Pereira v Landman (318/84) [1985] ZASCA 118 (15 November 1985)

Pereira v Landman (318/84) [1985] ZASCA 118 (15 November 1985)

The Supreme Court of Appeal held that the hand-written cancellation clause and printed clause 12 were not in contradiction but could be reconciled. The hand-written clause provided for cancellation upon the purchaser's failure to pay an instalment of the purchase price, while clause 12 applied to breaches of other terms and required notice. The seller was entitled to elect cancellation upon breach of the payment term and was required to communicate this election to the purchaser. The trial court erred in construing the hand-written clause as self-acting and in finding a contradiction between the clauses. The appeal was upheld, and the judgment of the trial court was set aside.

Citation
[1985] ZASCA 118
Parties
Appellant: J DA C Pereira; Respondent: H Landman
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
15 November 1985
Case Number
318/84
Procedural Posture
Civil Appeal / Appeal From Witwatersrand Local Division
Outcome
Appeal upheld; judgment of the trial court set aside.
Judges
Kotzé, Hoexter, Van Heerden, Grosskopf, Nicholas
Legal Topics
Contract Interpretation, Automatic Cancellation Clause, Forfeiture of Deposit, Ejectment
Land and Property Civil Procedure Contract Interpretation Automatic Cancellation Clause Forfeiture of Deposit Ejectment

Case Brief

Summary, issues, holding and outcome

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Parties

J DA C Pereira

Appellant

H Landman

Respondent

Procedural Posture

Civil Appeal / Appeal From Witwatersrand Local Division

Legal Issues

  1. 1 Whether the contract was automatically cancelled upon the purchaser's failure to pay the instalment by the stipulated date.
  2. 2 Whether the seller was required to give written notice in terms of clause 12 before cancelling the contract.
  3. 3 Whether the hand-written cancellation clause and printed clause 12 can be reconciled or are in contradiction.

Ratio Decidendi

The Supreme Court of Appeal held that the hand-written cancellation clause and printed clause 12 were not in contradiction but could be reconciled. The hand-written clause provided for cancellation upon the purchaser's failure to pay an instalment of the purchase price, while clause 12 applied to breaches of other terms and required notice. The seller was entitled to elect cancellation upon breach of the payment term and was required to communicate this election to the purchaser. The trial court erred in construing the hand-written clause as self-acting and in finding a contradiction between the clauses. The appeal was upheld, and the judgment of the trial court was set aside.

Court Disposition

Appeal upheld; judgment of the trial court set aside.

Orders

  • Judgment with costs is entered in favour of the defendant.
  • An order will issue ejecting the plaintiff, and all those claiming any right of occupation through him, from the property, being stand no 1456, known as Leeupoort Street, Boksburg.