THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

NOT REPORTABLE
Case no: 734/2013

In the matter between:

BENJAMIN CHARLES JOSEPH VESAGIE NO       FIRST APPELLANT
BENJAMIN FRANCIS VESAGIE NO
SECOND APPELLANT
BENJAMIN CHARLES JOSEPH VESAGIE
THIRD APPELLANT

and

PAUL ERWEE NO

FIRST RESPONDENT
LOUIS STEFANUS VENTER NO
SECOND RESPONDENT

Neutral citation: Vesagie NO & others v Erwee NO & another (734/2013)
[2014] ZASCA 121 (19 September 2014)

Coram:
Brand, Bosielo, Shongwe and Majiedt JJA and
Gorven AJA

Heard:

8 September 2014
Delivered:
19 September 2014

Summary: Contract-sale of shares- contract which makes provision for
deferred payments of the purchase price and for the payment of interest on such
deferred payments is a credit transaction in terms of s8(4)(f) of the National
Credit Act 34 of 2005- contract null and void ab initio where seller of shares not
registered as a credit provider in terms of s40 of that Act.

___________________________________________________________________________

ORDER

On appeal from: Gauteng North High Court, Pretoria (Makgoba J sitting as
court of first instance):

1 The appeal is upheld with costs.
2 The order of the court a quo is set aside and substituted by the following
order:
„a) The claim is dismissed with costs.
b) The agreement, Annexure “A” to the plaintiff‟s particulars of claim, is
declared to be null and void ab initio.‟

JUDGMENT

Gorven AJA (Brand, Bosielo, Shongwe and Majiedt JJA concurring)

[1] This appeal turns on whether an agreement of purchase and sale provides
that interest will be payable on deferred payments. If it does, the agreement
amounts to a credit transaction under s 8(4)(f) of the National Credit Act 34 of
2005. In such a case, unless the party extending the credit is registered as a
credit provider in terms of s 40 of the Act, the agreement is unlawful. The
consequence of such a finding is that a court is required to declare the
agreement null and void ab initio.1

[2] The first two appellants, as trustees of the BEN Trust, were nominated by
the third appellant as the purchasers under an agreement for the sale of shares

1 Other consequences also ensue which will be discussed later in the judgment.

and loan accounts in various companies. The third appellant concluded an
agreement to this effect with the respondents as trustees of the ACE Trust. The
third appellant in his personal capacity guaranteed the performance of the
trustees of the BEN Trust. The shares and loan accounts were transferred to the
first and second appellants. Payments of R750 000 were made under the
agreement. No further payments were made. The respondents sued the
appellants for the balance of R14 250 000, interest and costs.

[3] By the time the matter went to trial, the only live issue between the
parties was whether the agreement in question constitutes a credit transaction as
envisaged by s 8(4)(f) of the Act. It was agreed that, if the court found that the
agreement falls within the ambit of s 8(4)(f) of the Act as a credit transaction,
the claim should fail because the ACE Trust had not registered as a credit
provider in terms of s 40 of the Act. Conversely, if the court found that the
agreement does not amount to a credit transaction, the ACE Trust would be
entitled to judgment as prayed.

[4] Section 8(4)(f) reads as follows:
„An agreement, irrespective of its form but not including an agreement contemplated in
subsection (2), constitutes a credit transaction if it is–
(f)
any other agreement, other than a credit facility or credit guarantee, in terms of which
payment of an amount owed by one person to another is deferred, and any charge, fee or
interest is payable to the credit provider in respect of–
(i)
the agreement; or
(ii)
the amount that has been deferred.‟
The parties were ad idem that the agreement is not one contemplated in
subsection (2), nor is it either a credit facility or a credit guarantee. In addition,
it does not attract a charge or fee. The only issue is whether it provides that
interest is payable in respect of the amount for which payment has been
deferred.

