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Analyzing the Justification in a Recent Contractual Dispute Case

Contract dispute


In the recent appellate decision from the Gauteng Division of the High Court, Pretoria, the case of Nel v Cilliers addressed critical questions regarding the enforceability of contractual agreements under the National Credit Act (NCA), 35 of 2005. This case revisits the complex dynamics of contracts, specific performance, and the severability of unlawful clauses within an agreement.

The Core of the Dispute

The primary issue revolved around two contracts between Mr. JJG Nel (first appellant) and Mr. PPJ Cilliers (respondent) concerning an investment in a golf estate development. Initially, the contracts appeared straightforward, involving the sale of shares and subsequent commitments tied to the development’s progress. However, the enforceability of these contracts came into question due to alleged non-compliance with the NCA, specifically sections 8 and 40, which govern credit agreements and registration requirements for credit providers.

Key Judicial Findings

1. Contractual Validity and NCA Compliance:

   – The appeal focused on whether the clauses of the second contract (D2) fell under the ambit of the NCA and if they were severable from the contract if found non-compliant. The court acknowledged a pre-trial concession that certain clauses of D2 were indeed within the scope of the NCA and, importantly, not severable from the remainder of the contract.

2. Abandonment and Substitution of Contracts:

   – It was contended that the first contract (D1) had been replaced by D2 due to non-performance under the initial terms. The courts delved into whether the first agreement was entirely abandoned or if it could be revived following the failure of D2.

3. The Outcome of Appeals:

   – The appellate court overturned the full court’s decision by rejecting the notion that D1 was abandoned or inchoate. It concluded that D1 did not constitute a credit agreement under the NCA and was thus enforceable. The court ordered the respondent to pay Mr. Nel R5 million with interest, alongside legal costs, as initially agreed in D1.

Legal Implications and Consequences

The decision underscores the necessity of clarity in drafting contracts and the implications of the NCA on commercial agreements. This case illustrates the potential complexities when agreements involve deferred payments or financial terms that could classify them as credit transactions under the NCA.

Frequently Asked Questions (FAQs)

1. What does it mean for a contract to be “not severable”?

   – If clauses within a contract are declared unlawful and are not severable, the entire contract can be invalidated. This depends on whether the unlawful provisions are central to the agreement’s purpose.

2. How does the National Credit Act impact commercial agreements?

   – The NCA requires certain contracts where credit is extended, and the deferment of payment is involved to comply with its provisions, including registration as a credit provider. Failure to comply can render such agreements unenforceable.

3. What is specific performance in legal terms?

   – Specific performance is a legal remedy where the court orders the party who breached the contract to fulfil their obligations as per the contract terms, rather than compensating the other party with money.

4. Can a contract be revived after being replaced by another?

   – Revival of a contract depends on the intentions of the parties and the circumstances under which the subsequent agreement was made. If the original contract was not formally terminated or considered void by both parties, it might still be enforceable.


Nel v Cilliers provides a significant precedent on how contracts should be interpreted and enforced under the National Credit Act. It serves as a cautionary tale for investors and legal practitioners about the critical nature of compliance and the potential pitfalls of contractual agreements in the realm of commercial developments. This case reaffirms the principle that clear, compliant, and conscientious contract drafting is paramount in business transactions.

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