Lench and Another v Cohen and Another (A5009/05) [2005] ZAGPHC 116; 2006 (2) SA 99 (W) (10 November 2005)

Lench and Another v Cohen and Another (A5009/05) [2005] ZAGPHC 116; 2006 (2) SA 99 (W) (10 November 2005)

The court held that the letter dated 5 January 2004, although delivered before the actual breach occurred, was intended to take effect only upon breach and thus became operative once the respondents failed to furnish the guarantees by the stipulated deadline. The mistaken computation of the remedy period did not invalidate the notice, as the contract did not require a fixed date for compliance. Delivery by affixing the notice to the main gate of the townhouse complex was deemed reasonable and sufficient under the circumstances, satisfying the requirements of service at the chosen domicilium citandi et executandi. The respondents were validly placed in mora, and the cancellation of the...

Citation
[2005] ZAGPHC 116
Parties
Appellant: Stewart Charles Lench; Appellant: Pamela Pillay; Respondent: Renata Cohen; Respondent: Charles Nigel Cohen
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
10 November 2005
Case Number
A5009/05
Procedural Posture
Civil Appeal / Appeal From High Court Judgment on Validity of Cancellation of Sale Agreement
Outcome
Appeal upheld; application dismissed; cross-appeal dismissed.
Judges
P Boruchowitz, K Satchwell, B H Mbha
Legal Topics
Agreement of Sale, Cancellation of Contract, Domicilium Citandi Et Executandi, Notice of Breach, Specific Performance
Land and Property Civil Procedure Agreement of Sale Cancellation of Contract Domicilium Citandi Et Executandi Notice of Breach Specific Performance

Case Brief

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Parties

Stewart Charles Lench

Appellant

Pamela Pillay

Appellant

Renata Cohen

Respondent

Charles Nigel Cohen

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment on Validity of Cancellation of Sale Agreement

Legal Issues

  1. 1 Was the cancellation of the agreement of sale validly effected by the appellants?
  2. 2 Did the letter dated 5 January 2004 constitute a valid notice as required by clause 8 of the agreement?
  3. 3 Was proper delivery of the notice effected at the respondents' chosen domicilium citandi et executandi?

Ratio Decidendi

The court held that the letter dated 5 January 2004, although delivered before the actual breach occurred, was intended to take effect only upon breach and thus became operative once the respondents failed to furnish the guarantees by the stipulated deadline. The mistaken computation of the remedy period did not invalidate the notice, as the contract did not require a fixed date for compliance. Delivery by affixing the notice to the main gate of the townhouse complex was deemed reasonable and sufficient under the circumstances, satisfying the requirements of service at the chosen domicilium citandi et executandi. The respondents were validly placed in mora, and the cancellation of the...

Court Disposition

Appeal upheld; application dismissed; cross-appeal dismissed.

Orders

  • The appeal is upheld with costs.
  • The order of the court below is set aside and substituted with: 'The application under case number 04/2048 is dismissed with costs.'