JUDGMENT
Exception
HOFF,
J:
[1]
This is an exception taken to the particulars of claim of plaintiff
on the basis that it lacks the necessary averments to sustain a
cause of action
[2]
This Court dismissed the exception on 14 October 2010 indicating
that reasons would be provided in due course. These are the reasons.
[3]
The parties concluded a written agreement of sale of land for the
purchase price of N$120.000.00.
The
parties agreed that the purchase price of the property amounted to
30 cows with calves which had to be delivered within 90 days.
The
parties subsequently amended the agreement of sale pertaining to the
purchase price and agreed orally that the defendant shall pay to the
plaintiff the sum of N$120.000.00 together with the delivery of six
young breeding cows/heifers in good condition.
[4]
The exception relates to the no-compliance of a non-variation clause
contained in paragraph 7 of the initial contract which reads inter
alia as
follows:
"... that
the terms of the agreement constitutes the whole agreement between
the seller and the purchaser and that no variation, alteration,
modification or suspension of any of the terms of this agreement of
sale shall be of any force or effect unless committed to writing and
signed by the seller and the purchaser."
[5]
It is common cause that the amended agreement was an oral
agreement.
[6]
The exception was thus taken against the particulars of claim since
the plaintiffs did not attach or plead a written
amended
agreement between the parties and that plaintiff could not rely on
any term of the oral agreement which is in violation of the
non-variation clause.
[7]
It was submitted on behalf of the defendant by Ms Angula that it is
now settled law that if a written contract provides that any
variation of its terms should be in writing, the parties will be
bound to such a provision and any purported variation which is not
in writing will be void.
[8]
This Court was referred to SA
Sentrale Ko-op Graanmaatskappy Bpk v Shifren en Andere 1964 (4)
SA760 (A) which
confirmed an Orange Free State Provincial Division decision that a
clause in a written agreement which provides that
"any variations in its terms of this agreement ... shall be in
writing otherwise the same shall be of no force or effect" does
not bring about a substantial limitation of contractual freedom and
is binding: consequently evidence of an oral agreement varying the
written in inadmissible.
[9]
In Brisley
v Drotsky 2002 (4) SA 1 SCA the
Supreme Court of Appeal in South Africa re-affirmed the principle
laid down in Shifren
(supra) viz.
that an entrenchment clause in a written contract providing that all
amendments to the contract have to comply with specified formalities
is still binding and remains in force.
[10]
It was further contended on behalf of the defendant that in terms of
section 1 of the Formalities in Respect of Contracts of Sale of Land
no contract of sale of land shall be of any force or effect if
concluded after the commencement of that Act (Act 71 of 1969) unless
it is reduced to writing and signed by the parties thereto or by
their agents acting on their authority.
[11]
The plaintiff pleaded in its particulars of claim that plaintiff
duly complied with its obligations by effecting delivery and
transfer of the immovable property to the defendant. This must be
taken to be true. The dispute was the exact amount to be paid. It
furthermore must be accepted that the amount of N$120.000.00 was
paid since plaintiff sues for specific performance in terms of the
agreement namely the delivery of 6 young breeding cows/heifers in
good condition, alternatively for payment of the sum of N$36.000.00
being the value of 6 young breeding cows/heifers in good condition.
[12]
Paragraph 5 of plaintiff's amended particulars of claim reads as
follows:
"A dispute
arose between the plaintiff and the defendant as to the purchase
price to be paid in terms of the written agreement of sale
aforesaid, whereafter on 28 June 2007 the plaintiff - represented by
Mr Mathiam Hoffmann - and the defendant - represented by Mr Poenie
Weakly - entered into an oral agreement in terms of which the
dispute between the plaintiff and the defendant concerning the
purchase price was settled on the basis that the defendant shall pay
to the plaintiff the sum of N$120.000.00 together with the delivery
of 6 young breeding cows/heifers in good condition."
[13]
In a letter dated 28 June 2007 (and marked "C") the legal
representatives of the plaintiff stated inter alia the following:
"We confirm
that the matter has been settled as follows:
1. Mr
Weakly will deliver 6 (six) cows to Mr Hoffmann before the end of
the
week;
and
2. Mr
Hoffmann will be entitled to the full N$120.000.00 on the day of
registration.
Over and above
the 6 (six) cows and the N$120.000.00, the parties shall have no
further claims against each other."
