Joseph Mncedisi Nkengana and Nombeko Felicia Nkengana v Stephanus van der Walt Schnetler and Standard Bank of South Africa Ltd

On 22 December 2000, the appellants (purchasers) entered into a written deed of sale with the first respondent and his late wife (sellers) to purchase immovable property in Uitenhage for R260,000, payable in four monthly instalments of R50,000 and a final instalment of R60,000 due on 30 April 2001. When the appellants could not make the payments as stipulated, the parties concluded an oral agreement that the appellants would pay the respondent's monthly bond instalments to Standard Bank instead (the bond balance being approximately R203,635.76). The appellants took occupation and made various payments, albeit irregularly and in varying amounts. By February 2007, the appellants claimed to have paid approximately R238,054.83 towards the purchase price and tendered payment of the balance plus the outstanding bond amount and transfer costs. The respondent disputed the sufficiency of the tender and the exact terms of the oral agreement, claiming the payments constituted occupational rent. The application for specific performance was dismissed by both the court of first instance and the full court on appeal. The matter came before the Supreme Court of Appeal with special leave.

• Whether the appellants' tender of performance was sufficient to entitle them to specific performance of the deed of sale
• Whether new matter raised in the replying affidavit (increased tender) could be considered
• Whether the oral agreement varied the original written contract of sale or merely dealt with payment arrangements
• Whether the appellants were in mora ex re and whether interest a tempore morae was payable
• Whether the respondent had waived reliance on the time clause in the original agreement

The appeal succeeded with costs (excluding costs arising from volumes 2 and 3 of the record). The order of the full court was set aside. The first respondent was ordered to take all necessary steps to effect transfer of the property to the appellants against furnishing of a guarantee for payment of: (i) R89,805.17; (ii) the outstanding bond amount (account number 214201481); and (iii) transfer costs and transfer duty, provided that if the aggregate of (i) and (ii) did not exceed R260,000, the appellants would pay the difference to bring the total to R260,000. Standard Bank was ordered to facilitate cancellation of the mortgage bond. The Sheriff was authorised to sign documents if the respondents failed to comply. The appellants were ordered to pay the first respondent's costs up to and including delivery of their replying affidavit, and the first respondent was ordered to pay the applicants' costs thereafter.

For an uncancelled deed of sale, a purchaser is entitled to claim specific performance by tendering full performance of their reciprocal obligations, even at a late stage and even if previous tenders were insufficient. A valid tender for payment of money must be for the full amount owing to entitle the debtor to specific performance. Where a creditor has waived (expressly or tacitly through conduct) the right to rely on a time clause in a contract, the creditor is precluded from relying on the principles of mora ex re. New matter may be raised in a replying affidavit if it responds to a defence raised by the respondent and does not constitute matter that should have been included in the founding affidavit to establish a cause of action, particularly where there is no prejudice to the respondent.

The court emphasized that nothing in the judgment should preclude the respondent from pursuing remedies arising from collateral disputes regarding furniture purchases, rental payments, etc. The court indicated (without deciding definitively, as the issue was not fully argued) that it was not persuaded that the court below was wrong in holding that the oral agreement relating to occupational rent did not constitute a variation of the written agreement of sale. The court reiterated its repeated admonitions against the inclusion of unnecessary documents (such as transcripts of oral arguments and petition materials) in appeal records, citing Government of the RSA v Maskam Boukontrakteurs and Salviati & Santori v Primesite Outdoor Advertising.

This case clarifies important principles regarding specific performance of contracts of sale in South African law. It affirms that where a deed of sale remains uncancelled, a purchaser may claim specific performance at any stage by tendering full performance of their obligations, even if previous tenders were insufficient. The judgment provides guidance on the requirements for valid tender (must be for the full amount owing) and demonstrates the flexibility courts apply regarding new matter in replying affidavits when responding to defences raised. It also confirms that waiver of time clauses in contracts may occur expressly or tacitly through conduct, and that such waiver affects the operation of mora ex re. The case illustrates the principle that courts will scrutinize the true sufficiency of tender rather than becoming distracted by collateral disputes about past payments. It also reinforces the court's stance against inclusion of unnecessary documents in appeal records.