De Lange v Deeb

• Jurisdiction: South Africa
• Judge: Smit JP and De Wet J
• Judgment Date: 30 October 1969
• Hearing Date: 20 October 1969
• Court: Orange Free State Provincial Division

F Smit, J.P.:

Respondent sued appellant in the magistrate's court for payment of damages suffered by him as a result of appellant's alleged breach of contract. It is common cause that the parties entered into a contract of sale whereby appellant bought a house in Welkom from respondent for the sum of R12,400. He paid a deposit of R100 and undertook to pay the balance in monthly instalments of R100 each. The G appellant failed to maintain regular payments in terms of the contract and fell into arrear. Pursuant to clause 8 of the contract notice was given to appellant requiring him to make payment of the arrears as prescribed but, this notwithstanding, appellant neglected to do so. Respondent accordingly cancelled the contract of sale. He thereafter sold the house for R11,500. On the date of cancellation the position H between the parties in respect of this contract was as follows: appellant owed, in respect of interest, an amount of R1.83 and had redeemed the capital only by the amount of R100 which had been paid as a deposit. Respondent accordingly claimed as damages the difference between the original purchase price to appellant, namely, R12,400, and the purchase price on resale, namely R11,500. That amounted to R900. To this he added the arrear interest of R1.83 and deducted the R100 capital redemption. His claim was consequently for R801.83.

Smit JP

No objection was taken to the claim of R1.83 for arrear interest and judgment was given in favour of respondent, as prayed. Appeal was noted against this judgment mainly on the ground that respondent had failed to A prove the damages alleged to have been suffered by him. After the period of noting had elapsed appellant gave notice that at the hearing of the appeal he would apply for an amendment of his grounds of appeal to include the following two grounds:

'(f)

that the learned magistrate erred in finding and/or accepting that any claim for damages by respondent (plaintiff in the court a quo) is tenable in law in view of the provisions of the Conventional Penalties Act, 15 of 1962.

(g)

B that the learned magistrate erred in not finding that the contract between the parties does not expressly provide for the recovery of damages in lieu of the penalty stipulation provided for in clause 8 of the said contract (which is annexure 'A' to the summons) and/or in not finding that the said clause provides for a penalty stipulation as contemplated by the Conventional Penalties Act, 15 of 1962, and/or that resultantly respondent was not entitled to claim damages.'

C The application for the amendment was not opposed and the merits of these two grounds were also argued on appeal.

Clause 8 of the contract of sale reads as follows:

'Indien die koper versuim om die terme en voorwaardes hiervan stiptelik na te kom, sal die verkoper die reg hê om hierdie ooreenkoms te kanselleer, die eiendom weer in besit te neem, enige gelde wat alreeds...