In the Supreme Court of Appeal in the matter of AFFIRMATIVE PORTFOLIOS CC v TRANSNET LTD t/a METRORAIL 2009 (1) SA 196 (SCA) the Court determined that:

• The appellant was precluded from relying on an alleged oral agreement by virtue of the parol evidence or integration rule. The oral agreement for which it contended would have been entered into before the signing of the written agreement and also contained terms which were at variance therewith. It was well established that where the parties decided to embody their final agreement in written form, the execution of the document deprived all previous statements of their legal effect.
• Not all oral or collateral agreements were necessarily deprived of legal effect. The parol evidence rule applied only where the written agreement was intended to be the exclusive memorial of the agreement between the parties.
• The appellant was therefore bound by the terms of the written agreement and that the written agreement contained a non-variation clause which entrenched the pricing provisions against oral variation.

Our JBCC Agreements, MBSA Agreements and the GCC 2015 all contain non-variation clauses and by default, our JBCC Agreements and MBSA Agreements will contain a clause along the lines of “an oral instruction shall have no force or effect” and “an oral instruction may not be relied upon for any purpose“.

GCC 2015, on the other hand, do provide for oral instructions but places the onus on the Contractor to contend such instruction to be a variation order, failing which the Contractor forfeits its right to payment.

In this modern day and age we have basically no excuse not to reduce instructions and agreements to writing, save for plain ignorance, poor administration skills or not having access to a email account. The last reason is the exception and the first two reasons require education and self management.

Believe it (or not), I still find so many times when considering cases as an Adjudicator or Arbitrator that people still proceed in good faith and act upon verbal instructions. Trust the process, trust the contract and trust the mechanisms provided in the contract. The flipside is always – when it comes to money and liability, memory becomes selective and the contract becomes persuasive. Once it comes to a dispute, the Adjudicator, Arbitrator or the Judge can only apply the contract, and the intentions of people have little relevance.

Tip: In the event that you are required to sign a non-standard contract (opposed to a standard contract like the JBCC, MBSA, GCC, FIDIC or NEC contract), please make sure that you have a non-variation clause in it.