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[2012] ZAGPJHC 249
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Sandown Travel (Pty) Ltd v Cricket South Africa (42317/2011) [2012] ZAGPJHC 249; 2013 (2) SA 502 (GSJ) (7 December 2012)
REPORTABLE
SOUTH
GAUTENG HIGH COURT
JOHANNESBURG
CASE NO
42317/2011
DATE:07/12/2012
In the matter between
SANDOWN TRAVEL (PTY)
LTD
….................................................
PLAINTIFF
versus
CRICKET SOUTH
AFRICA
................................................................
DEFENDANT
J U D G M E N T
Summary
Agreement repudiated by one party which allows innocent party to
elect whether to keep the contract alive or to cancel it. Principle
that innocent party who elects to keep the agreement alive when
anticipatory breach occurs, may elect to rather cancel the agreement
when the time for performance arrives, has become part of our law. In
addition, the party keeping the contract alive may claim
damages as
surrogate for performance from the guilty party. No tender to perform
its part of the agreement by the innocent party
necessary when the
repudiating party clearly indicates that it will not be bound by the
agreement.
WEPENER J:
[1] The plaintiff, a travel
agency, seeks damages from the defendant in the sum of R1,64 million
pursuant to, what it alleges to
be, a repudiation by the defendant of
an agreement between the parties and which repudiation the plaintiff
accepted.
The Agreement
[2] During 2009 the plaintiff and the defendant entered into a
written agreement in terms whereof the plaintiff was to render
services (referred to as travel services) to the defendant (the
client) for a fee of R97 000.00 plus VAT per month. The relevant
provisions of the agreement for purposes of the plaintiff’s
claim against the defendant are contained in clause 2 thereof
and
read as follows:
‘
2. Period
2.1 The Agreement will commence on the Effective
Date.
2.2 The Agreement will endure for a period of 2
years.
2.3 The Travel
Agent or the Client shall provide written notice of intention to
terminate at least 6 months before the end of the
contract date. In
the event of such notice not being forthcoming at least 6 months
before the end of the contract date then the
contract will
automatically renew for another year, on the same terms and
conditions, subject to the same 6 months’ notice
process
applying to the new period.
’
[3] It is common cause that the effective date was 1 October 2009.
The Pleadings
[4] In it’s particulars of claim, after setting out the terms
of the written agreement between the parties, the plaintiff
avers:
‘
5. The
plaintiff complied fully with its obligations under the agreement.
6. On 31 March 2011 and as no written notice of
intention to terminate the agreement had been given by either party,
the agreement
was renewed for another year from 1 October 2011 to 1
October 2012 (“the new period”), on the same terms and
conditions,
subject to the 6 months notice process applying to the
new period.
7. On 6 April
2011 the defendant purported to give the plaintiff notice of
termination of the agreement effective on 30 September
2011.
8. The plaintiff disputed that this notice of
termination was timeously given and on 23 September 2011 the parties
attempted to
mediate the dispute as provided for by the agreement but
no settlement could be reached within a period of fourteen days, or
at
all.
9. Neither party referred the dispute to a referee.
10. On or about 30 September 2011, the defendant
ceased using the services of the plaintiff and ceased making an
office available
for the plaintiff’s consultants.
11. The
aforegoing conduct on the part of the defendant amounted to a
repudiation of the agreement, which repudiation the plaintiff
accepted on 10 October 2011. A copy of the acceptance of the
repudiation is annexed hereto marked “POC2”.
’
[5] The conclusion, that the defendant repudiated the agreement, may
therefore be based either on the allegations contained in
paragraph
10 of the particulars of claim only i.e. the conduct of the defendant
by refusing to utilise the services of the plaintiff
or on all the
averments contained in paras 7 to 10, which include the notice of
termination that was given on 6 April 2011. In
the letter POC2, it is
stated that the failure to utilise the services of the plaintiff from
1 October 2011, together with the
notice of termination of 6 April
2011, constitutes a repudiation of the agreement and I am of the view
that the allegation of a
repudiation, relies on all of the conduct
referred to.
[6] The only defences upon which the defendant relied at the trial
are those set out in para 7.3 of its plea. That para reads as
follows:
‘
7.3 Alternatively,
and in any event Defendant avers that the Plaintiff was not entitled
to cancel the Agreement by virtue of the
Plaintiff having previously
and during April 2011 elected to enforce compliance of their
Agreement, “POC1” and not
to cancel the Agreement.
Alternatively it made such election on 30 June 2011 following a
repudiation of the agreement by the defendant
on 25 June 2011.
’
The plea contained in the last sentence of the paragraph was added at
the outset of the trial by way of an amendment.
[7] All other issues raised on the pleadings were abandoned at the
commencement of the trial and in so far as there were allegations
that the plaintiff failed to perform its mandate or a denial of a
repudiation (and all other issues which were contained in various
letters), the defendant disavowed any reliance thereon.
[8] The parties agreed that, in the event of the plaintiff succeeding
in its claim, the damages suffered by it amount to the sum
of R1,64
million.
The Evidence
[9] Two witnesses testified on behalf of the plaintiff and the
defendant led no evidence. The evidence established, and it was
common cause between the parties, that the defendant failed to give
timeous notice to terminate the agreement as required by clause
2
thereof and that it was consequently automatically renewed for a
period of another year, such renewal period being from 1 October
2011
to 30 September 2012.
[10] However, shortly after the
automatic renewal date and on 6 April 2011, the defendant wrote to
the plaintiff that it wished
to terminate the agreement after the
effluxtion of the initial period of 2 years, the latter which would
be the 30
th
of September 2011.
[11] On 11 April 2011 the plaintiff responded as follows:
‘
We
are saddened by the decision taken by CSA to terminate the agreement
with Sandown Travel. Sandown Travel believe that since we
have
started there have been no incidents that have been reported to us
that would have led CSA to take this decision.
Whilst Cricket South Africa (CSA) does have the right
to terminate the contract, notice of termination has to be given
timeously.
I refer you to clause 2.2 of our agreement which sets
out the procedure. A copy of the clause is attached.
Our contract is
for a period of 2 years commencing on 1 October 2009 and ending on 30
September 2011. Cricket South Africa were
obliged in terms of clause
2.2 to give us written notice of intention to terminate the contract,
AT LEAST 6 months prior to the
30
th
September 2011. In other words notice to terminate was required to be
given on or before 30 March 2011.
The clause goes on to state that if this notice was
not given at least 6 months before the end of the contract date, then
the contract
will automatically renew for another year.
