Thompson v Scholtz (167/96) [1998] ZASCA 87; 1999 (1) SA 232 (SCA); [1998] 4 All SA 526 (A) (28 September 1998)

Thompson v Scholtz (167/96) [1998] ZASCA 87; 1999 (1) SA 232 (SCA); [1998] 4 All SA 526 (A) (28 September 1998)

The Supreme Court of Appeal held that the exceptio non adimpleti contractus was available to the defendant, as the plaintiff had not rendered full performance by failing to vacate the farmhouse. However, the court found that the strict application of the BK Tooling formula was inappropriate for obligations of a continuing nature, such as the duty to provide occupation of property. The court adopted the analogy of remission of rent from lease law, allowing for a reduction in the occupational interest owed to the plaintiff in proportion to the defendant's diminished enjoyment of the property. The court determined, on the available evidence and in the interests of fairness, that the...

Citation
[1998] ZASCA 87
Parties
Appellant: William Roland Thompson; Respondent: Johannes Nicolaas Scholtz
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 September 1998
Case Number
167/96
Procedural Posture
Civil Appeal / Appeal From Full Court of Cape Provincial Division
Outcome
Appeal upheld with costs. Plaintiff awarded 75% of occupational interest; defendant awarded consequential damages on counterclaims.
Judges
Van Heerden, Smalberger, Nienaber, Zulman, Melunsky
Legal Topics
Exceptio Non Adimpleti Contractus, Occupational Interest, Remission of Rent, Reciprocal Obligations, Breach of Contract
Commercial and Corporate Land and Property Exceptio Non Adimpleti Contractus Occupational Interest Remission of Rent Reciprocal Obligations Breach of Contract

Case Brief

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Parties

William Roland Thompson

Appellant

Johannes Nicolaas Scholtz

Respondent

Procedural Posture

Civil Appeal / Appeal From Full Court of Cape Provincial Division

Legal Issues

  1. 1 Whether the plaintiff is entitled to claim occupational interest when his own performance was incomplete.
  2. 2 Whether the exceptio non adimpleti contractus is a valid defence to a claim for occupational interest under these circumstances.
  3. 3 Whether the plaintiff is entitled to a reduced amount of occupational interest based on fairness and the analogy of remission of rent.

Ratio Decidendi

The Supreme Court of Appeal held that the exceptio non adimpleti contractus was available to the defendant, as the plaintiff had not rendered full performance by failing to vacate the farmhouse. However, the court found that the strict application of the BK Tooling formula was inappropriate for obligations of a continuing nature, such as the duty to provide occupation of property. The court adopted the analogy of remission of rent from lease law, allowing for a reduction in the occupational interest owed to the plaintiff in proportion to the defendant's diminished enjoyment of the property. The court determined, on the available evidence and in the interests of fairness, that the...

Court Disposition

Appeal upheld with costs. Plaintiff awarded 75% of occupational interest; defendant awarded consequential damages on counterclaims.

Orders

  • The appeal is upheld with costs, including the costs of two counsel.
  • Plaintiff is granted judgment on his main claim in the amount of R39,243.75 (being 75% of the occupational interest of R52,325, calculated at 12.5% p.a. on R1.1m from 1 May 1992 to 17 September 1992).