Kragga Kamma Estates CC and Another v Flanagan (720/93) [1994] ZASCA 137; 1995 (2) SA 367 (AD); [1995] 1 All SA 486 (A) (29 September 1994)

Kragga Kamma Estates CC and Another v Flanagan (720/93) [1994] ZASCA 137; 1995 (2) SA 367 (AD); [1995] 1 All SA 486 (A) (29 September 1994)

The Supreme Court of Appeal held that the respondent did not validly cancel the sale agreement. The demand for payment and notice of cancellation were conditional, ambiguous, and subject to an uncertain future event, namely the court's finding that a sale had occurred. Such conditional demands cannot place the debtor in mora or constitute effective cancellation. Furthermore, the respondent's acceptance of monthly payments after the breach amounted to a waiver of her right to summarily cancel the contract. Even if the first defendant's obligation to pay was revived, the subsequent tender to pay R70,000 was made before any unequivocal cancellation. The notices of intention to cancel and...

Citation
[1994] ZASCA 137
Parties
Appellant: Kragga Kamma Estates CC; Appellant: Lester Dennis Billson; Respondent: Jessie Johanna Flanagan
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 September 1994
Case Number
720/93
Procedural Posture
Civil Appeal / Appeal From Trial Court Judgment
Outcome
Appeal upheld; respondent's claim dismissed; appellants entitled to costs including costs of two counsel.
Judges
E M Grosskopf, Nestadt, Kumleben, Howie, Nicholas
Legal Topics
Contract Cancellation, Repudiation, Lex Commissoria, Mora Ex Re, Interpellatio Iudicialis
Land and Property Civil Procedure Contract Cancellation Repudiation Lex Commissoria Mora Ex Re Interpellatio Iudicialis

Case Brief

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Parties

Kragga Kamma Estates CC

Appellant

Lester Dennis Billson

Appellant

Jessie Johanna Flanagan

Respondent

Procedural Posture

Civil Appeal / Appeal From Trial Court Judgment

Legal Issues

  1. 1 Whether the respondent validly cancelled the sale agreement for the property.
  2. 2 Whether the demand for payment and notice of cancellation were effective and unequivocal.
  3. 3 Whether the acceptance of monthly payments constituted a waiver of the right to cancel.

Ratio Decidendi

The Supreme Court of Appeal held that the respondent did not validly cancel the sale agreement. The demand for payment and notice of cancellation were conditional, ambiguous, and subject to an uncertain future event, namely the court's finding that a sale had occurred. Such conditional demands cannot place the debtor in mora or constitute effective cancellation. Furthermore, the respondent's acceptance of monthly payments after the breach amounted to a waiver of her right to summarily cancel the contract. Even if the first defendant's obligation to pay was revived, the subsequent tender to pay R70,000 was made before any unequivocal cancellation. The notices of intention to cancel and...

Court Disposition

Appeal upheld; respondent's claim dismissed; appellants entitled to costs including costs of two counsel.

Orders

  • The appeal is upheld with costs, including the costs of two counsel, except for the costs of including counsel's arguments on the application for leave to appeal in the record.
  • The order of the trial court is set aside and substituted with: (1) The plaintiff's action is dismissed with costs, including the costs of two counsel. (2) The first defendant is ordered to immediately pay the plaintiff the sum of R70,000. (3) In accordance with clause 2 of the deed of sale entered into between the...