As your notice to
terminate the contract was not given on or before 30 March 2011
(effectively the last day of the minimum 6 month
notice period) our
contract was automatically renewed for a further year and will now
terminate on 30 September 2012. The delivery
of your notice on 7
April is therefore of no effect.
’
[12] The next relevant document emanated from the defendant on 25
June 2011. It reads:
‘
We
refer to the above and specifically to our email dated the 07
th
of April 2011.
We wish to
confirm that such an email was an official notification that our
contract with yourselves shall not extend beyond the
30
th
of September 2011.
In view thereof,
we wish to advise that there shall be no business from Cricket South
Africa to yourselves from the 01
st
of October 2011
.’
[13] On 30 June 2011 the plaintiff responded (through its attorneys)
that:
‘
Cricket SA’s purported cancellation
dated 7 April 2011 is accordingly of no force and effect.
It is accordingly common cause that the contract was
automatically renewed by virtue of clause 2.2. of the agreement and
our client
will therefore not recognise any attempts by Cricket SA to
resile from the agreement prior to 30 September 2012.’
[14] The plaintiff, as it was obliged to do, continued to render
travel services to the defendant up to and including the end of
September 2011 when the defendant refused to allow it to continue to
do so.
[15] Further correspondence shows that the plaintiff remained
steadfast in its attitude that the agreement was to endure for a
period of another year whilst the defendants resolve to bring the
agreement to an end as at the end of September 2011 by virtue
of the
letter of cancellation of 6 April 2011, remained unchanged.
[16] Because of these two opposite positions, Mr Newall, on behalf of
the plaintiff, insisted that plaintiff’s Mr Ciochetti
should
meet the managing director of the defendant in accordance with the
provisions of clause 11 of the agreement which obliges
the parties to
meet and attempt to settle any dispute between them. The meeting
occurred shortly before the end of September 2011
and the defendant’s
managing director, Mr Majola, remained resolute that the agreement
was at an end as at the end of September
2011.
Repudiation of the Agreement
[17] During argument, the defendant’s counsel accepted that its
letter of 6 April 2011 constituted a repudiation of the agreement.
I
have mentioned that it is alleged, in the alternative, that the
repudiation occurred on 25 June 2011 when the defendant (again)
stated that the agreement would not continue beyond 30 September
2011. The letter of 25 June 2011, however, only re-iterated the
stance adopted by the defendant in its letter of 6 April 2011. In my
view, the letter of 25 June 2011 did accordingly not constitute
a new
and independent attempt to terminate the agreement. (The parties’
referred to the first letter of termination either
as having been
written on 6 or 7 April 2011 but nothing turns on this and I refer to
it as the letter of 6 April 2011, being the
date appearing thereon).
[18] As from 6 April 2011 and repeatedly and consistently thereafter,
the defendant deliberately and unequivocally stated that
from October
2011 it intended to no longer be bound by the terms of the agreement.
[19] This conduct amounts to a repudiation or anticipatory breach of
the agreement on the part of the defendant.
‘
[16] Where
one party to a contract, without lawful grounds, indicates to the
other party in words or by conduct a deliberate and
unequivocal
intention no longer to be bound by the contract, he is said to
''repudiate'' the contract. . . . Where that happens,
the other party
to the contract may elect to accept the repudiation and rescind the
contract. If he does so, the contract comes
to an end upon
communication of his acceptance of repudiation and rescission to the
party who has repudiated . . .' (per Corbett
JA in Nash v Golden
Dumps (Pty) Ltd1985 (3) SA 1 (A) at 22D – F.’
See
Datacolor
International (Pty) Ltd v Intamarket (Pty) Ltd
[2000] ZASCA 82
;
2001 (2) SA 284
(SCA) at para 16.
[20] Whether the conduct of the
party constitutes a repudiation is determined objectively in order to
decide whether it indeed amounts
to a repudiation. See
Erasmus
v Pienaar
1984 (4) SA
9
(T) at 20C-H where it was said:
‘
Die
toets is 'n objektiewe een. Nienaber Anticipatory Repudiation in
English and South African Law of Contract, A Comparative Study
('n
ongepubliseerde proefskrif, Desember 1961) konstateer op 267 die
volgende:
"... it would seem as if the test applied in
South Africa in order to determine whether certain conduct
constitutes a repudiation,
is the same as that applied in England,
viz culpable conduct of such a nature as to lead a reasonable person
to believe that an
actual breach would be committed."
Die geleerde skrywer op 249 stel dit op 'n basis
analoog aan estoppel:
"Although the repudiator did not in fact
repudiate the contract he did so conduct himself as to lead a
reasonable person,
namely, in the position of the promisee, to
conclude that he was going to commit an actual breach."
In Karswell v Collard [ 1893e 20 ER (HL) 47 is die
toets deur Lord HERSCHELL gestel as:
"What effect the conduct... would be
reasonably calculated to have upon a reasonable person."
Dit wil voorkom of hierdie benadering ook deur ons
Appèlhof onderskryf word. In Ponisammy and Another v
Versailles Estates
(Pty) Ltd1973 (1) SA 372 (A) op 387B is onder
andere die volgende stelling van DEVLIN R in Universal Cargo Carriers
Corporation
v Citati [
1957] 2 QB 401
op 436 met instemming
aangehaal:
"The test of whether an intention is
sufficiently evinced by conduct is whether the party renunciating has
acted in such a
way as to lead a reasonable person to the conclusion
that he does not intend to fulfil his part of the contract."
Sien ook Van
Rooyen v Minister van Openbare Werke en Gemeenskapsbou1978 (2) SA 835
(A) te 845 - 846B en Tuckers Land and Development
Corporation (Pty)
Ltd v Hovis1980 (1) SA 645 (A) te 653E waar hierdie toets weer eens
bevestig is.
