Liebenberg v Neville and Another (120/88) [1988] ZASCA 121 (29 September 1988)

Liebenberg v Neville and Another (120/88) [1988] ZASCA 121 (29 September 1988)

The court found that Mrs. Smit's inability to obtain transfer of the farm was not due to any fault on her part. The refusal of the Land Bank to grant her a loan made performance in the manner contemplated by the contract impossible, but Mrs. Smit was entitled to waive this provision and tender payment directly to the appellant or his agent. The guarantee provided to the appellant's attorneys was sufficient, and the appellant's refusal to accept it was unjustified. All requirements of clause 19 were satisfied, entitling the respondents to restitution and specific performance. The appellant failed to adduce evidence of impossibility of performance regarding the delivery of documents, and...

Citation
[1988] ZASCA 121
Parties
Appellant: Johannes Augustinus Liebenberg; Respondent: Arthur Michael Neville; Respondent: Joel Melamed N.O.
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 September 1988
Case Number
120/88
Procedural Posture
Civil Appeal / Appeal From Witwatersrand Local Division
Outcome
Appeal dismissed with costs, including the costs of two counsel.
Judges
Corbett, Grosskopf, Smalberger, Milne, Nicholas
Legal Topics
Contract Interpretation, Specific Performance, Restitution, Impossibility of Performance
Commercial and Corporate Land and Property Contract Interpretation Specific Performance Restitution Impossibility of Performance

Case Brief

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Parties

Johannes Augustinus Liebenberg

Appellant

Arthur Michael Neville

Respondent

Joel Melamed N.O.

Respondent

Procedural Posture

Civil Appeal / Appeal From Witwatersrand Local Division

Legal Issues

  1. 1 Whether Mrs. Smit's failure to obtain transfer of the farm was through no fault of her own as contemplated by clause 19 of the contract.
  2. 2 Whether the respondents were entitled to relief under clause 19 of the contract.
  3. 3 Whether the appellant was justified in refusing to accept the guarantee provided by Mrs. Smit.

Ratio Decidendi

The court found that Mrs. Smit's inability to obtain transfer of the farm was not due to any fault on her part. The refusal of the Land Bank to grant her a loan made performance in the manner contemplated by the contract impossible, but Mrs. Smit was entitled to waive this provision and tender payment directly to the appellant or his agent. The guarantee provided to the appellant's attorneys was sufficient, and the appellant's refusal to accept it was unjustified. All requirements of clause 19 were satisfied, entitling the respondents to restitution and specific performance. The appellant failed to adduce evidence of impossibility of performance regarding the delivery of documents, and...

Court Disposition

Appeal dismissed with costs, including the costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.