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February 3, 2025In Vantage Goldfields SA v Siyakhula Sonke Empowerment Corporation, (Pty) Ltd and Another, the principal agreement, signed in 2017, between Vantage Goldfields (the seller) and Flaming Silver Trading (the purchaser), involved the sale of shares and claims for R310 million. The
agreement contained various suspensive conditions which were to be fulfilled by certain specified dates, failing which the agreement would lapse.
Certain of the suspensive conditions were not fulfilled prior to the specified dates, with the result that, in accordance with its terms, the agreement lapsed and was of no further force or effect. The parties, however, attempted to extend the relevant fulfilment dates and modify certain of the suspensive conditions through a series of addenda. While certain of the addenda were concluded before the agreement had lapsed, they did not extend the date for fulfilment of all of the relevant suspensive conditions.
The Supreme Court of Appeal held that the principal agreement had lapsed as, despite the addenda, certain of the suspensive conditions had not been fulfilled prior to specified fulfilment dates. While certain of the addenda purported to revive the agreement, the court held that these addenda were themselves of no force or effect as the entire agreement (including all the addenda) had lapsed on and with effect from the date on which the relevant suspensive condition was not timeously fulfilled.
Additionally, the court held that a R1 million pre-payment made in terms of the lapsed agreement was to be repaid on the basis of unjust enrichment. Since the agreement had lapsed, the payment lacked a valid contractual basis.
It is therefore imperative that parties ensure that suspensive conditions are timeously fulfilled or, where necessary, that the agreement is validly amended prior to the date on which the relevant suspensive conditions are to be fulfilled. A failure to do so will result in the agreement (including any purported addenda) lapsing and being of no further force or effect.
For expert guidance on these matters, don’t hesitate to contact our team at BDP Attorneys Rondebosch—we’re here to assist with your legal needs.