’
[21] In
Datacolor
at para 16 it was said:
‘
At the
same time this Court has repeatedly stated that the test for
repudiation is not subjective but objective (Ponisammy and Another
v
Versailles Estates (Pty) Ltd1973 (1) SA 372 (A) at 387A - C; Stewart
Wrightson (Pty) Ltd v Thorpe (supra at 953E - H); Van Rooyen
v
Minister van Openbare Werke en Gemeenskapsbou (supra at 845A - 846G);
Tuckers Land and Development Corporation (Pty) Ltd v Hovis
(supra at
653B - G); OK Bazaars (1929) Ltd v Grosvenor Buildings (Pty) Ltd and
Another1993 (3) SA 471 (A) at 480I - 481H; Highveld
7 Properties
(Pty) Ltd and Others v Bailes1999 (4) SA 1307 (SCA) at 1315F - G,
1318A - E, 1318H - J). Thus it has recently been
said in Metalmil
(Pty) Ltd v AECI Explosives and Chemicals Ltd1994 (3) SA 673 (A) at
684I - 685B:
“
It is
probably correct to say that respondent was bona fide in its
interpretation of the agreement and that subjectively it intended
to
be bound by the agreement and not to repudiate it. This fact does
not, however, preclude the conclusion that its conduct constituted
repudiation in law. Respondent was not manifesting any intention to
conduct its relations with appellant and to discharge its duties
to
appellant in accordance with what it was obliged to do on an
objective interpretation of the agreement. In effect, it was
insisting
on a different contract, however bona fide it might have
been in its belief that it was not.”
Conceivably it
could therefore happen that one party, in truth intending to
repudiate (as he later confesses), expressed himself
so
inconclusively that he is afterwards held not to have done so;
conversely, that his conduct may justify the inference that he
did
not propose to perform even though he can afterwards demonstrate his
good faith and his best intentions at the time. The emphasis
is not
on the repudiating party's state of mind, on what he subjectively
intended, but on what someone in the position of the innocent
party
would think he intended to do; repudiation is accordingly not a
matter of intention, it is a matter of perception. The perception
is
that of a reasonable person placed in the position of the aggrieved
party. The test is whether such a notional reasonable person
would
conclude that proper performance (in accordance with a true
interpretation of the agreement) will not be forthcoming. The
inferred intention accordingly serves as the criterion for
determining the nature of the threatened actual breach.’
[22] The plaintiff itself viewed
the conduct of the defendant as a ‘
purported
cancellation’
,
which conduct, objectively considered amounts to a repudiation of the
agreement by the defendant.
[23] The final letter of significance that was written on behalf of
the plaintiff by its attorney on 10 October 2011 reads:
‘
We have
been advised that you no longer utilise our client’s services
in terms of the Travel Management Agreement, but instead
now utilise
the services of Rennies Travel.
The above,
together with your termination letter, constitutes a repudiation of
the Travel Management Agreement which repudiation
our client
accepts.
’
I deal with the acceptance below. The defendant, in terms of this
letter, regarded the letter of 6 April 2011 to form part of its
repudiation of the agreement.
[24] Objectively, the defendant repudiated the agreement on 6 April
2011.
The Election
[25] Subsequent to the repudiation of the agreement on 6 April 2011
the plaintiff elected to keep the defendant to the terms of
the
agreement. It said so in all the correspondence. The plaintiff,
however, decided to change this stance on, or shortly before,
10
October 2011, after the meeting between Mr Ciochetti and Mr Majola
had taken place. It was then that its attorney wrote the
letter
referred to above in which it accepted the defendant’s
repudiation of the agreement.
[26] It is this acceptance which resulted in the institution of the
present action against the defendant. The plaintiff’s
cause of
action is founded upon the repudiation of the defendant, the
plaintiff’s acceptance thereof and its consequent claim
for
damages flowing therefrom.
[27] Counsel for the defendant,
argued that the plaintiff may not ‘
approbate
and reprobate’
,
it may not keep the contract in
esse
and then have a change of heart and cancel it. Once the plaintiff
elected to keep the contract alive after the repudiation thereof
by
the defendant, the plaintiff was bound by its election and limited to
enforce remedies against the defendant based on the election.
The
defendant was consequently, so it was submitted, precluded from
claiming damages based on cancellation, as it doing.
[28] The conduct of the plaintiff
evinces a clear intention to keep the contract alive. All the
correspondence show that it elected
to treat the defendant’s
repudiation as incompetent and of no force and effect. It said in a
letter dated 30 June 2011 that
it ‘
will
not … recognise any attempts by Cricket SA to resile from the
agreement prior to 30 September 2012’
.
[29] The plaintiff’s election, taken from 6 April 2011 up to
shortly before 10 October 2011, was one that affirmed the
implementation
of the agreement. The letter of 10 October 2011, which
purported to cancel the agreement, must be seen against this
background.
[30] The legal position regarding
the remedies available for an innocent party in circumstances where
the other commits an anticipatory
breach or repudiation of an
agreement has been set out in a number of decided cases. He or she
must elect either to treat the contract
as binding or terminate it.
Once an election has been made, however, that person is bound by that
election. He or she is bound
to enforce the remedies available to him
or her pursuant to the election and he or she is not at liberty to
seek redress against
the defaulting party by way of remedies
inconsistent with the election.
Custom
Credit Corporation (Pty) Ltd v Shembe
1972 (3) SA 462
(AD) at 469H.
[31] The question of an election
occupied the attention of the Appellate Division twice in June 1912.
On 7 June 1912 the Appellate
Division heard
Hlatswayo
v Mare and Deas
1912
AD 242
, the bench comprising De Villiers CJ, Innes J, Solomon J, CG
Maasdorp JP and J De Villiers JP. Three judgments – all
agreeing
and allowing the appeal – were handed down. De
Villiers CJ (Innes J concurring) handed down a judgment. Solomon J
handed
down a judgment in which CG Maasdorp JP concurred. J de
Villiers JP handed down a separate judgment. At issue was a
procedural
election, namely whether a party was entitled to re-open
its case, having acquiesced (so the opposing party claimed) in a
provisional
judgment of a Magistrate. Having declined to decide
whether the conduct in question amounted to acquiescence under the
Roman-Dutch
doctrine of this name, or an election, or a waiver, De
Villiers JP held that the distinction did not matter. Dealing
generally
with such situations, the Judge President held as follows
at p259:
‘
At
bottom the doctrine is based upon the application of the principle
that no person can be allowed to take up two positions inconsistent
with one another, or as is commonly expressed to blow hot and cold,
to approbate and reprobate.
’
The language of ‘
approbate
and reprobate
’
is that of contract.
[32] On 19 June 1912, Innes J,
Solomon J and CG Maasdorp JP heard the matter of
Farmers’
Co-operative Society (REG) v Berry
1912 AD 343.
The case concerned the entitlement of an aggrieved
party to claim specific performance, and whether – if the
defaulting
party preferred to make payment rather than tender
performance – the aggrieved party was deprived of his election.
