Remedies, repentance and the doctrine of election in South African contract law

• Jurisdiction: South Africa
• Citation: 2019 Acta Juridica 59
• Date: 24 December 2019
• Published date: 24 December 2019
• Author: Glover, G.
• Pages: 59-97

59

Remedies, repentance and the doctrine of

election in South African contract law

GRAHAM GLOVER*

One of the main features of South Africa’s law on remedies for breach

of contract is the doctrine of election. In cases where a major breach

has occurred, or a cancellation clause entitles the aggrieved party to

seek cancellation, the aggrieved party has an election either to cancel

or to claim performance, and will be held to that binary choice. In

Primat Construction CC v Nelson Mandela Bay Metropolitan Municipality

the Supreme Court of Appeal recently recognised an exception to the

usual election rule, specically in cases involving repudiation. In terms

of the ‘repentance principle’, a party who experiences repudiation

may initially seek performance in the hope that the breaching party

will repent of their breach; but if it does not, the aggrieved party may

then change its mind and seek cancellation. This essay considers the

history of the doctrine of election and the path to the recognition of

its qualier, the repentance principle. Thereafter, the essay poses the

question whether it remains desirable for the strict doctrine of election

to continue to apply in South African law, bearing in mind that a strict

election can have an unduly constraining eect on the interests of the

non-breaching (or ‘innocent’) party. This analysis is informed by the

broader policy considerations behind the recognition of the repentance

principle; the fact that other analogous exceptions to the election rule

do exist; and the fact that other jurisdictions do not adopt such a strict

approach to the aggrieved party’s choice of remedy.

I INTRODUCTION

Danie Visser’s reputation has been built on two primary pillars. The

rst is his work in modern comparative legal analysis and its value for

South Africa’s mixed legal system.1 The second is his analytical work

* BA LLB PhD (Rhodes); Associate Professor, Faculty of Law, Rhodes University.

1 See D Visser (ed) Essays on the History of Law (1989); R Zimmermann &

D Visser (eds) Southern Cross: Civil Law and Common Law in South Africa (1996);

D Visser (ed) The Limits of the Law of Obligations (1997); R Zimmermann, D Visser

& K Reid (eds) Mixed Systems in Comparative Perspective: Property and Obligations in

Scotland and South Africa (2004); D Visser ‘Unjustied enrichment in comparative

perspective’ in M Reimann & R Zimmermann (eds) The Oxford Handbook of

2019 ACTA 59

© Juta and Company (Pty) Ltd

60 PRIVATE LAW IN A CHANGING WORLD

on the structure and classication (alternatively, the taxonomy or

typology) of the law of obligations.2 As to the rst, he has embraced

the view that while law is innately contextual, there is great value

in accepting that many legal problems are universal, and there are

creative, dierent ways of dealing with such problems if one looks

around and examines how others are tackling them. Despite being

deeply respectful of the historical origins of our legal institutions,3

Danie Visser has not ever been a jurist who is content simply to

accept the old explanation, or the way things have always been

done. As to the second pillar, his nimble and profound analytical

skills mark him out as a latter-day legal Carl Linnaeus, notably in

respect of his contributions to our better understanding of the law

of unjustied enrichment. Taken together, these two contributions

have been greater than the sum of their individual parts: what Danie

Visser’s work and projects over the last 30 years have done is to

challenge an entire generation of private-law scholars, both in South

Africa and beyond, to re-analyse, re-conceptualise, and even to re-

imagine all the cornerstones of pr ivate law in the modern world.4

In this spirit, my contribution will examine critically certain

aspects of the law relating to an aggrieved party’s powers to claim

remedies for breach of contract in South African law. One of the

most familiar features of this power is the so-called doctrine of the

Comparative Law (2006) 970; D Visser & E Reid Private Law and Human Rights:

Bringing Rights Home in Scotland and South Africa (2014); D Visser ‘Civil law for

common lawyers: A teaching experiment at the University of Melbourne’ in

M Carnelley, S Hoctor & A Mukheibir (eds) De Jure Gentium et Civili: Festschrift in

Honour of Eltjo Schrage (2014) 144.

