South Africa Case Law

Aveng (Africa) Pty Limited v Luqaqambo Civil Construction CC (37058/2018)

Aveng (Africa) Pty Limited v Luqaqambo Civil Construction CC (37058/2018) [2020] ZAGPJHC 358 (28 February 2020)

Court

South Gauteng High Court, Johannesburg

Case number

37058/2018

Judge

de Villiers

The court found that clause 9 of the agreement did not provide for compulsory arbitration, but rather gave the applicant an election to refer the dispute to arbitration at the time proceedings were instituted. The applicant had initially elected to proceed in court and only later sought to refer the matter to arbitration. Section 6 of the Arbitration Act does not apply to a plaintiff seeking a stay of its own action, nor does it apply where the arbitration clause is elective rather than compulsory. The applicant's reliance on section 6 was therefore misplaced. Even if the applicant could seek…

Source excerpt

• Arbitration Clause
• Stay Of Proceedings
• Arbitration Act Section 6
• Contractual Election
• Costs In The Cause

Mthatha Mall (Pty) Ltd v Motion Fitness (Pty) Ltd t/a Motion Fitness and Another (2305/2019)

Mthatha Mall (Pty) Ltd v Motion Fitness (Pty) Ltd t/a Motion Fitness and Another (2305/2019) [2019] ZAECGHC 106 (12 November 2019)

Court

Eastern Cape High Court, Grahamstown

Case number

2305/2019

Judge

J.E Smith

The Eastern Cape High Court refused leave to appeal in a lease and eviction dispute, finding no reasonable prospects of success and awarding costs.

• Eviction
• Lease Agreement
• Arrear Rental
• Disputes Of Fact
• Oral Evidence
• Contractual Election

Hodgkinson v K2011104122 (Pty) Ltd and Another (10019/2013)

Hodgkinson v K2011104122 (Pty) Ltd and Another (10019/2013) [2019] ZAWCHC 22; [2019] 2 All SA 754 (WCC) (5 March 2019)

Court

Western Cape High Court, Cape Town

Case number

10019/2013

Judge

H J De Waal

The court held that the plaintiff, having invoked the lex commissoria in the first notice, was bound by that election and could not subsequently rely on repudiation as a ground for cancellation. The first notice conveyed mixed messages and did not clearly communicate an invitation to repent outside the contractual cancellation procedure. The Full Bench had not finally decided the issue of repudiation, but the plaintiff's attempt to introduce it now was untenable given the prior conduct and pleadings. The claim for post-cancellation damages based on mora was also unsustainable, as the contract…

Source excerpt

• Performance Guarantee
• Repudiation
• Lex Commissoria
• Mora Damages
• Interest Liability
• Contractual Election

Standard Bank of South Africa Ltd v Miracle Mile Investments 67 (Pty) Ltd and Another (187/2015)

Standard Bank of South Africa Ltd v Miracle Mile Investments 67 (Pty) Ltd and Another (187/2015) [2016] ZASCA 91; [2016] 3 All SA 487 (SCA); 2017 (1) SA 185 (SCA) (1 June 2016)

Court

Supreme Court of Appeal

Case number

187/2015

Judges

Leach, Saldulker, Swain, Mbha, Baartman

Prescription in respect of the full outstanding amount under a loan agreement containing an acceleration clause only commences to run when the creditor elects to enforce the clause by giving the required notice. In this case, Standard Bank did not give notice to accelerate the debt, and thus the debt did not become due for the purposes of prescription. The respondents' reliance on cases decided under the previous Prescription Act was misplaced, as the current Act requires the debt to be immediately enforceable before prescription can begin. The procedural requirements in the agreement, specif…

Source excerpt

• Extinctive Prescription
• Acceleration Clause
• Mortgage Bond
• Suretyship Liability
• Contractual Election

Binder v Nedbank Ltd (2011/1010483)

Binder v Nedbank Ltd (2011/1010483) [2013] ZAGPJHC 60 (3 April 2013)

Court

South Gauteng High Court, Johannesburg

Case number

2011/1010483

Judge

Molahlehi

The High Court held that the particulars of claim failed to disclose a cause of action because the plaintiff did not properly plead its contractual election or appraiser-based valuation.

• Pleading Requirements
• Cause Of Action
• Contractual Election
• Repossession Of Goods
• Liquidated Damages
• Pleading-requirements

Howick Retirement Villages (Pty) Ltd v Lafarge Industries South Africa (Pty) Ltd (AR 493/09)

Howick Retirement Villages (Pty) Ltd v Lafarge Industries South Africa (Pty) Ltd (AR 493/09) [2010] ZAKZPHC 7 (11 March 2010)

Court

Kwazulu-Natal High Court, Pietermaritzburg

Case number

AR 493/09

Judges

Swain, Murugasen, Nicholson

The court held that a contractual right to refer a technical dispute to arbitration must be exercised within a reasonable time, and the special plea failed.

• Arbitration Clause Interpretation
• Stay Of Proceedings
• Contractual Election
• Technical Dispute Resolution
• Arbitration-clause-interpretation
• Stay-of-proceedings

Lafarge Industries South Africa (Pty) Ltd v Howick Retirement Villages (Pty) Ltd (2142/2008)

Lafarge Industries South Africa (Pty) Ltd v Howick Retirement Villages (Pty) Ltd (2142/2008) [2009] ZAKZPHC 19 (13 May 2009)

Court

Kwazulu-Natal High Court, Pietermaritzburg

Case number

2142/2008

Judge

Skinner, AJ

The court held that the plaintiff's institution of proceedings did not constitute an election regarding the technical dispute raised in reconvention, as the main claim was not a technical dispute. The claim in reconvention, however, was a technical dispute concerning the quality of the concrete and thus fell within the scope of the arbitration clause. The plaintiff was entitled, upon receipt of the claim in reconvention, to raise a special plea seeking referral to arbitration. The Santam case was distinguished on its facts, as there was no evidence of the plaintiff declining or failing to mak…

Source excerpt

• Arbitration Clause Enforcement
• Stay Of Proceedings
• Technical Dispute Resolution
• Contractual Election
• Reconventional Claim

Merry Hill (Pty) Ltd v Engelbrecht (323/06)

Merry Hill (Pty) Ltd v Engelbrecht (323/06) [2007] ZASCA 60; [2007] SCA 60 (RSA); 2008 (2) SA 544 (SCA) (24 May 2007)

Court

Supreme Court of Appeal

Case number

323/06

Judges

Brand, Cameron, Lewis, Maya, Theron

The Supreme Court of Appeal held that section 19(2)(c) of the Alienation of Land Act does not require the seller to elect a single remedy in the notice of demand. The statutory language permits the seller to indicate alternative steps that may be taken if the purchaser fails to rectify the breach. The court found that the purpose of the provision is to warn the purchaser of the consequences of continued default, not to bind the seller to a specific remedy prematurely. The court further held that substantial compliance with the section is sufficient, provided the purchaser is adequately inform…

Source excerpt

• Alienation Of Land Act
• Statutory Notice Requirements
• Substantial Compliance
• Consumer Protection
• Contractual Election
• Remedies For Breach