Christopher Charles Hughes v Nicolas Gargassoulas and Others

Mr Hughes (seller) and Mr Peter Green (purchaser) concluded a written agreement of sale on 12 February 2020 for immovable property in Hout Bay for R4 950 000. The agreement contained a suspensive condition requiring Mr Green to obtain a mortgage loan by 13 March 2020, automatically extended to 2 April 2020, failing which the agreement would lapse and the deposit be repaid. An email sent on 10 March 2020 by a conveyancing secretary indicated that Mr Green would purchase the property for cash. No written waiver or addendum signed by the parties followed. Mr Green continued to pursue bond approval, which was only granted in June 2020, after the suspensive condition deadline had passed. The purchasers later took early occupation, but the transaction collapsed and the property was vacated. Mr Hughes claimed that Mr Green had waived the suspensive condition and repudiated the contract, entitling him to retain the R1 million deposit. Mr Green ceded his rights to the repayment of the deposit to the first and second respondents, who sought a declarator and repayment of the deposit.

The application for leave to appeal was dismissed with costs.

The case reaffirms South African law on waiver of contractual rights, especially in the context of suspensive conditions in agreements of sale of immovable property. It underscores the strict requirements for proving waiver, the presumption against waiver, and the importance of compliance with contractual formalities. It also illustrates the application of section 17 of the Superior Courts Act in leave-to-appeal proceedings.