News
September 1, 2026
A common scenario in Property transactions is the following:
A Purchaser signs an Offer to Purchase (“OTP”) subject to a suspensive condition that the Purchaser obtains mortgage finance within 30 days of acceptance. The agreement then provides for a further 14-day extension. The Purchaser has diligently applied for finance, but on the last day of the extension the Bank is still requesting additional information and final approval has not yet been granted.
Can the parties simply sign an addendum giving the Purchaser more time?
The short answer is yes – but timing is critical.
A suspensive condition suspends the operation of the contractual obligations until the stipulated event occurs. If the condition is not fulfilled within the period prescribed by the agreement, the agreement may lapse by operation of law. South African courts have repeatedly emphasised that the time period stipulated for fulfilment of a suspensive condition must be taken seriously.
The important distinction: before or after expiry
If the Purchaser is still within the contractual period – including any automatic extension provided for in the OTP – the parties can generally agree in writing to extend the period for fulfilment of the suspensive condition.
The safest approach is to sign the addendum before the existing deadline expires, expressly recording that the period for fulfilment of the bond condition is extended to a new specified date and that all other terms remain unchanged.
The Supreme Court of Appeal has confirmed that an extension agreed before expiry of the relevant period can be valid. In Codevilla v Kennedy-Smith NO, the parties entered into an addendum extending the bond-approval deadline before the original deadline expired.
But what if the 14 days have already expired?
This is where the danger lies.
Once the suspensive condition has failed and the agreement has consequently lapsed, the parties cannot simply sign an addendum saying that the deadline is extended. The Supreme Court of Appeal has made it clear that an agreement which has already lapsed cannot simply be “revived” by a later addendum purporting to extend the expired suspensive condition.
The parties may potentially enter into a new agreement, but that is legally different from merely extending an existing suspensive condition.
What about the Purchaser who has acted diligently?
The fact that the Purchaser has submitted the application timeously, supplied all requested documentation and is genuinely waiting for the Bank does not, by itself, mean that the suspensive condition has been fulfilled.
The wording of the OTP is crucial.
If the condition requires actual written approval of a mortgage bond, an application that is still being processed is generally not the same as fulfilment of the condition. Similarly, an approval in principle will only constitute fulfilment if the wording of the particular OTP provides for that.
And what happens to the guarantees?
This is another area where the conveyancer should be careful.
A guarantee deadline normally flows from the provisions of the OTP and is often calculated from the fulfilment of the suspensive condition. If the parties validly extend the period for bond approval before the condition expires, the addendum should expressly deal with the guarantee date as well.
For example:
“The period for fulfilment of the suspensive condition is hereby extended to [date]. The period for delivery of the guarantees shall accordingly be extended to [date], notwithstanding anything to the contrary contained in the Agreement.”
Do not simply assume that extending the bond-approval date automatically extends the guarantee deadline. The addendum should say so expressly.
The practical lesson
When a Purchaser is approaching the end of the bond-approval period and the Bank is still processing the application, do not wait until the deadline has passed.
The parties should sign a properly drafted addendum before expiry, clearly extending the suspensive condition and, where applicable, the guarantee-delivery period.
In Property transactions, one day can make the difference between extending a valid contract and attempting to revive one that has already lapsed.
The exact position will always depend on the wording of the particular Offer to Purchase and any existing extension provisions.