[5] No evidence was led. The trial court found that the agreement does not
provide for interest to be paid in respect of the amount for which payment was
deferred and that the agreement is therefore not a credit transaction. As a result,
the court held that it was enforceable by the respondents. The appellants were
ordered to pay the balance of the purchase price, interest and costs. The
appellants appeal with the leave of that court. It should be mentioned that the
respondents indicated prior to the hearing of the appeal that, although the first
respondent would be in attendance and that the appeal was opposed, no formal
appearance on behalf of the respondents would take place and no heads of
argument would be delivered.

[6] The only paragraph of the agreement which bears on the issue at hand is
paragraph 2. It is necessary to set this out in full. It reads as follows:
„2.1
Totale koopprys is R15 Miljoen waarvan die eerste R5 M betaalbaar is na 12 maande
en die res, 18 maande na ondertekening van hierdie ooreenkoms.
2.2
Rente sal gehef word teen prima minus 1 %.
2.3
„n Minimum betaling van R50 000.00 pm betaalbaar nie later as die 28e van elke
maand vanaf 28 Oktober tot 28 Februarie 2009. Daarna „n minimum betaling van
R100 000.00 per maand voor die 28e van elke maand.
2.4
Enige uitstel of verlenging van tyd vir betaling kan onderhandel word maar geskrewe
toestemming tot die terme moet 14 dae voor die prestasie datum ooreeengekom word.
2.5
Indien enige betaling of enige voorwaarde tov hierdie ooreenkoms nie nagekom word
nie:
2.5.1 sal „n finale aanmaning om te presteer gestuur word per e-mail.
2.5.2 Indien die regstelling nie binne 14 dae gemaak word na versending van die e-mail, sal
die totale uitstaande koopsom onmiddellik betaalbaar en opeisbaar wees.
2.5.3 Rente op laat betalings sal gehef word.‟

[7] The agreement was concluded on 24 October 2008. The scheme of the
agreement is as follows. There is no dispute that it provides that payment of the
purchase price is deferred. In this regard, paragraph 2.1 specifies payment of

R5 million by 23 October 2009 and of the balance by 23 April 2010. Paragraph
2.2 provides that interest shall be levied at a specified rate. Paragraph 2.3
provides that minimum monthly payments must be made. Paragraph 2.4
provides a mechanism to reach agreement if the purchasers wish to further defer
payments. Paragraph 2.5 provides what happens on breach. This is to the effect
that, if the purchasers default on any payment and persist in the default despite
written demand to remedy it within 14 days of the demand being sent by email,
the balance of the purchase price outstanding at that time would become
claimable and interest would be levied on late payments.

[8] The trial court held that paragraph 2.2 „has no meaning at all‟ but it states
that interest shall be charged at the prime overdraft rate less one percent.
Granted, it does not in terms say whether this interest is to be charged from the
outset on the amounts outstanding without any default on the part of the
purchaser. This does not, however, render the paragraph meaningless. At the
very least, the parties are agreed that it specifies the rate at which interest must
be charged on default. It must therefore be interpreted according to accepted
principles.2

[9] Makgoba J took as his starting point for interpreting documents that „a
court should …uphold the agreement rather than destroy it.‟ In support of this
departure point, he called in aid the maxim „ut res magis valeat quam pereat‟.
This court has held that the maxim operates as follows:
„It appears to me that, in construing a contract, the Court is not entitled to strain words
because of the provisions of an Act which might affect the validity of the contract, or to be
influenced by those provisions in determining whether the contract is reasonably capable of a

2 As to which see a summary of the approach in Natal Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593 (SCA) para 18.

meaning which will not make the contract invalid, but that when it has come to a conclusion
that the contract is reasonably capable of such meaning, it will apply the maxim.‟3
What is clear from this dictum, and the cases that follow it, is that the normal
principles of interpreting a contract must be applied. This will determine
whether the contract is reasonably capable of a meaning which will not make
the contract invalid. If it is not reasonably capable of bearing such a meaning,
the maxim does not apply. Where it is so capable, the maxim must be applied
and the contract held to be valid.

