Tsangarakis N.O. and Another v Kgato Project Management (Pty) Ltd and Another (1021/2017) [2017] ZAFSHC 76 (8 June 2017)

Tsangarakis N.O. and Another v Kgato Project Management (Pty) Ltd and Another (1021/2017) [2017] ZAFSHC 76 (8 June 2017)

Although the applicant is generally entitled to claim specific performance for breach of contract, the court retains discretion to refuse such relief where it would operate unduly harshly on the respondent or fail to achieve the intended result. In this case, the respondent's inability to provide the bank guarantee or cash due to cash flow problems, despite efforts to comply, renders specific performance inappropriate. The court finds that granting specific performance would not produce the desired effect and may result in injustice. However, the respondent admits liability for costs, and the contract provides for such liability. Accordingly, the application for specific performance is...

Citation
[2017] ZAFSHC 76
Parties
Applicant: Andriane Tsangarakis N.O.; Applicant: Stamatios Tsangarakis N.O.; Respondent: Kgato Project Management (Pty) Ltd; Respondent: Nitatrim (Pty) Ltd
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
8 June 2017
Case Number
1021/2017
Procedural Posture
Urgent Application / Judgment
Outcome
Application for specific performance dismissed; costs order granted against the first respondent.
Judges
Ramdeyal
Legal Topics
Specific Performance, Contract Breach, Sectional Title Property, Auction Sale, Costs Order
Land and Property Civil Procedure Specific Performance Contract Breach Sectional Title Property Auction Sale Costs Order

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Parties

Andriane Tsangarakis N.O.

Applicant

Stamatios Tsangarakis N.O.

Applicant

Kgato Project Management (Pty) Ltd

Respondent

Nitatrim (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to an order of specific performance compelling the first respondent to provide a bank guarantee or cash for the purchase price.
  2. 2 Whether the first respondent's alleged cash flow problems constitute impossibility of performance under South African contract law.
  3. 3 Whether the court should exercise its discretion to refuse specific performance and instead grant a costs order.

Ratio Decidendi

Although the applicant is generally entitled to claim specific performance for breach of contract, the court retains discretion to refuse such relief where it would operate unduly harshly on the respondent or fail to achieve the intended result. In this case, the respondent's inability to provide the bank guarantee or cash due to cash flow problems, despite efforts to comply, renders specific performance inappropriate. The court finds that granting specific performance would not produce the desired effect and may result in injustice. However, the respondent admits liability for costs, and the contract provides for such liability. Accordingly, the application for specific performance is...

Court Disposition

Application for specific performance dismissed; costs order granted against the first respondent.

Orders

  • Prayers 1 and 2 (specific performance) are dismissed.
  • Prayer 4 (costs order) is granted.