So, what exactly is a suspensive condition?

In the case of Gravitek CC v Cartmel Investments CC and Others (7526/2015) [2019] ZAKZDHC 11 (21 June 2019) the court summarized the definition and effect of a suspensive condition as follows:

“Suspensive conditions suspend the rights and obligations of contracting parties until an uncertain future event occurs. Upon the occurrence of the event, the contract is brought into existence and the rights and obligations of the parties become enforceable.

The effect of the non-fulfilment of a suspensive condition is that the suspended rights and obligations of the contracting parties never come into existence. The following dictum in Mia v Verimark Holdings (Pty) Ltd  [2010] 1 All SA 280 (SCA) para 1 concisely sets out the legal effect of a suspensive condition.   

“The conclusion of a contract subject to a suspensive condition creates ‘a very real and definite contractual relationship’ between the parties. Pending fulfilment of the suspensive condition the exigible content of the contract is suspended. On fulfilment of the condition the contract becomes of full force and effect and enforceable by the parties in accordance with its terms. No action lies to compel a party to fulfil a suspensive condition. If it is not fulfilled the contract falls away and no claim for damages flows from its failure. In the absence of a stipulation to the contrary in the contract itself, the only exception to that is where the one party has designedly prevented the fulfilment of the condition. In that event, unless the circumstances show an absence of dolus on the part of that party, the condition will be deemed to be fulfilled as against that party and a claim for damages for breach of the contract is possible.”

[18]     To summarise, the general effect of the non-fulfilment of a suspensive condition in a contract is that such contract is unenforceable. To quote Shakespeare “life cannot be breathed into a corpse”.

Practically, would this mean that if the contract has a suspensive condition, and that it wasn’t fulfilled, one would be able to resolve the problem by entering into an addendum?

This question was specifically considered by the Supreme Court of Appeal in the case of  Vantage Goldfields SA (Pty) Ltd v Siyakhula Sonke Empowerment Corporation (Pty) Ltd and Another (853/2023) [2025] ZASCA 01 (9 January 2025).

In this matter the parties did not comply with the suspensive conditions, and entered into multiple addendums in attempt to rectify the situation.

The court held that the addendums was not sufficient to revive a contract which already lapsed, the parties must negotiate a new contract if the suspensive condition was not met. It was further emphasized that once a suspensive condition was not met, the contract, which includes all the addendums thereto, becomes void.

Therefore, an addendum cannot save a contract that lapsed due to non-fulfilment of a suspensive condition.

This case highlights the necessity of obtaining legal advice before entering into a contract.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.