[10] The maxim should therefore not be used as a point of departure in
interpreting agreements. It must be applied only once this has happened and the
agreement is ambiguous but is also reasonably capable of a meaning which will
not make the contract invalid.4 It „cannot be used to justify an interpretation of a
contract contrary to its clear terms and the probable intent of the parties
thereto‟.5

[11] It must therefore be considered whether the agreement is reasonably
capable of bearing the meaning that interest is not to be levied on the deferred
payment of capital. Paragraph 2.2, providing that interest shall be paid, is not
qualified or made conditional on the occurrence of a future event. It simply
provides that interest shall be levied („gehef‟) at the rate of prime less one
percent. The plain, unvarnished meaning of these words is that interest is to be
charged by the sellers, not that it is to be charged only in certain circumstances.

[12] As was submitted on behalf of the appellants, since paragraph 2.2 follows
directly after paragraph 2.1, „it is contextually linked to the capital amount‟.

3 Hughes v Rademeyer 1947 (3) SA 133 (A) at 138.
4 This is also the thrust of the dictum in Annamma v Moodley 1943 AD 531 at 539, where it was said: „If the
agreement is capable of two meanings it should rather be construed in that sense in which it can have some
operation than in that in which it cannot have any.‟
5 Per EM Grosskopf JA in Sunshine Records (Pty) Ltd v Frohling & others 1990 (4) SA 782 (A) at 792J-793A.

This accords with the interpretation that interest is to be levied on the
outstanding capital sum from time to time. The words and the context taken
together thus support this interpretation.

[13] In addition, the location of paragraph 2.2 as a separate paragraph to the
breach paragraph in 2.5.3, lends support to the inference that the interest
mentioned in paragraph 2.2 applies without any breach needing to occur. Both
clauses specify that interest shall be levied. There is no conceivable reason why
two paragraphs would be included if interest is only to be charged in one
circumstance. If the drafters had wanted to limit the levying of interest to an
occasion of default, the logical way of doing so would have been to omit
paragraph 2.2 and stipulate the interest rate in paragraph 2.5 because interest
would not apply under any other circumstances.

[14] As was submitted on behalf of the appellants, therefore, „the apparent
purpose to which clause 2.2 is directed is the levying of interest on the capital
amount and the apparent purpose to which clause 2.5.3 is directed is the levying
of interest on late payments‟.

[15] On the general principles of interpreting agreements, accordingly, the
agreement provides that interest is to be levied on any deferred payment from
inception. The corollary of this finding is that the agreement is not reasonably
capable of bearing the meaning that interest is only to be levied in the event of
default. There is no ambiguity in this regard.

[16] Even if, after this analysis, it can be contended that any ambiguity
remains, recourse may be had to surrounding circumstances, including the
conduct of the parties „showing the sense in which they acted on the

document‟.6 As will be seen, the sense in which the respondents acted on the
agreement is totally at odds with the interpretation they now contend for.

[17] The first set of the respondents‟ particulars of claim included in the
record contains paragraph 10.4 which alleges that one of the terms of the
agreement is as follows:
„The balance of the purchase price of the shares would bear interest calculated from the date
of conclusion of the agreement at a rate 1% below the prime rate of interest . . . ‟.
After alleging a breach, the particulars aver that:
„The unpaid balance of the purchase price of the shares, inclusive of interest thereon
calculated at 1% below the prime interest rate as applicable from time to time and calculated
up to 28 February 2012 amounts to R19 252 905.20, which amount is constituted and
computed as set out in the account summary annexure “B” hereto. The ACE Trust is
furthermore entitled to interest on the aforesaid sum of R19 252 905.20 calculated at the rate
of 8% per annum (being 1% below the prime interest rate as currently applicable) from 1
March 2012 to date of payment.‟
The schedule forming annexure “B” levies interest from day one on the deferred
payments. It does not only show interest being levied after default by the
appellants. This clearly shows the probable intent of the respondents that
interest would be charged on the deferred payment of the capital sum.

