In Phoenix Salt Industries (Pty) Ltd v The Lubavitch
Foundation of Southern Africa, the Supreme Court of Appeal
("the SCA") was dealing with a
contractual dispute. The key question is – is a waiver
impacted by the presence of a non-variation clause
("NVC") in a contract?
Fundamental Points
A waiver is a voluntary abandonment of a known existing right,
benefit, or privilege. A waiver must be a deliberate abandonment,
either expressly or by conduct, plainly inconsistent with an
intention to enforce such a right. To trace a waiver, one must
scrutinise the conduct of the contracting party. Whether there is a
waiver or not is a matter of evidence.
An NVC is a contractual term which stipulates that without
certain preconditions being met, alterations/amendments to a
contract are of no force and effect. This relates to alterations
needing to be reduced to writing and signed by all contracting
parties for the alterations to be of force and effect.
