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, specically 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 qualier, 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 eect 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 ‘Unjustied enrichment in comparative
perspective’ in M Reimann & R Zimmermann (eds) The Oxford Handbook of
2019 ACTA 59
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60 PRIVATE LAW IN A CHANGING WORLD
on the structure and classication (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, dierent 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 unjustied 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 unjustied enrichment: A perspective on
the competition between contractual and enrichment remedies’ 1992 Acta Juridica
203; and especially D Visser Unjustied 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 condence 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.
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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 eect 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 conrmed that an exception to the doctrine exists: the
so-called repentance principle, which applies specically 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 identied 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
reect modern contractual practice and legal developments around
the world, and whether it should be retained in South African law
in its current form.
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 classicatory way), as opposed to approaches in most of
the rest of the world, which are more ‘unitary’, is generally ascribed to the inuence
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.
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