Maria Luisa Palma Codevilla v Paula Jane Kennedy-Smith NO and Others

The third and fourth respondents concluded an offer to purchase immovable property from the first respondent, subject to a suspensive condition requiring mortgage bond approval by a fixed date. The date was extended once by written addendum. The bond approval and/or guarantees were not provided by the extended deadline of 19 February 2020, causing the agreement to lapse. The following day, the parties signed a second addendum purporting to amend the suspensive condition and continue with the transaction. The appellant, who had advanced funds to the purchasers and later took cession of their rights, paid R1 950 000 into the conveyancer’s trust account. When the purchasers later sought to withdraw from the sale, the appellant claimed repayment on the basis that the agreement had lapsed and could not be revived. The seller contended that the second addendum revived or constituted a fresh agreement.

The appeal was upheld with costs. The orders of the full court and the court a quo were set aside. It was declared that the offer to purchase and the second addendum were invalid and unenforceable. The first and second respondents were ordered to repay R1 950 000 to the appellant, together with interest, and to pay costs.

The judgment reaffirms settled South African law that an agreement subject to a suspensive condition lapses automatically upon non-fulfilment and cannot be revived ex post facto by waiver or addendum. It underscores the strict application of the Alienation of Land Act’s formalities and clarifies that parties cannot resurrect a void sale of land without concluding a new compliant written contract.