[14]
Subsequently in a letter dated 11 July 2007 addressed to plaintiff's
legal representatives by defendant's legal representatives the
following appears inter
alia:
"We confirm
that you informed writer hereof that the final purchase price is
N$120.000.00 plus 6 head of cattle.
We will contact
you immediately after date of transfer to make the necessary
arrangements for the delivery of 6 head of cattle.
We further
confirm that as date hereof no party shall present or in future have
any further claim(s) the other in respect of the property subject to
their respective rights as per the deed of transfer and that Fisher,
Quarmby & Pfeifer will ensure to effect transfer of the property
to our client immediately."
[15]
It was submitted by Ms Angula that no authority was referred to by
counsel appearing on behalf of the plaintiff that such a valid oral
compromise could be concluded in violation of a non-variation
clause. She submitted, with reference to the case of Karson
v Minister of Public Works 1996 (1) SA 887 ECD, that
even where there was such a compromise, the terms of such comprise
must have been in writing in compliance with the non-variation
clause of the written agreement.
[16]
In Karson
(supra) the
court held in order for there to be a valid compromise or
transaction there must have been a dispute or uncertain obligations
which the parties by mutual assent had agreed to resolve by creating
a fresh set of contractual rights and obligations.
[17]
The court on the facts in Karsen
(supra) found
that at best for the plaintiff the payment made "in
full and final settlement for all amounts due and owing in respect
of the purchase of the property" was
an invitation to the defendant to vary
the
contractual relationship then existing between them under the deed
of sale.
[18]
It is in this context that it was held at p 894 H that such
variation
would
in any event have been unenforceable due to it not having been
reduced to writing and signed by the parties as required by the deed
itself.
[19]
In the present case the plaintiff did not plead that there was an
oral variation
of
the written contract concluded between the parties, but that there
was a compromise i.e. settlement by agreement of a dispute. The
dispute related to the purchase price.
[20]
A compromise, being a contract must thus reflect that there was
consensus between the parties.
[21]
Being a contract, a compromise can only be a valid compromise
agreement, i.e. a binding agreement of compromise, if there was an
offer
of
compromise which was accepted
by
the other party.
[22]
In Karson
(supra) at 893 f the
nature of a compromise was stated as follows:
"It is well
settled that the agreement of compromise, also known as transaction,
is an agreement between the parties to an obligation, the terms of
which are in dispute, or between parties to a lawsuit, the issue of
which is uncertain, settling the matter in dispute, each party
receding from his previous position and conceding something, either
by dismissing his claim or by increasing his liability-"
[23]
In Georgias
and Another v Standard Chartered Finance Zimbabwe Ltd. 2000 (1) SA
126 ZSC Gubbay CJ explained
the effect of a compromise as follows at 139
A:
"Its effect
is the same as res
judicata on
a judgment given by consent. It extinguishes ipso
jure any
cause of action that previously may have existed between the
parties, unless the right to rely thereon was reserved."
[24]
It was submitted by Mr Corbett that in the present case no such
right was reserved by anyone of the litigants.
[25]
Gubbay
CJ continues
at 139
B as
follows:
"As it
brings legal proceedings already instituted to an end, a party sued
on a compromise is not entitled to raise defences to the original
cause of action."
and
at 139 c
"Unlike
novation, a compromise is binding on the parties even though the
original contract was invalid or even illegal."
[26]
In Hamilton v Van Zyl 1983 (4) SA 379 ECD at 383 G - H it was held
that not only can the original cause of action no longer be relied
upon, but a defendant is not entitled to go behind the compromise
and raise defences to the original cause of action when sued on the
compromise.
[27]
It appears from the aforesaid that a valid compromise had been
concluded between the plaintiff and the defendant and as a result
the non-variation clause (in the absence of any suggestion that the
right to rely thereon was reserved) is of no force or effect.
[28]
Plaintiff's particulars of claim do disclose a cause of action and
in the circumstances the exception cannot be upheld.
HOFF,
J
ON
BEHALF OF THE PLAINTIFF: ADV.
CORBETT
Instructed
by: FISHER,
QUARMBY & PFEIFER
ON
BEHALF OF THE FIRST DEFENDANT: MS
ANGULA
Instructed
by: LORENTZ ANGULA INC.
Saamspan Farming CC v Weakly (I 1509/2008) [2010] NAHC 183 (05 November 2010);