Becker v Venter and Others (2832/2006) [2006] ZAFSHC 34 (28 September 2006)

Becker v Venter and Others (2832/2006) [2006] ZAFSHC 34 (28 September 2006)

The court found that the respondents, with full knowledge of their right to cancel the contract due to the applicant's failure to provide a guarantee by 1 July 2005, elected to keep the contract alive by their conduct. They repeatedly sought updates on the guarantee, accepted higher occupational rent calculated as if the purchase price had been paid, and allowed the applicant to remain in possession of the property. Their actions were objectively inconsistent with an intention to cancel the contract for the breach. Clause 12 of the contract did not prevent waiver of the right to cancel for a breach that had already occurred. The respondents' subsequent attempt to cancel the contract on 15...

Citation
[2006] ZAFSHC 34
Parties
Applicant: Louis Petrus Becker; Respondent: Stephanus Cornelius Venter; Respondent: Dirk Greyling Venter; Respondent: Dirna Hendrina Venter
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
28 September 2006
Case Number
2832/2006
Procedural Posture
Urgent Application / First Instance Judgment
Outcome
Application granted with costs.
Judges
Van der Merwe R
Legal Topics
Specific Performance, Waiver of Rights, Contract Cancellation, Sale of Land, Occupational Rent
Land and Property Civil Procedure Specific Performance Waiver of Rights Contract Cancellation Sale of Land Occupational Rent

Case Brief

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Parties

Louis Petrus Becker

Applicant

Stephanus Cornelius Venter

Respondent

Dirk Greyling Venter

Respondent

Dirna Hendrina Venter

Respondent

Procedural Posture

Urgent Application / First Instance Judgment

Legal Issues

  1. 1 Whether the respondents were entitled to cancel the sale agreement due to the applicant's failure to provide a guarantee for the purchase price by the stipulated date.
  2. 2 Whether the respondents had waived their right to cancel the contract by their conduct after the breach.
  3. 3 Whether the applicant is entitled to specific performance compelling transfer of the property.

Ratio Decidendi

The court found that the respondents, with full knowledge of their right to cancel the contract due to the applicant's failure to provide a guarantee by 1 July 2005, elected to keep the contract alive by their conduct. They repeatedly sought updates on the guarantee, accepted higher occupational rent calculated as if the purchase price had been paid, and allowed the applicant to remain in possession of the property. Their actions were objectively inconsistent with an intention to cancel the contract for the breach. Clause 12 of the contract did not prevent waiver of the right to cancel for a breach that had already occurred. The respondents' subsequent attempt to cancel the contract on 15...

Court Disposition

Application granted with costs.

Orders

  • The respondents are ordered to transfer the farm Newmarket, approximately 593 hectares in the district of Harrismith, to the applicant.
  • Ancillary relief as set out in prayers 2 and 3 of the Notice of Motion is granted.