Innes
JA – who delivered the unanimous judgment – dealt
with the argument in the following way at p350:
‘
And there are many cases in which justice
between the parties can be fully and conveniently done by an award of
damages. But that
is a different thing from saying that a defendant
who has broken his undertaking has the option to purge his default by
the payment
of money. For in the words of Storey (Equity
Jurisprudence, Sec 717 (a) “it is against conscience that a
party should have
a right of election whether he would perform his
contract or only pay damages for the breach of it.” The
election is rather
with the injured party, subject to the discretion
of the Court.’
[33] The decision in
Segal
v Mazzur
1920 CPD 634
had already been handed down. The contract in question was for the
supply of milk. When the plaintiff did not receive payment
on time,
he cancelled the contract. One of the defences raised by the
defendant was that the plaintiff had continued to supply
milk after
not receiving timeous payment, and thereby electing to abide by the
contract. Watermeyer AJ dealt with the question
of election at page
644 – 645 :
‘
Now, when an event occurs which entitles one
party to a contract to refuse to carry out his part of the contract,
that party has
the choice of two courses. He can either elect to
take advantage of the event or he can elect not to do so. He is
entitled to
a reasonable time in which to make up his mind, but when
once he has made his election he is bound by that election and cannot
afterwards change his mind. … If, with knowledge of the
breach, he does an unequivocal act which necessarily implies that
he
has made his election one way, he will be held to have made his
election that way.’
[34] The Appellate Division again
considered the matter in
Bowditch
v Peel and Magill
1921
AD 561.
The matter concerned misrepresentations which allegedly
induced a contract. Innes CJ held as follows at p572:
‘
A
person who has been induced to contract by the material and
fraudulent misrepresentations of the other party may either stand
by
the contract or claim a rescission. (Voet, 4.3, secs. 3, 4, 7). It
follows that he must make his election between those two
inconsistent
remedies within a reasonable time after knowledge of the deception.
And the choice of one necessarily involves the
abandonment of the
other. He cannot both approbate and reprobate.’
[35] Following the earlier
decisions, there is a plethora of authority which supports the view
that an election, once made, is binding.
They include the following
decisions of the Appellate Division / Supreme Court of Appeal:
35.1
Chamber
of Mines of South Africa v National Union of Mineworkers and Another
1987 (1) SA 668
(A) where the following was said at 690 D-G regarding
an election generally:
‘
One or
other of two parties between whom some legal relationship subsists is
sometimes faced with two alternative and entirely inconsistent
courses of action or remedies. The principle that in this situation
the law will not allow that party to blow hot and cold is
a
fundamental one of general application. A useful illustration of the
principle is offered in the relationship between master
and servant
when there comes to the knowledge of the former some conduct on the
part of the latter justifying the servant’s
dismissal. The
position in which the master then finds himself is thus described by
Bristowe J in Angehrn and Piel v Federal Cold
Storage Co Ltd
1908 TS
761
at 786:
“
It seems to me that as soon as an act or group
of acts clearly justifying dismissal comes to the knowledge of the
employer it is
for him to elect whether he will determine the
contract or retain the servant … He must be allowed a
reasonable time within
which to make his election. Still, make it he
must, and having once made it he must abide by it. In this, as in
all cases of
election, he cannot first take one road and then turn
back and take another.”’
35.2 In
Administrator,
Orange Free State, and Another v Mokopanele and Another
[1990] ZASCA 69
;
1990 (3) SA 780
(A) at 787 G – H it was held that :
‘
The
legal doctrine here involved may perhaps best be described as that of
election. But in a situation such as this the exact nomenclature
is
less important than a recognition of the fundamental principle that a
contracting party who has once approbated cannot thereafter
reprobate.’
35.3 The identical principle was
restated in
Merry Hill
(Pty) Ltd v Engelbrecht
2008
(2) SA 544
(SCA) at 550 B – E (para [15]) which expressly
approved the following statement of the law by Friedman JP in
Bekazaku Properties
(Pty) Ltd v Pam Golding Properties (Pty) Ltd
1996 (2) SA 537
(C) at 542 E – F :
‘
When
one party to a contract commits a breach of a material term, the
other party is faced with an election. He may cancel the
contract or
he may insist upon due performance by the party in breach. The
remedies available to the innocent party are inconsistent.
The
choice of one necessarily excludes the other, or, as it is said, he
cannot both approbate and reprobate. Once he has elected
to pursue
one remedy, he is bound by his election and cannot resile from it
without the consent of the other party.
’
[36] The election to keep the
contract in
esse
was completed when the plaintiff informed the defendant of the choice
it had made.
Mutual
Life Insurance CO of New York v Ingly
1910 (TPD) 540 at p550.
[37] The plaintiff’s
response to the repudiation was clear. It elected to treat the
agreement as binding and not to cancel
the agreement. This much is
clear from the plaintiff’s communications to the defendant.
Also, in evidence Mr. Newall said
that as far as he was concerned it
was ‘
business as
usual
’ for the
plaintiff. He said during cross examination that throughout the
period April 2011 to shortly before 10 October 2011,
the plaintiff
sought to persuade the defendant to comply with the provisions of the
agreement. The letter of 10 October 2011 in
which the plaintiff
stated that it accepted the defendant’s repudiation and sought
to cancel the agreement, is in conflict
with its initial election.
[38] Applying the above principles, the plaintiff would ordinarily be
bound by its election to enforce the agreement and it could
therefore
not later cancel the agreement, unless there is another ground upon
the plaintiff can rely.
The repentance principle
[39] There are decided cases, which have held that, despite an
election to keep a contract alive, the innocent party may, in the
case of anticipatory breach, reconsider its position when the time
for performance arrives.
‘
The
principle is now well established that a refusal by one party to a
contract to perform it before the date of performance arrives
places
the other party in a position to elect whether to treat such conduct
as a breach of contract, or persist in the contract
and hold his
opponent to all its terms when the due date should arrive. If he
adopts the former course and accepts the renunciation,
the whole
contract is at an end, save for the purposes of an action for the
breach arising out of such renunciation. If however,
he refuses to
accept such renunciation, he keeps the contract alive, not only for
himself, but also for the other party thereto;
and he must in that
case perform all his duties and discharge all his obligations under
the contract, while he
enables the
other party to reconsider his position and even to perform the
contract at the due date, notwithstanding his previous
repudiation
;
and the contract so kept on foot is shorn of none of its terms or
conditions, so that the party who has attempted to put an end
to it
may take advantage of any subsequent circumstances which would have
justified him in refusing to complete the contract.
