Rich NO and Others v Botha and Another (476/09) [2009] ZANCHC 79 (13 November 2009)

Rich NO and Others v Botha and Another (476/09) [2009] ZANCHC 79 (13 November 2009)

The court found that the applicants complied with the requirements of section 19 of the Alienation of Land Act by notifying the respondents of their breach, demanding rectification, and indicating the consequences of non-compliance. The letter of 23 February 2009, read in context with the prior correspondence, constituted a clear and unequivocal notice of cancellation. The cancellation clause was not contrary to public policy, as the contract was freely and voluntarily entered into, and the respondents were aware of its terms. The doctrine of pacta sunt servanda applies, and the respondents' offer to pay the balance of the purchase price was made after cancellation and was not accepted,...

Citation
[2009] ZANCHC 79
Parties
Applicant: Henry Robins Rich N.O.; Applicant: Johannes Jacobus Wiese Hendriks N.O.; Applicant: Martha Magrieta Hendriks N.O.; Respondent: Lorraine Sophie Botha; Respondent: Khululekani Laundry CC
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
13 November 2009
Case Number
476/09
Procedural Posture
Review Application / Judgment Delivered After Opposed Application and Counter Application
Outcome
Application granted. The contract of sale is declared cancelled. Respondents ordered to vacate the property and pay costs.
Judges
GNZ Mjali
Legal Topics
Alienation of Land Act, Contract Cancellation, Public Policy, Specific Performance, Notice of Breach
Land and Property Civil Procedure Alienation of Land Act Contract Cancellation Public Policy Specific Performance Notice of Breach

Case Brief

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Parties

Henry Robins Rich N.O.

Applicant

Johannes Jacobus Wiese Hendriks N.O.

Applicant

Martha Magrieta Hendriks N.O.

Applicant

Lorraine Sophie Botha

Respondent

Khululekani Laundry CC

Respondent

Procedural Posture

Review Application / Judgment Delivered After Opposed Application and Counter Application

Legal Issues

  1. 1 Whether the applicants' letter dated 23 February 2009 constituted a proper notice of cancellation.
  2. 2 Whether the cancellation clause in the contract is contrary to public policy and unconstitutional.
  3. 3 What is the effect of the respondents' offer dated 03 March 2009 to pay the balance of the purchase price.

Ratio Decidendi

The court found that the applicants complied with the requirements of section 19 of the Alienation of Land Act by notifying the respondents of their breach, demanding rectification, and indicating the consequences of non-compliance. The letter of 23 February 2009, read in context with the prior correspondence, constituted a clear and unequivocal notice of cancellation. The cancellation clause was not contrary to public policy, as the contract was freely and voluntarily entered into, and the respondents were aware of its terms. The doctrine of pacta sunt servanda applies, and the respondents' offer to pay the balance of the purchase price was made after cancellation and was not accepted,...

Court Disposition

Application granted. The contract of sale is declared cancelled. Respondents ordered to vacate the property and pay costs.

Orders

  • The contract of sale concluded between the applicants and the first respondent on 19 November 2003 is declared cancelled or is hereby cancelled.
  • The first respondent and any other person occupying Erf 4128, De Aar through her must vacate the premises with their belongings within one month of this order.