Sewpersadh and Another v Dookie (231/08) [2009] ZASCA 78; 2009 (6) SA 611 (SCA); [2009] 4 All SA 338 (SCA) (1 June 2009)

Sewpersadh and Another v Dookie (231/08) [2009] ZASCA 78; 2009 (6) SA 611 (SCA); [2009] 4 All SA 338 (SCA) (1 June 2009)

The Supreme Court of Appeal held that the appellants validly cancelled the agreement of sale after the respondent failed to pay the full purchase price within the contractually stipulated period and did not remedy the breach after written notice. The subsequent payments made by the respondent did not amount to a revival of the cancelled agreement, as there was no evidence of consensus between the parties to restore the contract. The respondent's denial of breach and cancellation precluded any finding of agreement to revive. The court below erred in finding that the agreement was revived, and the formalities of the Alienation of Land Act were not engaged as no new agreement was established.

Citation
[2009] ZASCA 78
Parties
Appellant: Gopaul Sewpersadh; Appellant: Roshni Devi Sewpersadh; Respondent: Suriaprakash Dookie
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 June 2009
Case Number
231/08
Procedural Posture
Civil Appeal / Appeal From High Court, Durban
Outcome
Appeal upheld. The order of the court below is set aside and replaced.
Judges
Streicher, Jafta, Maya, Hurt, Tshiqi
Legal Topics
Alienation of Land Act, Contract Cancellation, Revival of Contract, Eviction, Formalities of Contract
Land and Property Civil Procedure Alienation of Land Act Contract Cancellation Revival of Contract Eviction Formalities of Contract

Case Brief

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Parties

Gopaul Sewpersadh

Appellant

Roshni Devi Sewpersadh

Appellant

Suriaprakash Dookie

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court, Durban

Legal Issues

  1. 1 Whether the written agreement of sale was validly cancelled by the appellants.
  2. 2 Whether the conduct of the parties after cancellation amounted to a revival of the agreement.
  3. 3 Whether the revived agreement, if any, needed to comply with the formalities of the Alienation of Land Act.

Ratio Decidendi

The Supreme Court of Appeal held that the appellants validly cancelled the agreement of sale after the respondent failed to pay the full purchase price within the contractually stipulated period and did not remedy the breach after written notice. The subsequent payments made by the respondent did not amount to a revival of the cancelled agreement, as there was no evidence of consensus between the parties to restore the contract. The respondent's denial of breach and cancellation precluded any finding of agreement to revive. The court below erred in finding that the agreement was revived, and the formalities of the Alienation of Land Act were not engaged as no new agreement was established.

Court Disposition

Appeal upheld. The order of the court below is set aside and replaced.

Orders

  • The appeal succeeds with costs.
  • The written contract of purchase and sale entered into by the applicants and the respondent on 7 October 2003 is declared and duly cancelled.