[18] An amendment to the particulars of claim was precipitated by the
appellants‟ plea to the effect that the agreement amounts to a credit transaction
and that, because the respondents had not registered as credit providers in terms
of s 40 of the Act, the respondents could not base a cause of action on the
agreement. The amended particulars of claim replaced paragraph 10.4 with one
referring to interest being charged only on breach and, after alleging a breach
included the following paragraph:

6 Coopers & Lybrand & others v Bryant 1995 (3) SA 761 (A) at 768C-E.

„The unpaid balance of the purchase price of the shares and loan accounts in the amount of
R14 250 000.00 was payable by no later than 24 April 2010, being a date 18 months after the
date of signature of the agreement. By reason of the failure of the Ben Trust to make payment
of the balance of the purchase price by 24 April 2010, the ACE Trust is furthermore entitled
to interest on the sum of R14 250 000.00 calculated from 25 April 2010 to date of payment,
at a rate of 8% per annum compounded and capitalised monthly on the last day of each
month, being 1% below the prime rate of interest which has applied at all times since 24
April 2010.‟

[19] It is clear that the first time the respondents contended that the agreement
only levied interest in the event of default, was after the point was taken in the
plea. The conduct of the respondents in acting on the agreement accordingly
adds further support to the conclusion that interest is to be levied on deferred
payments and not only in the case of default.

[20] It remains to consider the finding of the court a quo that to interpret the
agreement „in such a manner that it would be rendered invalid due to the fact
that it is struck by the provisions of section 8(4)(f) of the National Credit Act,
will lead to unbusinesslike or oppressive consequences‟. Far from leading to
unbusinesslike consequences, the payment of interest on a deferred payment is a
routine provision in business agreements. This is all the more so when the merx
has been transferred and the purchaser has the use and enjoyment thereof
without full payment having been made, as is the case in the present matter.

[21] As to oppressive consequences, the learned judge held that such an
interpretation would require the respondents to refund the R750 000 paid to
them without recovering the shares transferred by them to the appellants. One
cannot, without more, make a finding that this would be oppressive. The
respondents have had the benefit of the use of the shares and loan account.
There is no evidence as to what that benefit might have been worth. I can

therefore find no warrant for such a conclusion. It is so that s 89(5)(b) in terms
provides for the refund of any money received by the credit provider. The
section which previously provided that the credit provider could not recover any
performance made under the agreement has been struck down as
unconstitutional.7

[22] The agreement in question is clearly a credit transaction as envisaged by
s 8(4)(f) of the Act. It is accordingly void ab initio. The parties are required to
make restitution of any performance which took place pursuant to the
agreement. Makgoba J erred in using as his starting point for interpretation the
point of view that a court „should uphold the agreement rather than destroy it‟.
This starting point in essence decided the very issue which was in dispute. In
this he erred and the appeal must be upheld.  Section 89(5) of the Act requires a
court to order that an agreement is void as from the date it was concluded if it is
rendered unlawful by the Act. This will therefore form part of the order.

[23] The following order shall issue:
The appeal is upheld with costs, such costs to include those consequent
upon the employment of two counsel where two counsel were employed.
The order of the trial court is set aside and replaced by the following
order:
„a) The claim is dismissed with costs.
b) The agreement, Annexure “A” to the plaintiff‟s particulars of claim, is
declared to be null and void ab initio.‟

T R Gorven

Acting Judge of Appeal

7 This was s 89(5)(c) and was struck down in National Credit Regulator v Opperman 2013 (2) SA 1 (CC).

Appearances

For Appellant:
A B Rossouw SC

Instructed by:
Van Zyl Le Roux, Pretoria
Honey Attorneys, Bloemfontein

For Respondent:

No appearance