Potgieter NO en Ander v Le Roux (A 247/11) [2012] ZAWCHC 54 (20 February 2012)

Potgieter NO en Ander v Le Roux (A 247/11) [2012] ZAWCHC 54 (20 February 2012)

The court found that the appellants did not give proper and unequivocal notice of cancellation as required by clause 14 of the sale agreement. The correspondence relied upon by the appellants did not manifest a clear intention to cancel, and subsequent conduct indicated a desire to continue with the contract. The purported cancellation in May 2004 could not rely on earlier notices, and there was no valid cancellation based on breach by the respondent. Without valid cancellation, the penalty clause did not operate, and the appellants were not entitled to forfeit the deposit. The magistrate's court correctly ordered repayment of the R100,000 deposit with interest and costs.

Citation
[2012] ZAWCHC 54
Parties
Appellant: Jacobus Potgieter N.O.; Appellant: Daniel Johannes Joubert; Respondent: Marais Le Roux
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
20 February 2012
Case Number
A247/11
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court Judgment
Outcome
Appeal dismissed with costs.
Judges
Henney, Louw
Legal Topics
Deposit Recovery, Contract Cancellation, Forfeiture Clause, Burden of Proof
Land and Property Civil Procedure Deposit Recovery Contract Cancellation Forfeiture Clause Burden of Proof

Case Brief

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Parties

Jacobus Potgieter N.O.

Appellant

Daniel Johannes Joubert

Appellant

Marais Le Roux

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court Judgment

Legal Issues

  1. 1 Whether the appellants validly cancelled the sale agreement in accordance with its terms.
  2. 2 Whether proper notice of cancellation was given to the respondent as required by the contract.
  3. 3 Whether the appellants were entitled to forfeit the R100,000 deposit under the penalty clause.

Ratio Decidendi

The court found that the appellants did not give proper and unequivocal notice of cancellation as required by clause 14 of the sale agreement. The correspondence relied upon by the appellants did not manifest a clear intention to cancel, and subsequent conduct indicated a desire to continue with the contract. The purported cancellation in May 2004 could not rely on earlier notices, and there was no valid cancellation based on breach by the respondent. Without valid cancellation, the penalty clause did not operate, and the appellants were not entitled to forfeit the deposit. The magistrate's court correctly ordered repayment of the R100,000 deposit with interest and costs.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.
  • Condonation for late prosecution of the appeal is granted.