A recent judgment by the High Court in the Northern Cape, Robertson v Fourie [2021] ZANCHC 15, dealt with the issue of waiver in terms of an oral agreement of sale ("Sale Agreement"). The Sale Agreement was entered into between two parties for two Tsessebe cows, both of which were pregnant and in good condition. A brief background of the matter is set out below.

Robertson approached Fourie, a livestock agent, to procure and deliver two certified pregnant Tsessebe cows. Fourie found a seller, Gers, and proceeded to negotiate a purchase price of R80 000 per cow. Payment was to be made by Robertson in three instalments, namely, R91 200 within a few days of delivery and R20 000 deposit on the second cow. The balance of the purchase price would be paid by Roberston at a later stage.

In concluding the Sale Agreement, the parties arrived at Gers' farm for the purpose of certifying the cows as pregnant and ensuring that they were in good condition. To achieve the certification, a veterinarian appointed for this purpose proceeded to anaesthetise the two cows and load them onto Robertson's vehicle. The last step to verify whether the cows were indeed pregnant was to use a scanner, however, the veterinarian realised at that stage that she did not have one in her immediate possession.

Robertson insisted that he wanted the cows certified pregnant and Gers suggested to him that he did not have to take the animals back to his farm. The veterinarian examined the cows and found them healthy. Based on this finding, both Robertson and Gers surmised that in all probability the cows were indeed pregnant given, amongst other things, the time of year. The verification therefore did not take place and consequently a term of the Sale Agreement could not be performed.

The cows were then provided with an antidote and loaded onto Robertson's vehicle to transfer them to his farm. Robertson made the two payments as per the Sale Agreement, however he failed to pay the balance of the purchase price. His reasons for failing to pay the balance were that one of the cows had died on the farm and the other had failed to calve.

The dispute regarding the Sale Agreement was brought before the magistrate court and the court a quo found that Robertson had waived the requirement of pregnancy. The matter was taken on appeal and the dispute the court had to resolve was whether to uphold the decision of the court a quo or to set it aside.

In making its finding, the court discussed the principles of waiver. The onus is on the party asserting waiver to prove it and therefore the onus was on Robertson to support his argument that the court a quo had erred in finding that he had waived the pregnancy requirement. The court relied on the matter of Road Accident Fund v Mothupi 2000(4) SA 38 (SCA) in discussing inferred waiver and the test to determine whether there was an intention to waive.

It is a trite legal principle that waiver of a right is never presumed. The test to determine intention to waiver is objective. First, the intention to waive must consist of what is termed as outward manifestations. This can consist of words or of some other form of conduct from which the intention to waive is inferred. This can also include inaction or silence where a duty to act or speak exists.

Secondly, mental reservations, not communicated, are of no legal consequence. Thirdly, the outward manifestations of intention are judged from the perspective of the other party concerned, which is from the perspective of the reasonable person standing in his shoes.

Applying the principles to the facts, the court found that the outward manifestation of the choice that Robertson made can be seen in the words that he used at the time the Sale Agreement was being finalised. It can also be seen in his conduct which manifested itself in the fact that he decided to take delivery of the cows and had them transported to his farm.

Robertson was also aware that no other pregnancy test had been performed on the animals and he was provided with the option not to take the cows by Gers. Despite being aware that there was no guarantee nor equipment at that time to confirm that the cows were pregnant, Robertson still decided to accept them.

The court also noted that the fact that Robertson did not negotiate a reduced price should the cows turn out not to be pregnant, could reasonably have been interpreted, in the midst of the uncertainty as to pregnancy, that he had accepted the risk of the animals not being pregnant.

It would also reasonably have been expected of Robertson, if he intended to enforce his right to receive pregnant cows, to have been proactive in having them scanned for pregnancy within a reasonable time after taking delivery of the animals. He did not do so.

The court upheld the court a quo's decision in that Robertson had waived the contractual requirement of pregnancy and the appeal was dismissed with costs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.