Cohen and Another v Lench and Another (139/06) [2007] ZASCA 68; [2007] SCA 68 (RSA) ; 2007 (6) SA 132 (SCA) (29 May 2007)

Cohen and Another v Lench and Another (139/06) [2007] ZASCA 68; [2007] SCA 68 (RSA) ; 2007 (6) SA 132 (SCA) (29 May 2007)

The Supreme Court of Appeal found that the sellers failed to deliver the notice to remedy breach at the specific domicilium address nominated by the purchasers, as required by the contract. Attaching the notice to the perimeter gate of the townhouse complex did not constitute valid delivery, since the domicilium was the specific unit and not the complex as a whole. Furthermore, the evidence did not establish that the purchasers received the notice. The alleged telefax acknowledging receipt was found, on the probabilities, to be a forgery. As a result, the sellers were not entitled to cancel the agreement, and the cancellation was unlawful. The purchasers were therefore entitled to the...

Citation
[2007] ZASCA 68
Parties
Appellant: Renata Cohen; Appellant: Charles Nigel Cohen; Respondent: Stewart Charles Lench; Respondent: Pamela Pillay
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 May 2007
Case Number
139/06
Procedural Posture
Civil Appeal / Appeal From Full Court; Special Leave Granted
Outcome
Appeal upheld with costs, including costs of two counsel. The order of the Full Court is set aside and replaced with an order declaring the contract not lawfully cancelled and compelling transfer of the property.
Judges
Nugent, Streicher, Farlam, Jafta, Cachalia
Legal Topics
Specific Performance, Delivery of Notice, Contract Cancellation, Sale of Land
Land and Property Civil Procedure Specific Performance Delivery of Notice Contract Cancellation Sale of Land

Case Brief

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Parties

Renata Cohen

Appellant

Charles Nigel Cohen

Appellant

Stewart Charles Lench

Respondent

Pamela Pillay

Respondent

Procedural Posture

Civil Appeal / Appeal From Full Court; Special Leave Granted

Legal Issues

  1. 1 Whether the sellers properly delivered notice to remedy breach to the purchasers as required by the contract.
  2. 2 Whether the purchasers received the notice to remedy breach.
  3. 3 Whether the sellers were entitled to cancel the agreement of sale for breach.

Ratio Decidendi

The Supreme Court of Appeal found that the sellers failed to deliver the notice to remedy breach at the specific domicilium address nominated by the purchasers, as required by the contract. Attaching the notice to the perimeter gate of the townhouse complex did not constitute valid delivery, since the domicilium was the specific unit and not the complex as a whole. Furthermore, the evidence did not establish that the purchasers received the notice. The alleged telefax acknowledging receipt was found, on the probabilities, to be a forgery. As a result, the sellers were not entitled to cancel the agreement, and the cancellation was unlawful. The purchasers were therefore entitled to the...

Court Disposition

Appeal upheld with costs, including costs of two counsel. The order of the Full Court is set aside and replaced with an order declaring the contract not lawfully cancelled and compelling transfer of the property.

Orders

  • It is declared that the contract of sale between the applicants and the first and second respondents has not been lawfully cancelled.
  • The first and second respondents are ordered within 10 days of the date of this order to do all things necessary and sign all documents necessary in order to effect transfer of Stand 250, Sandown Extension 24, situate at 49A Edward Rubenstein Drive, Sandown, to the applicants, failing which the Sheriff of this court...