Mathewson and Another v Van Niekerk and Others

The respondents (sellers/developers) sold an erf in a township development to the applicants (purchasers) in terms of a written deed of sale concluded on 26 March 2007. Clause 17 of the deed warranted that the erf would be provided with electricity, water and sewerage services. The purchasers later alleged that no such services had been installed and, after giving notice, purported to cancel the contract and launched motion proceedings seeking relief based on a valid cancellation. The sellers opposed the application, contending that their obligation to install the services was subject to a tacit term that the purchasers first had to indicate where on the large erf the services were to be installed, which they had failed to do despite repeated requests.

The appeal was upheld with costs. The order of the North Gauteng High Court was set aside and replaced with an order dismissing the application with costs.

The case is significant for reaffirming South African principles on tacit terms in contracts, particularly that an entire agreement clause does not preclude tacit terms. It also provides a clear restatement of the stringent Plascon-Evans test for resolving factual disputes in motion proceedings and illustrates its application in contractual disputes involving land sales.