’(My
emphasis).
De Wet v Kuhn
1910 CPD 263
at 264
[40] During argument I raised the
decision of
Cohen v
Orlowski
1930 SWA 125
with counsel. In that case it was held at 133 as follows:
‘
In the
present case the plaintiff is not seeking to enforce a contract which
he had previously elected to treat at an end by reason
of the
defendant’s repudiation – he is now treating as at an end
an agreement repudiated by the defendant, but which
plaintiff had
previously elected to treat as standing. The correct view of the
matter, in my opinion, is that the plaintiff did
what he was entitled
to do, and that is that he refused to accept the repudiation of the
agreement by the defendant. He thereby
allowed the defendant to
repent of his repudiation and gave him an opportunity to carry out
his portion of the bargain, but when
the defendant nevertheless
persisted in his repudiation, the plaintiff was entitled to change
his mind and notify defendant that
he would no longer treat the
agreement as existing, but that he would now regard it as rescinded
and sue for damages.’
[41] Counsel for the plaintiff,
argued that the passage in
Cohen
should find application in this matter. If that is so, the plaintiff
was entitled to cancel the agreement on 10 October 2011 and
sue for
damages. It would then be entitled to its damages, as claimed herein.
[42] However, counsel for the
defendant argued that the passage in
Cohen
is an outlier in our jurisprudence and that it does not accord with
the established principles laid down in numerous decisions
of the
courts of South Africa, some of which have been referred to earlier
in this judgment. He further argued that the
Cohen
matter was incorrectly decided as it relied on
Kameel
Tin Company (Pty) Ltd v Brollomar Tin Exploration Co Ltd
1928 TPD 726
, which latter case, he argued, was wrongly decided by
Greenberg J. It has however, since the
Kameel
Tin
judgment, been
held in a number of decided cases that an innocent party may, when
the other contracting party commits an anticipatory
breach, elect to
ignore the breach and keep the contract alive in order to allow the
defaulting party to repent of his or her repudiation.
Nicholas AJA
said in a minority judgment in
Culverwell
and Another v Brown
1990 (1) SA 7
(A) at 17E-F:
‘
And where
the injured party refuses to accept the repudiation and thereby
allows the defaulting party to repent of his repudiation
and gives
him an opportunity to carry out his portion of the bargain, and the
defaulting party nevertheless persists in his repudiation,
the
injured party is entitled to change his mind and notify the other
party that he would no longer treat the agreement as existing,
but
that he would now regard it as rescinded and sue for damages. See
Cohen v Orlowski 1930 SWA 125 at 133.’
[43] The principle that the
innocent party may, when the defaulting party commits an anticipatory
breach, change his or her mind
if the defaulting party persists with
its repudiation when the date for performance arrives, has been
applied since 1910. In
Cohen
v Orlowski,
distinguishing the facts of the case from a single act of repudiation
which occurred in
Segal
v Mazzur
1920 CPD 634
,
Bok J said at 132:
‘
I do not see how that decision can be regarded
as authority for the proposition that the innocent party elects to
sue on the contract
repudiated by the guilty party, and the guilty
party persists in his repudiation, the innocent party cannot change
his mind and
sue for damages, treating the contract as cancelled’.
Similarly in
Kameel
Tin
Greenberg J said
at:
’
When the date has arrived and the party who is
obliged to perform refuses to perform, the innocent party may insist
on performance
of the contract, or he may sue for damages or he may
disregard the contract’
[44] The principle that an
innocent party can change his or her mind if the guilty party
persists in his or her or repudiation at
the time when performance in
terms of the contract arrives, according to both
Cohen
and
Kameel Tin
,
is limited to cases of anticipatory breach of an agreement, i.e. a
breach of the agreement before the date on which performance
is due.
[45] The principle has been
applied in a number of cases. Nicholas AJA referred to it with
approval in
Culverwell
without the majority judgment dissenting therefrom.
[46] Both the
Cohen
and the
Kameel Tin
matters were referred to in
Walker
v Minier et Cie
(Pty)
Ltd
1979 (2) SA 474
(W) but distinguished on the facts for the
reasons set out in that case at pages 480 and 481.
[47] The repentance principle was
also accepted,
inter
alia
, in
BBS
Empangeni CC (Formerly ZTC Cash Build CC) v Phoenix Industrial Park
(Pty) Ltd and Another
(8945/2006) [2011] ZAKZDHA 1 (6 January 2011) at para 6 and in
Dongwe
NO v Kinghorn NO and Another
(16773/08) [2009] ZAKZPHC 71 (3 December 2009).
[48] The principle or doctrine operates one way only i.e. when there
is an anticipatory breach of an agreement, the innocent party
who
initially demanded performance, may, at the time of performance,
elect to cancel the agreement.
[49] Brand JA, without deciding
the issue finally, referred to the application of the principle as
discussed in
Walker
,
and said in
Merry Hill
at 550F – I:
‘
It is true
that it was also held in Walker (at 480D - H), obiter, as it were,
that a seller who has indicated an intention to claim
performance of
the contract can still claim cancellation at a later stage, if the
purchaser persists in his or her default during
the 30-days notice
period, provided that another 30-day notice is given in which
cancellation is signified. Whether this is so
is, in my view, not
necessary to decide. I say this for two reasons. First, as I
understand the position regarding election, the
suggested solution
will operate one way only, ie where the seller threatens to demand
specific performance. If, by contrast, the
seller threatens to claim
cancellation he will be finally bound by that choice. He will not be
able to change his mind if the purchaser
persists in default,
whatever the position may be where he threatened to claim specific
performance instead (see for example Consol
Ltd t/a Consol Glass v
Twee Jonge Gezellen (Pty) Ltd and Another (2)
2005 (6) SA 23
(C)
([2004]
1 All SA 1)
paras 35 - 36; Christie The Law of Contract in
South Africa 5 ed at 541).’
[50] The principle that a guilty
party be afforded the opportunity to reconsider his or her position
has been, as accepted by Hopley
J in 1910 in
De
Wet v Kuhn
‘
well
established
’ and
has been applied for more that one hundred years.
[51] I am of the view that the repentance principle has become part
our law.
