Written by Roy Bregman, admitted attorney with over 51 years' experience.
Last updated: 6 November 2026
Key Takeaways ● A suspensive condition that is not fulfilled, or validly waived, by the agreed date makes the sale lapse automatically. No notice or cancellation is needed. ● A lapsed sale cannot be revived by an addendum that "extends" the deadline. The Supreme Court of Appeal confirmed this in 2024. ● Extensions and waivers work only if they are in writing and completed before the deadline. To go ahead after a lapse, the parties must sign a new deed of sale. ● Until a new agreement is signed, the seller is free to sell to someone else, and the original buyer has no claim to the property. |
A buyer signs an agreement to purchase a commercial or residential property, subject to bond approval within 30 days. The bank approves the loan on day 32. Relieved that finance is in place, the buyer and seller exchange friendly emails, s
Whake hands and carry on as if nothing has happened.
In South African law, that assumption is often fatal. There may
be no contract left to enforce, and the problem usually surfaces only when one
party changes its mind or a better offer arrives.
This article explains how suspensive conditions work, what the
courts have said recently, and the steps buyers, sellers and practitioners
should follow.
What is a
suspensive condition?
A suspensive condition suspends the operation of the core
obligations of a contract, such as delivering the property and paying the
price, until a future, uncertain event occurs. Typical examples are bond
approval, the sale of the buyer's existing property, or a regulatory consent (Design
and Planning Service v Kruger 1974 (1) SA 689 (T) at 695C; Corondimas v
Badat 1946 AD 548).
What happens
while the condition is pending?
The parties are already bound to each other. Neither may
withdraw unilaterally, and each must refrain from preventing the condition from
being fulfilled. If the condition is fulfilled on time, the agreement becomes
unconditional and fully enforceable. If it is not, the agreement falls away.
What happens
if the deadline is missed?
The agreement lapses automatically, by operation of law (Fairoaks
Investment Holdings (Pty) Ltd v Oliver [2008] ZASCA 41).
No breach, no
notice
A failed condition is not a breach of contract. No letter of
demand, notice placing a party in mora (in default), or notice of
cancellation is needed. The parties are restored to their positions before the
agreement, and any deposit must be repaid in accordance with the agreement,
usually with the interest earned on it while it was held in trust.
No date in
the agreement?
Where the agreement does not fix a date for fulfilment, the
condition must be fulfilled within a reasonable time. A clear date, and
preferably a time, avoids that uncertainty.
Can the
parties extend the deadline after it has passed?
No. The most common and costly mistake is to sign an addendum
extending the deadline after it has already passed. An agreement that no longer
exists cannot be amended, so there is nothing for the addendum to attach to.
Why the law
requires a new agreement
Section 2(1) of the Alienation of Land Act 68 of 1981 provides:
"No alienation of land after the commencement of this
section shall, subject to the provisions of section 28, be of any force or
effect unless it is contained in a deed of alienation signed by the parties
thereto or by their agents acting on their written authority."
Once the original agreement has lapsed, any agreement to go
ahead is a new alienation of land. It must be a written deed of alienation,
signed by both parties, that contains all the material terms, including the
description of the property, the price and the payment terms (Fairoaks).
A handshake, an exchange of emails, or a short addendum stating that "the
bond approval date is extended" does not meet that standard.
The parties may sign a new agreement on the same terms. If they
do, it must contain a fresh, future date for each condition. A new agreement
that simply repeats the old, expired date is subject to a condition that can no
longer be fulfilled.
Can a buyer
waive the condition instead?
Yes, but only within strict limits. A condition inserted solely
for one party's benefit, such as a bond clause protecting the buyer, may be
waived by that party:
● before the deadline expires, and in the manner the agreement
requires (often written notice to the seller);
● only by the party it benefits, because a condition that protects
both parties cannot be waived by one of them alone.
A buyer cannot "waive" the bond condition on day 31 or
day 32 and so revive the sale.
What works
before and after the deadline?
|
Step |
Before the
deadline |
After the
deadline |
|
Extend the
date by written addendum signed by both parties |
Valid |
Ineffective:
nothing is left to extend |
|
Waive a
condition inserted for your sole benefit |
Valid, if
notice is given as the agreement requires |
Ineffective |
|
Rely on
emails, WhatsApp or a handshake |
Risky: may
not satisfy the non-variation clause or s 2(1) |
Ineffective |
|
Sign a new,
complete deed of sale |
Not needed |
The only
way to proceed |
Do emails and
electronic signatures count?
Most deeds of sale contain a non-variation clause requiring any
amendment to be in writing and signed by both parties, and our courts enforce
these clauses (SA Sentrale Ko-op Graanmaatskappy Bpk v Shifren 1964 (4)
SA 760 (A); Brisley v Drotsky 2002 (4) SA 1 (SCA)). Informal assurances
by telephone, WhatsApp or email will not alter a contractual deadline.
The Electronic Communications and Transactions Act 25 of 2002
excludes agreements for the sale of immovable property from its general
recognition of electronic signatures. In Borcherds v Duxbury [2020]
ZAECPEHC 37 the court accepted an image of a handwritten signature applied
through DocuSign, but the judgment has been criticised for not engaging with
that exclusion. Until the position is settled, any extension, waiver notice or
new deed of sale should be signed in wet ink.
Is there any
way to save a lapsed sale?
