Sewpersadh and Another v Dookie (6090/2006) [2007] ZAKZHC 31; [2008] 1 All SA 286 (D); 2008 (4) SA 127 (D); 2008 (2) SA 526 (D) (8 November 2007)

Sewpersadh and Another v Dookie (6090/2006) [2007] ZAKZHC 31; [2008] 1 All SA 286 (D); 2008 (4) SA 127 (D); 2008 (2) SA 526 (D) (8 November 2007)

The court found that the respondent was in breach of the agreement of sale by failing to pay the full purchase price within the required period, entitling the applicants to cancel the agreement. However, the applicants' conduct after cancellation—specifically, requesting and accepting substantial payments from the respondent—constituted unequivocal conduct from which a compelling inference could be drawn that the parties tacitly agreed to revive the cancelled agreement. The retention of payments made after cancellation and the absence of any tender to repay those amounts further supported the inference of revival. The court held that such revival was not precluded by the Alienation of...

Citation
[2007] ZAKZHC 31
Parties
Applicant: Gopaul Sewpersadh; Applicant: Roshni Devi Sewpersadh; Respondent: Suriaprakash Dookie
Court
High Courts - Kwazulu Natal
Jurisdiction
South Africa
Judgment Date
8 November 2007
Case Number
6090/2006
Procedural Posture
Urgent Application / Judgment on Application for Ejectment Following Alleged Cancellation of Sale Agreement
Outcome
Application dismissed with costs.
Judges
Swain
Legal Topics
Alienation of Land Act, Contract Cancellation, Waiver of Rights, Tacit Agreement, Revival of Contract
Land and Property Civil Procedure Alienation of Land Act Contract Cancellation Waiver of Rights Tacit Agreement Revival of Contract

Case Brief

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Parties

Gopaul Sewpersadh

Applicant

Roshni Devi Sewpersadh

Applicant

Suriaprakash Dookie

Respondent

Procedural Posture

Urgent Application / Judgment on Application for Ejectment Following Alleged Cancellation of Sale Agreement

Legal Issues

  1. 1 Whether the applicants lawfully cancelled the agreement of sale.
  2. 2 Whether the applicants waived any accrued right to cancel the agreement before purporting to do so.
  3. 3 Whether the cancelled agreement was revived by the parties' conduct.

Ratio Decidendi

The court found that the respondent was in breach of the agreement of sale by failing to pay the full purchase price within the required period, entitling the applicants to cancel the agreement. However, the applicants' conduct after cancellation—specifically, requesting and accepting substantial payments from the respondent—constituted unequivocal conduct from which a compelling inference could be drawn that the parties tacitly agreed to revive the cancelled agreement. The retention of payments made after cancellation and the absence of any tender to repay those amounts further supported the inference of revival. The court held that such revival was not precluded by the Alienation of...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.