‘
Die
oorweging dat persone regte kon verkry en verpligtinge aangegaan het
in vertroue op die finaliteit van 'n vorige beslissing,
is ook genoem
in John Bell and Co Ltd v Esselen1954 (1) SA 147 (A) op 154, en het
toepassing gevind in Cullinan v Noordkaaplandse
Aartappelkernmoerkwekers Koöperasie Bpk1972 (1) SA 761 (A). In
laasgenoemde saak is daarop gewys dat hoewel die leerstuk van
die
"undisclosed principal" in stryd is met die grondbeginsels
van die Romeins-Hollandse reg, oor 'n lang tydperk aanvaar
is - ook
in twee beslissings van hierdie Hof - dat die leerstuk deel van ons
reg is. POTGIETER AR het daarna die volgende gesê(op
767 - 8):
"Die aantal
gewysdes waarin die beginsel erken is en wat loop oor 'n lang
periode, is 'n aanduiding dat die beginsel al vir
byna honderd jaar
in die handelsverkeer toegepas is. Ek reken ook dat hierdie Hof
kennis daarvan kan neem dat in die praktyk dit
al vir byna honderd
jaar toegepas is op die gebiede van agentskap en koop en verkoop, wat
'n aansienlike deel uitmaak van die alledaagse
handelsverkeer.
Ongetwyfeld is daar in die resente verlede talle transaksies
aangegaan waar partye tot sodanige transaksies regte
verkry het en
verpligtinge aangegaan het as gevolg van die toepassing van dié
leerstuk. Indien hierdie Hof derhalwe nou
sou beslis dat dit nie
geldende reg is nie, sou sodanige partye tot sulke transaksies
skielik voor die feit te staan kom dat vermeende
regte en
verpligtinge nie meer bestaan nie. So 'n beslissing deur hierdie Hof
sou retrospektiewe uitwerking hê en, anders
as by 'n
wetvoorskrif, kan bestaande regte en verpligtinge nie bewaar word
nie. (Vgl The Mine Workers' Union v Prinsloo1948 (3)
SA 831 (A) op
852)”
Om die redes
hierbo genoem is ek van oordeel dat die betrokke leerstuk so
ingeburger is dat hierdie Hof verplig is om dit as geldende
reg te
beskou.’
Tuckers Land and Development
Corporation v Strydom
1984 (1) SA 1
(A) at 16H - 17D.
[52] The plaintiff relied on the doctrine of repentance in order to
exercise its rights and on the basis of this principle, the
plaintiff
is entitled to succeed with its claim against the defendant, based on
the acceptance of the repudiation at the time when
performance was
due by the defendant.
Defendant’s liability for damages.
[53] However, on the assumption that the plaintiff was bound by its
election to keep the contract alive and that it could not change
its
mind, the later acceptance of the repudiation would be legally
ineffective and the plaintiff would be bound to its election
to keep
the contract alive.
[54] A repudiation of an
agreement is, of course, nothing other than a breach of an agreement,
(see Kerr
supra
at 596) and where a breach of the agreement occurs, a party is
entitled to claim damages.
‘
Soos
ons reeds by die bespreking van die verskillende vorms van
kontrakbreuk gesien het, kan die onskuldige party slegs onder sekere
omstandighede uit die ooreenkomos terugtree, en, soos ons later sal
sien, hoef hy, selfs waar hy ‘n terugtredingsreg het,
nie
daarvan gebruik te maak nie. ‘n Eis om vervulling sal die
onskuldige dus altyd hê, en waar hy nie mag terugtree
nie, sal
dit sy enigste middel wees. Die eis om vervulling kan egter twee
vorms aanneem, nl. ‘n eis om vervulling in forma
specifica of
‘n eis om
skadevergoeding as
surrogaat van die prestasie
of ter aanvulling van gebrekkige prestasie. Die vraag is nou of die
onskuldige wat vervulling eis ‘n keuse het tussen vervulling
in
forma specifica en skadevergoeding as surrogaat van die
prestasie.
’(My
emphasis)
De Wet en Van Wyk:
Kontraktereg
& Handelsreg
Vol 1
p209. In footnote 55 the learned authors explain the two forms of
specific performance as follows:
‘
Skadevergoeding
ter aanvulling van gebrekkige prestasie is maar net ‘n
verskyningsvorm van skadevergoeding as surrogaat van
die prestasie;
die vergoeding dien as surrogaat van die ontbrekende deel van die
prestasie.
’
See also
Unibank
Savings and Loans (formerly Community Bank) v Absa Bank
2000
(4) SA 191
W at 205A.
[55] Christie:
The
Law of Contract in South Africa
6
th
Ed at p 545 states:
‘
Our
law is clear that a plaintiff is always entitled to claim specific
performance and, assuming he makes out a case, his claim
will be
granted, subject only to the court’s discretion. The locus
classicus is the judgment of Innes J in Farmers’
Co-op Society
(Reg) v Berry
1912 AD 343
at 350:
Prima facie every
party to a binding agreement who is ready to carry out his own
obligation under it has a right to demand from
the other party, so
far as it is possible, a performance of his undertaking in terms of
the contract. As remarked by KOTZE, C.J.,
in Thompson v Pullinger (1
O. R., at p. 301), "the right of a plaintiff to the specific
performance of a contract where the
defendant is in a position to do
so is beyond all doubt." It is true that Courts will exercise a
discretion in determining
whether or not decrees of specific
performance should be made. They will not of course, be issued where
it is impossible for the
defendant to comply with them. And there are
many cases in which justice between the parties can be fully and
conveniently done
by an award of damages. But that is a different
thing from saying that a defendant who has broken his undertaking has
the option
to purge his default by the payment of money. For in the
words of Storey (Equity Jurisprudence, Sec. 717 (a) ), "it is
against
conscience that a party should have a right of election
whether he would perform his contract or only pay damages for the
breach
of it." The election is rather with the injured party,
subject to the discretion of the Court.’
Innes J’s reference to justice being done by an
award of damages is not as clear as it might have been, and sometimes
gives
rise to the argument that, on the facts of a particular case,
specific performance should not be granted because damages would be
an adequate rememedy.’
[56] The view that the innocent
party is entitled to recover damages upon the occurrence of the
breach of a contract is also held
by the learned authors in Wille’s:
Principles of South
African Law
9
th
Ed at p868 where it is said:
‘
In
appropriate cases the innocent party is entitled to recover damages
for the breach, which are assessed in relation to the date
of
performance rather than the date of repudiation, but subject to the
normal rule requiring him to mitigate his loss.
’
[57] Courts have the discretion
to award damages instead of ordering specific performance. See
Farmers’
Co-operative Society,
at
p350. The circumstances upon which a court would award such damages
vary but, in my view, would include a case such as the present
where
the defendant engaged a new service provider at the end of September
2011 to render travel services to it, making an offer
by the
plaintiff to render such services academic.
