Once the contract has lapsed, the contract cannot be revived or amended through a subsequent addendum. Any attempt to do so would be legally ineffective. Property practitioners and the parties to the contract should accordingly pay close attention to the time frames within which suspensive conditions are to be complied with. If the need for an addendum to extend or amend a suspensive condition arises, such addendum should be made before the expiry of the time allowed for in the suspensive condition.
In Maria Luisa Palma Codevilla v Paula Jane Kennedy-Smith NO and Others (494/2023) [2024] ZASCA 136 (10 October 2024), the court considered the argument that a contract was revived by an addendum that was concluded after the expiry of a suspensive condition. The court inevitably held that the contract lapsed on non-fulfilment of the suspensive condition and that the addendum, which purported to revive the contract by extending the suspensive condition, was invalid and unenforceable.
In Vantage Goldfields SA (Pty) Ltd v Siyakhula Sonke Empowerment Corporation (Pty) Ltd and Another (853/2023) [2025] ZASCA 01 (9 January 2025), the court reiterated and emphasised that a contract lapses and becomes unenforceable on the day on which the suspensive condition is not complied with. The court, however, provided some guidance on the available avenues should the parties to the lapsed contract wish to continue their contractual relationship. The first option available is that the parties conclude an entirely new contract on the same or similar terms as the initial contract concluded between them. The second option is that the parties conclude a revival or reinstatement contract to reinstate the provisions of the lapsed contract. When following the latter route, the parties of the contract should take care to remove or amend the suspensive condition that caused the initial contract to lapse. Without such adjustments, the new contract would be rendered void immediately, as the original suspensive condition would remain unfulfilled.
The lapsing of a contract due to non-fulfilment of a suspensive condition is not a mere technicality. It results in the contract becoming void and unenforceable. Property practitioners play a critical role in ensuring that parties are aware of and comply with suspensive timeframes to avoid legal and financial consequences. The courts have made it clear that once a suspensive condition is not met by its due date, the agreement cannot be rescued through late addenda. Should the parties wish to proceed, they must either enter into a new agreement or carefully draft a reinstatement contract that addresses the causes of the initial lapse. In an unpredictable property market, where financing often falls through due to fluctuating interest rates or changing buyer circumstances, all parties must act proactively. As the adage goes, “prevention is better than cure”, early legal advice and diligent monitoring of contractual deadlines remain the most effective safeguards.
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