Cancellation and anticipatory breach of contract

by | Oct 20, 2019 | SALJ, SALJ V134 I3 2017

Cancellation and anticipatory breach of contract

Authors Martin Fischer

ISSN: 1996-2177
Affiliations: Candidate for the Bachelor of Civil Law degree, University of Oxford
Source: South African Law Journal, Volume 134 Issue 3, 2017, p. 543 – 575

Abstract

The decision in Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd is recognised as introducing a ‘new approach’ to repudiation and anticipatory breach of contract in South African law. In terms of this ‘new approach’, in order to determine whether or not a contracting party will be entitled to cancel a contract it must first be determined what breach of contract is predicted and then whether that breach, if it were to arise, would justify cancellation. This raises a number of issues, particularly where a delay is anticipated, and necessitates a reconsideration of the rules on cancellation for breach of contract in South African law. This contribution examines the origin and development of the right to cancel a contract on the basis of a breach in South African law to illustrate these issues. It then proposes a model for breach of contract drawing on Lord Diplock’s judgments in English law to address the uncertainty created by the judgment in Datacolor.

Thomas Kuhn’s Structure of Scientific Revolutions, paradigm shifts, and crises: Analysing recent changes in the approach to contractual interpretation in South African law

by | Oct 20, 2019 | SALJ, SALJ V134 I3 2017

Thomas Kuhn’s Structure of Scientific Revolutions, paradigm shifts, and crises: Analysing recent changes in the approach to contractual interpretation in South African law

Authors Franziska Myburgh

ISSN: 1996-2177
Affiliations: Senior Lecturer in the Department of Private Law, University of Stellenbosch
Source: South African Law Journal, Volume 134 Issue 3, 2017, p. 514 – 542

Abstract

Using Thomas Kuhn’s framework of scientific revolutions, this article considers the current state of contractual interpretation in South African law. Despite the view of some that Natal Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) and Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 (2) SA 494 (SCA) reflect a paradigm shift in interpretation, recent judgments delivered on behalf of the Supreme Court of Appeal suggest otherwise. A similar retreat from Lord Hoffman’s approach in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 is evident in English law. This contribution argues that it is premature to state that a paradigm shift has indeed occurred in the South African approach to contractual interpretation: the imposition of a new approach in the absence of debate about fundamentals circumvents a necessary prerequisite, according to Kuhn, for a true paradigm shift.

Notes: Furnishing security for costs by an incola company – At last some legal certainty, or more confusion? Boost Sports Africa (Pty) Ltd v South African Breweries (Pty) Ltd (SCA)

by | Oct 20, 2019 | SALJ, SALJ V134 I3 2017

Notes: Furnishing security for costs by an incola company – At last some legal certainty, or more confusion? Boost Sports Africa (Pty) Ltd v South African Breweries (Pty) Ltd (SCA)

Authors Thino Bekker

ISSN: 1996-2177
Affiliations: Senior Lecturer, Faculty of Law, University of Pretoria
Source: South African Law Journal, Volume 134 Issue 3, 2017, p. 481 – 497

Abstract

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