[58] ‘
The
innocent party in the case of a repudiation is not compelled to
rescind the contract. He or she is at liberty to ignore or reject
the
repudiation, await the time when performance is due and then claim
specific performance (
or damages
)
from the repudiator
’.
See LAWSA Vol. 5 part 1 para 486. Also see
Gilchrist
and Co v Stone
(1889)
5 HCG 353 at 358
;
Delany v Medefindt
1908 EDC 200
at 205;
Machanick
V Bernstein
1920 CPD
380
at 381-382;
De Wet
v Kuhn
1910 CPD 263
at
267.
[59] Although the plaintiff did
not seek specific performance in this matter, it sought the damages
which it had suffered. These
damages are the damages in lieu of
specific performance which a court may grant. The damages are awarded
as surrogate of performace
(See Visser and Potgieter:
Law
of Damages
3
rd
Ed at p362). It is a competent claim even if its belated cancellation
is ineffective.
[60] The plaintiff’s position is then that it kept the contract
alive but that the defendant, however, refused to deal with
it after
30 September 2011 although it was obliged to do so for another year
until 30 September 2012. The defendant having employed
a different
travel agency at that time, a court, in my view, would have exercised
its discretion by not granting the plaintiff
specific performance had
it claimed it, but rather would have awarded damages as surrogate of
specific performance.
[61] Indeed, in
Myers
v Abramson
1952 (3) SA
121
(C) Van Winsen J held that where parties are in an employer –
employee relationship where personal services are being rendered
to
one party, the only remedy for a plaintiff when the unjustified
repudiation occurs would be to sue for damages. Van Winsen J
said at
127:
‘
In
my view this is not a case where the Court can grant specific
performance. The contract was essentially one for the rendering
by
plaintiff of personal service. The fact that it also included certain
obligations on both parties relative to the payment of
travelling
expenses and the payment of expenses of board and lodging does not
alter the essential nature of the contract to which
these latter
obligations were merely accessory. Nor does the fact that plaintiff
was to enjoy the additional benefit of doing post-graduate
work
affect the position. This right was at all times subservient to the
main purpose of the contract, viz. the rendering by plaintiff
to
defendant and his wife of certain personal services.
In my view the
only remedy open to plaintiff in this case is the remedy of damages.
’
Tender to perform
[62] The plaintiff’s
pleadings cover a claim for damages pursuant to the defendant’s
repudiation. However, a claim for
damages based on keeping the
contract in
esse
must be coupled with the plaintiff’s own tender to perform its
obligations, which allegation is absent from the particulars
of claim
see
R M Van de Ghinste
and Co (Pty) Ltd v Van de Ghintse
1980 (1) SA 250
(C) at 253E-H and De Wet and Van Wyk
supra
,
at p196.
[63] The tender to perform is absent from the particulars of claim,
obviously, as a result of the fact that the plaintiff eventually
sought damages based on the ineffective cancellation of the
agreement, the latter which is incompatible with a tender to perform.
[64] Only if it can be said that the plaintiff is excused from
tendering performance would it, in my view, have pleaded a sufficient
case to be entitled to succeed to obtain damages in this matter.
[65] In
NKP
Kunsmisverspreiders (EDMS) Bpk v Sentrale Kunsmis Korporasie (EDMS)
Bpk en ‘n Ander
1973 (2) SA 680
(T) at p685, Nicholas J said:
‘
The
purpose of a tender of performance is to enable the other party to
take the necessary steps to perform his part of the contract.
But if
the latter expressly declares that he is under no circumstances
prepared to perform, the whole purpose of a tender falls
away. In my
view, the first defendant by its continuing repudiation of the
contract waived its right to a tender of performance
by the plaintiff
(cf. Van Zijl Steyn,
Mora
Debitoris volgens die Hedendaagse Romeins-Hollandse Reg
.
pp. 80 - 82).
’
[66] This dictum was followed by
Ackerman J in
Erasmus v
Pienaar
, at pp24-26
where it was said:
‘
Hierdie
argument is deur Regter NICHOLAS verwerp en op 685A - D sê die
geleerde Regter die volgende:
"Before the
plaintiff could be in a position where it was in a position to obtain
orders for fertiliser, it was necessary for
the plaintiff to have set
up presumably at appreciable cost, a selling organisation staffed by
sufficient trained sales personnel
- an organisation which, in terms
of the contract, would have been restricted to the marketing of the
first defendant's products.
If the allegations in para 5 (ii) of the
plaintiff's further particulars be accepted as true (as they must be
for the purpose of
the present exception proceedings), the setting up
of such an organisation would have been an exercise in futility,
since the first
defendant's attitude was that it was not bound by,
and would not perform the contract. It would be surprising if the law
were to
be so much out of tune with common sense as to require of the
plaintiff as a prerequisite to its cause of action against the first
defendant that, notwithstanding its futility, it should perform the
exercise.
The purpose of a
tender of performance is to enable the other party to take the
necessary steps to perform his part of the contract.
But if the
latter expressly declares that he is under no circumstances prepared
to perform, the whole purpose of a tender falls
away. In my view, the
first defendant by its continuing repudiation of the contract waived
its right to a tender of performance
by the plaintiff (cf Van Zijl
Steyn Mora Debitoris Volgens die Hedendaagse Romeins-Hollandse Reg op
80 - 82)."
Mnr Goldstein het
gepoog om hierdie beslissing te onderskei op die basis dat eiser se
eis een was vir skadevergoeding. Ek stem nie
saam nie. Dit was wel 'n
eis om skadevergoeding, maar een ingestel na verwerping van eerste
verweerder se repudiëring van
die kontrak, dit wil sê met
instandhouding van die kontrak. As die regsgevolg van repudiëring
deur die skuldeiser, wat
nie deur die skuldenaar aanvaar word nie,
die opheffing is van die skuldenaar se verpligting om daadwerklik te
presteer (wat ookal
die presiese juridiese regverdiging vir so 'n
reël is) dan vind sodanige opheffing plaas onmiddellik nadat die
repudiëring
tot die skuldenaar se kennis gekom het (mits hy
natuurlik nie die repudiëring aanvaar nie). Vir doeleindes van
hierdie beginsel
is dit irrelevant of hy daarna eis vir vervulling in
forma specifica, of vir skadevergoeding of hom verweer teen 'n eis
van die
skuldeiser. Hierdie beslissing is na my mening ook direkte,
hoewel algemene, steun vir die toepassing van die beginsel hier ter
sprake in ons reg.