Fictional
fulfilment
Where a party deliberately prevents a condition from being
fulfilled to escape the contract, the law treats the condition as fulfilled (MacDuff
& Co Ltd v Johannesburg Consolidated Investment Co Ltd 1924 AD 573; Scott
v Poupard 1971 (2) SA 373 (A)). A buyer who never applies for a bond, or
who withdraws an application, cannot rely on the failed condition to walk away.
The doctrine requires deliberate conduct by the party concerned.
Where a bank or authority is simply slow, it does not apply and the agreement
lapses in the ordinary way.
What have the
courts said recently?
Three judgments show how strictly the courts apply these rules.
Palma
Codevilla v Kennedy-Smith NO (Supreme Court of Appeal, 2024)
The facts: The buyer's bond
condition had already been extended once and was not met by the new deadline of
19 February 2020. The parties signed a second addendum the following day to
extend it again.
The decision: The majority
held that the second addendum could not revive the lapsed agreement, even
though the parties clearly wanted to proceed. Two judges dissented, but the
majority view is binding ([2024] ZASCA 136).
Africast
(Pty) Ltd v Pangbourne Properties Ltd (Supreme Court of Appeal, 2014)
The facts: The agreement allowed
the condition to be waived only by written notice on or before the fulfilment
date. No such notice was given, and the condition was not fulfilled in time.
The decision: The court
held that the agreement never came into operation ([2014] ZASCA 33). Waiver
must follow the method and timing the agreement prescribes.
Abrinah 7804
(Pty) Ltd v Kapa Koni Investments CC (Northern Cape, 2017)
The facts: After a suspensive
condition failed, a party sought to waive it and hold the other to the sale.
The decision: The court
held that a lapsed agreement cannot be revived by waiving the condition after
the event (2018 (3) SA 108 (NCK)).
What does a
lapse cost the parties?
● A better offer: If property values have risen or a better offer arrives, the
seller may accept it. The original buyer has no claim for transfer.
● Transfer: A conveyancer cannot lodge transfer on a lapsed agreement. If
the lapse is discovered during the transfer process, the transaction must be
restarted with a new deed of sale.
● Commission: A property practitioner's commission usually depends on a
valid, unconditional sale. A lapse may defeat the claim unless the mandate
provides otherwise. Practitioners are regulated by the Property Practitioners
Act 22 of 2019, in force since 1 February 2022.
How do you
protect the sale, step by step?
1. Identify every suspensive condition and record exactly what
event fulfils it, such as written approval of a loan of a stated amount.
2. Fix a specific date, and preferably a time, for fulfilment of
each condition.
3. State whose benefit each condition is for, and how it may be
waived: in writing, to whom and by when.
4. Include a mechanism for extending the date by written agreement
signed by both parties before it expires.
5. Diarise every deadline for the buyer, seller, conveyancer,
property practitioner and bond originator, with reminders well before each
date.
6. Make sure the buyer applies for finance promptly and keeps the
application alive.
7. Send written proof of fulfilment, such as the bank's grant
letter, to the other party and the conveyancer before the deadline.
8. If a deadline is at risk, sign an extension or deliver a waiver
notice in wet ink before it expires, not after.
What should
you do if the deadline has already passed?
Treat the agreement as lapsed and do not sign an addendum that
"extends" the expired date. If both parties still want to proceed,
sign a new, complete deed of sale with fresh, future dates for every condition,
and tell the conveyancer, bond originator and property practitioner. If the
other party refuses, take advice immediately on whether fictional fulfilment or
a waiver given in time may apply.
What is the
bottom line?
A suspensive condition deadline is absolute. Fulfil the
condition, extend the date or waive it in writing before the deadline expires.
After that, the only way forward is a new agreement, and the other party is
free to refuse.
Frequently
asked questions
Can a
suspensive condition be extended after the deadline has passed?
No. Once the deadline passes without fulfilment or a valid
waiver, the agreement lapses automatically and there is nothing left to extend.
The Supreme Court of Appeal confirmed this in Palma Codevilla v
Kennedy-Smith NO [2024] ZASCA 136. The parties must sign a new deed of sale
that complies with section 2(1) of the Alienation of Land Act.
Does the
seller have to cancel the agreement if the bond is not approved in time?
No. A failed suspensive condition is not a breach of contract,
so no notice of cancellation or letter of demand is needed. The agreement falls
away by operation of law on the deadline.
Can the buyer
waive the bond condition?
Yes, if the condition was inserted solely for the buyer's
benefit and the waiver is given before the deadline, in the manner the
agreement requires. A waiver after the deadline cannot revive the sale.
What happens
to the deposit if the sale lapses?
The parties are restored to their positions before the
agreement, so the deposit must be repaid in accordance with the agreement,
usually together with the interest it earned while held in trust.
Can we sign
an extension or a new deed of sale electronically?
The law is unsettled. The Electronic Communications and
Transactions Act excludes sales of immovable property from its general
recognition of electronic signatures, and the one judgment that accepted a
DocuSign signature has been criticised. Sign in wet ink to be safe.
|
Need help with a property sale that is running out of time? Whether you are a buyer waiting on the bank, a seller weighing
a better offer, or a practitioner who has just spotted a missed date, the
days before a deadline matter most. Speak to us before you sign an addendum,
send a waiver or walk away. We will tell you plainly where you stand and what
to do next. Call: +27 (0)11 646
0335 Email:
roy@bmalaw.co.za Website:
bregmans.co.za Bregman Moodley Attorneys Inc. Taking the Sting Out of Legal
Problems Since 1974. |
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