CASE NO.486/98
IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
In the matter between
Jacobus Pretorius
Appellant
and
Anton Jacobus Slabbert
Respondent
BEFORE:
VAN HEERDEN DCJ, GROSSKOPF, HOWIE, SCHUTZ JJA
AND FARLAM AJA
HEARD:
15 SEPTEMBER 2000
DELIVERED:
22 SEPTEMBER 2000
W P SCHUTZ
Non-joinder - raised mero motu - not to speculate on what uninvited party might
wish to say - appeal postponed.

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J U D G M E N T
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SCHUTZ JA:
The appellant sold a farm to the respondent in 1988.  The final balance of
the price was payable by 31 August, 1997.  On the following day the appellant
issued a mora notice threatening cancellation if the balance were not paid within 14
days.  After the 14 days had run he purported to cancel the sale.  The respondent
sued him for transfer, tendering a guarantee of payment.  The issue in the trial
before Le Roux J, sitting in the Transvaal Provincial Division was whether the
appellant had divested himself of the right to issue the notice and cancel the sale,
in the light of the admitted fact that he had ceded the rights arising from the  deed
of sale in securitatem debiti to Syfrets Bank (“Syfrets”) in 1989.  The court a quo

held in the respondent’s favour and granted an order substantially as prayed.
Syfrets was not joined and there is no clear indication in the record what its attitude
to the proceedings might have been.
Leave to appeal having been granted below, the appeal was set down before
us.  Three days before the appeal was heard the parties were asked by this court
to address the question whether there had not been a non-joinder.  At the hearing
neither counsel was able to give us a definite answer as to whether Syfrets had been
given proper notice of the proceedings, nor as to what its attitude to them might be.
Mr Louw, for the respondent, sought to persuade us that Syfrets had no
material interest in the proceedings, so that the appeal might proceed.  There is an
immediate difficulty with this argument, as it appears to contradict the very
contention upon which the respondent succeeded below and wishes to succeed
here, namely that the appellant’s rights in the deed of sale (reversionary rights
excepted) had become vested in Syfrets.  Depending upon a variety of possible

considerations, upon which the record throws no clear light, Syfrets might have an
interest.  For instance, it may have something to say about the form of order, which
envisages payment to the appellant and not itself as cessionary.  But more to the
point, as was rightly said  in Selborne Furniture Store (Pty) Ltd. Steyn NO 1970
(3) SA 774 (A) at 780 G, the substantial question is whether it is proper for this
court to proceed to draw an inference as to Syfret’s rights, without giving it an
opportunity of being heard in regard thereto.  The answer is no.
Counsel were agreed that if this conclusion were reached the argument on the
merits of the appeal would have to be postponed, in order that the attitude of
Syfrets could be ascertained and demonstrated.  Because of the general uncertainty
that prevails the proper order as to costs is to reserve them.
The following order is made: The appeal is postponed sine die in order to
allow the appellant to demonstrate what the stand of Syfrets is.  This is to be done
within two months of this order by the filing of appropriate papers.  Thereafter

either party may move to have  the appeal set down for hearing.  Costs of the
appeal are reserved.
W P SCHUTZ
JUDGE OF APPEAL
CONCUR
VAN HEERDEN DCJ
GROSSKOPF JA
HOWIE JA
FARLAM AJA