Jonker and Another v Swart (1100/2002) [2003] ZANCHC 23 (14 February 2003)

Jonker and Another v Swart (1100/2002) [2003] ZANCHC 23 (14 February 2003)

The court found that the contract did not specify a time for performance nor did it grant the respondent a right of withdrawal. The respondent was required to place the applicants in mora by written notice, allowing a reasonable period for performance. The period of five working days given to the applicants to provide a guarantee was found to be unreasonably short, especially considering the respondent himself delayed in providing necessary details for the guarantee. The court held that time was not of the essence in the contract, and the respondent's personal circumstances did not alter this. Consequently, the respondent's cancellation of the agreement was invalid, and the applicants...

Citation
[2003] ZANCHC 23
Parties
Applicant: Adriaan Jacob Adolf Jonker; Applicant: Zachria Elizabeth Jonker; Respondent: Frederick Theodorus Swart
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
14 February 2003
Case Number
1100/2002
Procedural Posture
Civil Application / Final Determination
Outcome
Application granted; respondent's cancellation of the contract declared invalid; specific performance ordered.
Judges
Majiedt R
Legal Topics
Specific Performance, Contract Cancellation, In Mora, Sale of Immovable Property, Bank Guarantee
Land and Property Civil Procedure Specific Performance Contract Cancellation In Mora Sale of Immovable Property Bank Guarantee

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Parties

Adriaan Jacob Adolf Jonker

Applicant

Zachria Elizabeth Jonker

Applicant

Frederick Theodorus Swart

Respondent

Procedural Posture

Civil Application / Final Determination

Legal Issues

  1. 1 Whether the respondent validly cancelled the sale agreement concluded by exercise of the option in clause 9 of the lease.
  2. 2 Whether the seven calendar day (five working days) period given to the applicants to provide a guarantee for the purchase price was fair and reasonable under the circumstances.
  3. 3 Whether time was of the essence in the contract between the parties.

Ratio Decidendi

The court found that the contract did not specify a time for performance nor did it grant the respondent a right of withdrawal. The respondent was required to place the applicants in mora by written notice, allowing a reasonable period for performance. The period of five working days given to the applicants to provide a guarantee was found to be unreasonably short, especially considering the respondent himself delayed in providing necessary details for the guarantee. The court held that time was not of the essence in the contract, and the respondent's personal circumstances did not alter this. Consequently, the respondent's cancellation of the agreement was invalid, and the applicants...

Court Disposition

Application granted; respondent's cancellation of the contract declared invalid; specific performance ordered.

Orders

  • It is declared that the sale agreement concluded by exercise of the option in clause 9 of the lease was not validly cancelled by the respondent.
  • The respondent is ordered to immediately effect transfer of the immovable property described in paragraph 3 of the founding affidavit to the applicants.