Lombard and Another v Okhionks (46878/2012) [2013] ZAGPPHC 486 (18 December 2013)

Lombard and Another v Okhionks (46878/2012) [2013] ZAGPPHC 486 (18 December 2013)

The court found that although the applicants were initially entitled to cancel the agreement following the respondent's breach, their subsequent acceptance of payment towards the purchase price after cancellation constituted an objective manifestation of an election to affirm the contract. The applicants' conduct in receiving and retaining the payment could only be explained by a revival of the agreement, and they could not both approbate and reprobate. The applicants were therefore not entitled to the declaratory relief sought, as their actions had revived the contract and negated the cancellation. The court also exercised its discretion regarding costs, finding that the circumstances...

Citation
[2013] ZAGPPHC 486
Parties
Applicant: Stephanus Gerhardus Lombard; Applicant: Wilna Lombard; Respondent: Kevin Osaro Okhionks
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
18 December 2013
Case Number
46878/2012
Procedural Posture
Civil Application / Final Judgment
Outcome
Application dismissed. No order as to costs.
Judges
Kollapen
Legal Topics
Sale of Land, Contract Cancellation, Conventional Penalties Act, Specific Performance
Land and Property Civil Procedure Sale of Land Contract Cancellation Conventional Penalties Act Specific Performance

Case Brief

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Parties

Stephanus Gerhardus Lombard

Applicant

Wilna Lombard

Applicant

Kevin Osaro Okhionks

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Was the agreement of sale validly cancelled or did the applicants' election to seek specific performance bind them to that course, and did subsequent payment revive the agreement?
  2. 2 If the agreement was validly cancelled, is the amount claimed as 'roukoop' disproportionate to the prejudice suffered as contemplated in Section 3 of the Conventional Penalties Act 15 of 1962?

Ratio Decidendi

The court found that although the applicants were initially entitled to cancel the agreement following the respondent's breach, their subsequent acceptance of payment towards the purchase price after cancellation constituted an objective manifestation of an election to affirm the contract. The applicants' conduct in receiving and retaining the payment could only be explained by a revival of the agreement, and they could not both approbate and reprobate. The applicants were therefore not entitled to the declaratory relief sought, as their actions had revived the contract and negated the cancellation. The court also exercised its discretion regarding costs, finding that the circumstances...

Court Disposition

Application dismissed. No order as to costs.

Orders

  • The application is dismissed.
  • No order is made with regard to the costs of the application.