2 See D Visser ‘Daedalus in the Supreme Court–The common law today’ (1986)

49 THRHR 127; D Visser ‘Rethinking unjustied enrichment: A perspective on

the competition between contractual and enrichment remedies’ 1992 Acta Juridica

203; and especially D Visser Unjustied Enric hment (2008).

3 See most notably his doctoral thesis, Die Rol van Dwaling by die Condictio

Indebiti. ’n Regshistoriese Ondersoek met ’n Regsverlykende Ekskursus (DJur thesis,

University of Leiden, 1985); Visser Essays (n 1).

4 Part of his role in this process was to serve as one of the team of editors that

took over the running of the South African Law Journal after Ellison Kahn’s passing.

It was by Danie’s invitation that I became a member of the SALJ’s editorial team

as the note editor in 2008. Little was I to know that in a few short months the

incumbent editors, including Danie, would all resign their commissions for various

reasons (Danie to take up the position of Deputy Vice-Chancellor at UCT),

leaving me carrying the editorial ball. I am grateful to Danie for the condence he

expressed in me as an editor, and which gave me a foot in the door that led to my

taking over the position as managing editor of the SALJ in 2009.

© Juta and Company (Pty) Ltd

REMEDIES, REPENTANCE AND THE DOCTRINE OF ELECTION 61

election of remedies – that an aggrieved party must make a rm

election as to whether it seeks performance or cancellation, and will

be bound by that election. The nature and eect of the doctrine

of election is fully discussed in section II. While the doctr ine of

election is usually understood to be of general application in South

Africa, in the important recent case of Primat Construction CC v

Nelson Mandela Bay Metropolitan Municipality,5 the Supreme Court

of Appeal conrmed that an exception to the doctrine exists: the

so-called repentance principle, which applies specically in cases

involving the repudiation of a contract. In terms of this repentance

principle, an aggrieved party that experiences repudiation, and that

has initially chosen to pursue performance, is entitled to change

its mind and seek cancellation if the performance remedy proves

to be fruitless. The Supreme Court of Appeal’s recognition of this

exception is at rst glance a classical manifestation of the ssured

or fragmented approach to breach of contract and the remedies

that ow from the various forms of breach identied in South

African law.6 I explore the principle of repentance, and its relative

uniqueness, in sections III and IV of the essay. At this point, the essay

becomes bolder. In section V, motivated by the policy considerations

underlying the recognition of the repentance principle, I undertake

a revisionist analysis of the suitability in more general terms of the

doctrine of election of remedies that has applied for over 100 years

in South African law. This wider analysis investigates whether the

strictures of our taken-for-granted doctrine of election desirably

reect modern contractual practice and legal developments around

the world, and whether it should be retained in South African law

in its current form.

5 2017 (5) SA 420 (SCA).

6 The terminology of ‘ssured breach’ is that popularised by A Cockrell ‘Breach

of contract’ in Zimmermann & Visser Southern Cross (n 1) 303. That the South

African approach is marked out for being ssured or fragmented (ie that a breach

must be pigeon-holed in a classicatory way), as opposed to approaches in most of

the rest of the world, which are more ‘unitary’, is generally ascribed to the inuence

of JC de Wet (see JC de Wet & J Yeats Kontraktereg en Handelsreg (1947) 92 and

(to a lesser degree) I van Zijl Steyn Mora Debitoris volgens die Heedendaagse Romeins-

Hollandse Reg (1929)). The implications are described by Cockrell (n 6); E Clive &

D Hutchison ‘Breach of contract’ in Zimmermann, Visser & Reid Mixed Systems

in Comparative Perspective (n 1) 177–9. Tjakie Naudé subjects the distinction to in-

depth analysis in her ‘The typology of breach of contract: JC de Wet’s contribution

in comparative perspective’ in J du Plessis & G Lubbe (eds) A Man of Principle: The

Life and Legacy of JC de Wet (2013) 270.

© Juta and Company (Pty) Ltd