Sonia (Pty) Ltd v Wheeler

• Jurisdiction: South Africa
• Judge: Fagan CJ, De Beer JA, Malan JA, Reynolds AJA and Price AJA
• Judgment Date: 05 December 1957
• Hearing Date: 26 November 1957
• Court: Appellate Division

Price, A.J.A.:

The appellant (the defendant in the Court a quo to whom I shall refer as the defendant) was sued in the Eastern Districts Court by the respondent (the plaintiff in the Court a quo, hereinafter called the plaintiff) in an action based on the following allegations:

The plaintiff is domiciled and resides in the Orange Free State. The defendant is domiciled and carries on business in the Transvaal.

D On the 2nd February, 1955, and at Kroonstad, the defendant sold to the plaintiff a piece of ground situate in East London (which is within the territorial jurisdiction of the Court a quo) for £230, which amount together with interest has been fully paid.

E The written agreement, which was part of the declaration, indicates that the payments of the purchase price were to be made in Johannesburg. It is then alleged that the contract was induced by the false and fraudulent misrepresentations of the defendant's agents acting within F the scope of their authority. The said representations were made at Kroonstad in the Orange Free State. The plaintiff claims -

1.

Cancellation of the contract.

2.

Refund of the purchase price and interest paid amounting to £244 10s. 7d.

3.

Costs of suit.

G The defendant excepted to the declaration on the ground that ex facie the plaintiff's declaration the Court has no jurisdiction to hear the plaintiff's claims. The learned JUDGE-PRESIDENT of the Court a quo held that he had jurisdiction to hear and adjudicate on all the claims.

The mere fact that the Transvaal Court may have jurisdiction as it is the domicile of the defendant and that the Court of the Orange Free H State may have jurisdiction, as that is where the contract was entered into (see Einwald v The German West African Co., 5 S.C. 86 at p. 91, and Rood's Trustees v Scott and de Villiers, 1910 T.P.D. 47 at p. 61), has nothing to do with the enquiry, which is whether the Eastern Districts Court has jurisdiction. In giving judgment the learned JUDGE-PRESIDENT referred to the case of Lebedina v Schechter and Haskell, 1931 W.L.D. 247, in which GREENBERG, J., said that it was

Price AJA

neither necessary nor usual for a party to ask the Court for an order of cancellation of a contract. Such a person could and usually did cancel or repudiate the contract by his own act, and if litigation ensued then the Court could be asked to declare that the cancellation was effective. The learned Judge a quo says that this was not the usual position while A he was a Judge in the Transvaal, that it was then usual for the aggrieved party to ask the Court to declare the contract cancelled. Whatever the position may be or may have been in this regard, the real question is whether a person who thinks he is entitled to repudiate a contract has a right to approach the Court for such an order, and there cannot be the slightest doubt that he has such a right. Paras. 1149 and B 1151 of Wessels on Contract are quoted in the judgment of the Court a quo, and in those paragraphs it is pointed out that the aggrieved party may in every case bring an action for cancellation of a contract, and it is emphasised that if such action is not brought and if an extra-judicial cancellation is relied upon, third parties may acquire rights which may bar a rescission, or make it very difficult.

C Many circumstances can be imagined which may render an action for cancellation necessary, or at least highly desirable. There may be a sale of land with buildings thereon. If the buildings are not looked after they may deteriorate rapidly. After an extra-judicial repudiation D it may be unsafe for the buyer to do nothing to maintain the...