Origens kan die vraag gestel word of die aanvaarding
van hierdie beginsel in ons reg teenstrydig sou wees met enige van
die beginsels
van ons eie reg of om 'n ander rede ongewensd sou wees.
A B de Villiers
in sy Mora Creditoris as Vorm van Kontrakbreuk ('n ongepubliseerde
proefskrif, Stellenbosch 1953) behandel op 128
ev die baie
soortgelyke geval van die sogenaamde Annahmeverweigerung in
anticipando, naamlik waar 'n skuldeiser vooraf, dit wil
sê voor
'n aanbod ter voldoening aan hom gedoen is, sy skuldenaar op
onomwonde wyse te kenne gee dat hy nie sy medewerking
sal verleen in
die afwikkeling van die voldoeningsproses nie. Hoewel De Villiers (op
88) daarop wys dat 'n aanbod ter voldoening
gedoen moet word alvorens
mora creditoris kan intree, behandel hy op 128 ev die klaarblyklike
verslapping van hierdie reël
in die geval van die sogenaamde
Annahmeverweigerung in anticipando, waar 'n werklike
voldoeningshandeling (oblatio realis ) nie
nodig is nie maar waar 'n
aanbod of verklaring van bereidwilligheid om te presteer (oblatio
verbalis ) voldoende is.
Van Zutphen Practycke sv " oblatie", nr V,
verklaar:
"Oblatie
verbaal van schult die liquijd is, is genoegh, indien den crediteur
refuseert de selve te ontfangen, sonder dat in
sukken ghevalle reele
oblatie word gerequireert; maer indien den crediteur bereyt is om de
schult te ontfangen, als dan is van
noode reele oblatie, en soude
verbale oblatie niet genoegh zijn."
Hierdie stelling
word deur Huber Hedendaagse Rechtsgeleerdheid 3.42.3 onderskryf. De
Villiers (op 133 - 139) wys daarop dat daar
'n dergelike reël in
die moderne vastelandse regstelsels is. Hoe dit ookal
regswetenskaplik verklaar word (sien op 134 - 139)
is dit duidelik
dat De Villiers die regsreël onderskryf dat daar in so 'n geval
minder van die skuldenaar verwag word ten
einde die skuldeiser in
mora te plaas. De Villiers (op 139 - 149) bespreek ook Wessels The
Law of Contract in South Africa 2de
uitg para 2341 (j) se stelling
dat
"A tender is not necessary where the creditor
in anticipation refuses to accept it."
en die dictum van Regter MURRAY in Major's Estate v
De Jager
1944 TPD 96
op 103 - 104 dat
"If a
creditor makes it clear that no tender even if in legal form will be
accepted, he waives the formalities of such a tender,
and the debtor
is protected against costs if he has sent a cheque, or has even
merely expressed his willingness to pay. If the
grantor of an option
repudiates in toto the claim of the person endeavouring to exercise
the same, he cannot claim at the same
time that such person must
fulfil an obligation which is imposed as a condition precedent in the
option itself: his repudiation
dispenses with such fulfilment."
Hoewel De
Villiers, tereg na my mening, die konstruksie van afstanddoening
("waiver") kritiseer (op 142 en 146, 147) sowel
as die
konstruksie van 'n "condition precedent", gaan hy blykbaar
akkoord met Regter MURRAY se stelling dat dit voldoende
is as die
skuldenaar "expressed his willingness to pay", want op 144
verklaar hy dat
"... die Hof se beslissing... gerym kan word
met, en eintlik 'n toepassing is van die reël dat 'n skuldenaar,
in die geval
van 'n skuldeisersweiering in anticipando, minder hoef
te doen om die bekwaamheidselement wat vir 'n aanbod nodig is, daar
te stel
as wat hy andersins sou moes gedoen het."
Daar bestaan 'n baie nou verband tussen hierdie
beginsel en die reël van die Engelse reg, wat hierbo bespreek
is, met betrekking
tot die verslapping van die skuldenaar se
verpligting waar die skuldeiser die ooreenkoms repudieer het maar die
skuldenaar nie
die repudiëring aanvaar het nie. Dit toon, na my
mening, dat laasgenoemde beginsel goed en gemaklik inpas by ons
regsistematiek.
Nienaber (op cit
) sien skynbaar geen gevaar in die aanvaarding van hierdie beginsels
in ons reg nie. (Sien in die algemeen ook
Nienaber "Enkele
Beskouinge oor Kontrakbreuk in anticipando" 26 (1963) THRHR op
19 ev.) Weeramantry The Law of Contract
band 2 para 699 op 674 sê
sv " when tender is dispensed with" onder andere die
volgende:
"In
accordance with the maxim lex non cogit ad inutilia, a formal tender
will not be considered necessary where the creditor
has in
anticipation refused to accept payment... The party whose tender is
so dispensed with must, however, be prepared to make
payment within a
reasonable time if the creditor subsequently demands payment or
signifies his readiness to accept it."’
[67] I am consequently of the view that, based on the assumption that
the plaintiff is bound by its election to keep the contract
alive,
and shorn of its ineffective cancellation, the plaintiff’s
particulars of claim disclose a cause of action for damages
as
surrogate for performance based on the defendant’s repudiation
of the agreement between the parties.
The result
[68] I have set out earlier in this judgment that the parties were in
agreement as to the amount of damages which the plaintiff
suffered,
should the plaintiff succeed in its claim.
[69] In the circumstances the plaintiff is entitled to an award for
its damages as agreed and because of the agreement between
the
parties regarding the quantum thereof, I need not consider its
computation.
[70] I grant a judgment in favour of the plaintiff for:
1. The sum of R 1,64 million;
2. Interest thereon at 15,5% per annum from date of judgment to date
of payment;
3. Costs of suit.
WEPENER
J
JUDGE OF THE HIGH COURT
COUNSEL
FOR THE PLAINTIFF:
Adv
K
Ioulianou
PLAINTIFF’S
ATTORNEYS:
Ramsay
Webber
COUNSEL FOR THE
DEFENDANT:
Adv
SC Rorke SC
Adv D Smith
DEFENDENT’S
ATTORNEYS:
Burns
Delport Attorneys
DATES OF HEARING:
23 and 26
November 2012
DATE
OF JUDGMENT:
7
December 2012.