A pactum de non petendo in anticipando is a contractual principle in terms of which parties conclude an agreement or undertaking not to institute an action against each other.
In 2006
Carol instituted action against Capitec, claiming that Capitec's prevention of the sale of the shares by Coral led to them having a financial loss of R 1,225 billion.
Capitec asserted that the legal action should be withdrawn because Carol had agreed in a consent agreement not to institute legal proceedings against Capitec.
In interpreting the clauses of a contract, the court has utilised an objective process of attributing meaning to the words used in the document. In addition, the Court considered the context of the document as a whole, having regard to the apparent purpose of the words.
Taking into consideration the above-mentioned contractual interpretation framework the Court found that Carol clearly breached the contractual undertaking not to sue. A pactum is an agreement like any other and gives rise to rights and correlative duties.
In deciding whether the clause was against public policy or not the court made reference to the case of Beadica 231 CC and others v Trustees for the time being of the
It is clear that agreements to 'not litigate' are not necessarily unreasonable, subject to the aforementioned framework of consideration and alignment with public policy. The position correlates with the contractual freedom provide by the law of contract in
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Mr
Units
Centurion
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