In this case, the Supreme Court of Appeal (SCA) considered whether an addendum to an Offer to Purchase, which had already lapsed, could effectively revive that agreement.
The purchasers entered into a sale agreement for immovable property on 4 February 2020. This agreement was subject to a suspensive condition that they obtain a mortgage bond by 14 February 2020. A first addendum, signed on 11 February 2020, extended the deadline to 19 February 2020. They could not secure the financing in time and the parties then signed a second addendum on 21 February 2020, mere days after the agreement lapsed.
The SCA had to determine whether this second addendum, concluded after the OTP had lapsed, constituted a revival of the original agreement.
The court relied heavily on McPherson v Khanyise Capital (2009), which held that:
- A suspensive condition cannot be extended or waived after its deadline has passed;
- An agreement that lapses due to non-fulfilment of a suspensive condition cannot be revived; and
- A new agreement must be concluded, even if on the same terms.
The court also referred to Pangbourne Properties Ltd v Basinview Properties (Pty) Ltd (2011), a principle affirmed by the Constitutional Court, which states that once an agreement lapses, no right remains that can be waived.
Based on these principles, the SCA concluded that the second addendum did not revive the original OTP, as it had already lapsed and was unenforceable. It is of the utmost importance that all parties attend to the signature of addendums timeously, before the due dates contained in the agreement.
