Dave Pretorius v Kenneth
Bedwell (659/2020) [2022] ZASCA
The parties were brothers-in-law. Bedwell
owned a property in Oyster Bay in the Eastern Cape. He needed money to complete
a guesthouse project. He sold the Oyster Bay property to Pretorius in exchange
for a loan to complete the project, it being understood that Bedwell would continue
to occupy the property and would remain liable to maintain it at his own cost and
pay rates and taxes. As soon as Bedwell could pay back the loan, Pretorius
would transfer the property back to him.
There was a falling out between the
brothers-in-law and Pretorius sold the property to a third party. Bedwell sued
Pretorius for damages on the basis of the repudiation of the contract. Pretorius
argued that the claim had prescribed. The court had to decide two separate
issues, namely the questions of prescription and repudiation.
Regarding repudiation, the court stated:
It is settled law that repudiation of a
contract occurs where one party to a contract, without lawful grounds,
indicates to the other party, whether by words or conduct, a deliberate and
unequivocal intention to no longer be bound by the contract. Then the innocent
party will be entitled to either: (i) reject the repudiation and claim specific
performance; or (ii) accept the repudiation, cancel the contract and claim
damages. If he or she elects to accept the repudiation, the contract comes to
an end upon the communication of the acceptance of the repudiation to the party
who has repudiated. Only then does a claim for damages arise. Accordingly,
prescription commences to run from that date.
Regarding prescription, the court held that as Bedwell did not accept the repudiation, prescription did not start running from the date of repudiation of the contract.
