did not state in terms of

Rule 5(2) of the Rules of this Court whether the whple

or whether part only of the order was appealed against,

Nor 18

18.

Nor was it served on second respondent, because he had

never taken part in the proceedings and had indicated

in writing on several occasions in the course thereof

that he abided the decision of the court. When the

defect in the notice was brought to the attention of

the attorneys for the appellant a fresh one was filed

(only a few days after the time allowed by Rule 5(1)

for the filing of a notice of appeal had lapsed) but

again not served on second respondent. Appellant's

attorneys anticipated that second respondent would sign

a document indicating his unwillingness to take part' in

the appeal and his preparedness to abide the decision

of this Court as well. But, after consulting first

respondent's...19

19.

respondent's attorneys, he refused to sign the docu-

ment in question. The notice of appeal was then ser-

ved on him whereupon he intimated (through first res-

pondent's attorneys) that he would only consider what

part he would take in the appeal after receipt of a for-

mal application' for condonation.

That is how matters stood by the end of

February 1984. An application for condonation was only

launched during December 1984. There was no reaction

by second respondent. First respondent filed a no-

tice indicating her intention to oppose the application

which was then enrolled in the normal course for the

day on which the appeal would be heard. At the hearing

of 20

20.

of the appeal, there was no appearance for second re-

spondent. First respondent's counsel at first opposed

the application but eventually withdrew his opposition.

save that he insisted that appellant be ordered to pay

the costs occasioned by the application for condonation,

The question now is what to do about the

costs of the application. To answer it does not re-

quire detailed discussion. All I need say is that

whereas it cannot be said ,(as he alleged in his peti-

tion) that appellant was forced into an unnecessary ap-

plication for condonation, first respondent's opposi-

tion to the application was utterly unreasonable. What

she said in her opposing affidavit did not contribute

in 21

21.

in any way to the enquiry and I have been left with the

firm impression that she merely sought to saddle the

appellant with additional costs.

In conclusion it should be stated that

the application for condonation was not opposed on the

basis that there were no prospects of a successful ap-

peal. This affects the form of the order which I am

about to make.

In the result

(1) The appellant's failure to note the

appeal timeously is condoned.

(2) Appellant is ordered to pay the costs

relating to the application for cón-

donation ..... 22
22.

donation on an opposed basis.

(3) The appeal is dismissed with costs

J J F HEFER, J A.

RABIE, CJ. )

KOTZé, J A. )
CONCUR.
MILLER, J A. )

BOTHA, J A. )

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