Benson v SA Mutual Life Assurance Society (152/85) [1985] ZASCA 114; [1986] 2 All SA 30 (A) (7 November 1985)

Benson v SA Mutual Life Assurance Society (152/85) [1985] ZASCA 114; [1986] 2 All SA 30 (A) (7 November 1985)

The Supreme Court of Appeal held that the trial court correctly exercised its discretion in granting specific performance for delivery of the shares. South African law gives the plaintiff the right to elect specific performance, subject only to the court's discretion, which must be exercised judicially and not according to rigid or imported English law rules. The fact that the shares were readily available and that damages could compensate the respondent did not constitute sufficient reason to deny specific performance. The respondent was not obliged to mitigate its loss by purchasing shares elsewhere, as the contract entitled it to delivery. The appellant's argument that performance was...

Citation
[1985] ZASCA 114
Parties
Appellant: C R Benson; Respondent: S A Mutual Life Assurance Society
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
7 November 1985
Case Number
152/85
Procedural Posture
Civil Appeal / Appeal From Trial Court Judgment
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Corbett, Kotzé, Hefer, Galgut, Cillié
Legal Topics
Specific Performance, Mitigation of Damages, Contract of Sale, Shares, Judicial Discretion
Commercial and Corporate Specific Performance Mitigation of Damages Contract of Sale Shares Judicial Discretion

Case Brief

Summary, issues, holding and outcome

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Parties

C R Benson

Appellant

S A Mutual Life Assurance Society

Respondent

Procedural Posture

Civil Appeal / Appeal From Trial Court Judgment

Legal Issues

  1. 1 Whether the trial court correctly exercised its discretion in granting specific performance for delivery of shares.
  2. 2 Whether the respondent was obliged to mitigate its loss by purchasing shares elsewhere.
  3. 3 Whether English law rules on specific performance apply to South African law.

Ratio Decidendi

The Supreme Court of Appeal held that the trial court correctly exercised its discretion in granting specific performance for delivery of the shares. South African law gives the plaintiff the right to elect specific performance, subject only to the court's discretion, which must be exercised judicially and not according to rigid or imported English law rules. The fact that the shares were readily available and that damages could compensate the respondent did not constitute sufficient reason to deny specific performance. The respondent was not obliged to mitigate its loss by purchasing shares elsewhere, as the contract entitled it to delivery. The appellant's argument that performance was...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs occasioned by the employment of two counsel.
  • The order for delivery of the shares stands.