You are on page 1of 11



The core or standard remedies for breach of contract are apparent from some of the case illustrations
of common examples of breach in Chapter 10. Mora debitoris, for example, may lead to cancellation
of the contract, if time was of essence. If one party repudiates the contract, the other may accept the
position and seek monetary compensation for any loss suffered, (damages), or he may insist on
performance of the contract. Specific performance, cancellation and damages are the standard
remedies for breach of contract considered in this chapter. Of these three remedies, damages are
probably the most popular and widely encountered. They are compatible or may be sought together
with the other remedies. Specific performance and cancellation would appear to be mutually
inconsistent. A party cannot seek both remedies. Performance must be regarded as the primary
remedy for breach of contract, conformable with theoretical justification for legal recognition or
enforceability of contracts. Cancellation, on the other hand, must be regarded as a remedy of last
resort, which puts the parties asunder. Also to be considered in this chapter are some of the orders that
may be sought after breach, such as an interdict, restraining one party from persisting with a breach of

Specific Performance


(Appellate Division, South Africa, 29 March 1951)

Under a registered notarial deed of servitude, the appellant’s property was entitled to the release of
water from the respondent’s dam in quantities of up to 250 000 gallons per day. In 1949, in the midst
of an unprecedented drought, the respondent reduced the flow of water to between 1500 and 2000
gallons per day. After failure of negotiations about the matter, the appellant initiated action in a
divisional court seeking specific performance of his rights. The respondents contended inter alia that
the drought, an Act of God had rendered performance of contract impossible. The Divisional Court
rejected this contention, but it held that to order specific performance in the circumstances would bear
hardly on the Council, and the inhabitants of the town, who would be provided with a meagre quantity
of water. It held that the Court has discretion in deciding whether to order specific performance, and
this was a relevant consideration in the exercise of that discretion. The decree of specific performance
was withheld, and the appellant left to seek damages for any loss that he might have suffered. The
Appellate Division dismissed the appellant’s appeal.
[378] … Mr. Miller , for the appellant, contended that it was settled law in South Africa that a
plaintiff had a right to claim specific performance of a contract where the defendant is able to
perform, and that, although the Court may in certain types of cases refuse to grant such an order it
does not enjoy the same powers of discretion as in English Law. According to Mr. Miller further, the
Court a quo refused the appellant the relief claimed because it was influenced in the main by the
consideration that a decree of specific performance would bear hardly on the respondent, and that this
consideration was not a sufficient ground on which to exercise its discretion in favour of the
respondent: and that the instant case was not one of the type in which the Court should refuse specific
It is correct, as Mr. Miller states, that in our law a plaintiff has the right of election whether to
hold a defendant to his contract and claim performance by him of precisely what he had bound
himself to do, or to claim damages for the breach. (Cohen v Shires, McHattie and King , 1882 Kotze's
Reports, p. 41.) This right of choice a defendant does not enjoy; he cannot claim to be allowed to pay
damages instead of having an order for specific performance entered against him. (Farmers' Cooperative Society v Berry , 1912 A.D 343 at p. 350.)
It is, however, equally settled law with us that although the Court will as far as possible give
effect to a plaintiff's choice to claim specific performance it has a discretion in a fitting case to refuse

may be mentioned: (a) where damages would adequately compensate the plaintiff. (d) where specific performance entails the rendering of services of a personal nature. Miller . More generally. and therefore it would be a waste of time to attempt to limit the principles or the exceptions which the complicated transactions of the parties and the ever-changing habits of society may at different times and under different circumstances require the Court to recognise or consider. secs. specific performance will be refused where it would be ‘inequitable in all the circumstances’ (Wessels Contract . sec. . ( story. In a recent case in this Court SCHREINER. 298 at p. (c) where the thing claimed can readily be bought anywhere. according to the circumstances of each particular case. or would be inequitable under all the circumstances. sec.424. The matter is so well put by Story ( Equity Jurisprudence . but it is a matter of discretion in the court: not indeed of arbitrary or capricious discretion dependent upon the mere pleasure of the Judge. 5th ed. Fry Specific Performance . it is an ordinary remedy to which in a proper case the plaintiff is entitled. Each case must be judged in the light of its own circumstances. when these rules and principles will not furnish any exact measure of justice between the parties. 3119. Society v Berry . (b) where it would be difficult for the Court to enforce its decree. As examples of the grounds on which the Courts have exercised their discretion in refusing to order specific performance. op. 1951 (1) SA 791 at p. 1 B decree specific performance and leave the plaintiff to claim and prove his id quod interest. 301).. nor is it circumscribed by rigid rules. But the Court has a discretion whether to grant the order or not ( Farmers' Co-op. submitted that in any case where the hardship is relied upon the matter must be judged at the time when the contract was entered into and . To these may be added examples given by Wessels on Contract (vol 2. too. sec. 750 ( a). dealing with the question of the Court's discretion where specific performance is claimed expressed himself as follows: “In our law a grant of specific performance does not rest upon any special jurisdiction. (e) where it would operate unreasonably hardly on the defendant. Mackeurtan Sale 3rd ed.)” See Rex v Milne and Erleigh (7). So in contracts for the sale of shares which are daily dealt in on the market and can be obtained without difficulty specific performance will not ordinarily be granted (Thompson v Pullinger. [379] or where the decree would produce injustice. ‘or where from a change of circumstances or otherwise it would be unconscientious’ to enforce the contract specifically. The most that can be done is to bring under review some of the leading principles and exceptions which the past times have furnished as guides to direct and aid our future inquiries. 3119) of good and sufficient grounds for refusing the decree. sec. but of that sound and reasonable discretion which governs itself as far as it may by general rules and principles. although performance was not impossible. Story Equity Jurisprudence . pp. On this account it is not possible to lay down any rules and principles which are of absolute obligation and authority in all cases.” On the Court's discretion to refuse specific performance because the decree would bear hardly on the respondent Mr. 873.R. quoting Lawson. in addition to contending that hardship or embarrassement alone to a defendant was not a sufficient ground for refusing the decree. sec. 350). 742) that I give the whole paragraph: “'In truth the exercise of this whole branch of Equity Jurisprudence respecting the rescission and specific performance of contracts is not a matter of right in either party. but which at the same time withholds or grants relief. see. The discretion which a Court enjoys although it must be exercised judicially is not confined to specific types of cases. 1912 AD 343 at p. 422 . J. cit... 769). or where the agreement giving rise to the claim is unreasonable. 386/7.A.

Nor can I see any logical reason why the time when performance is claimed should not be the time when the judge ex aequo etbono should consider the result of such an order and the alternative remedy open to the plaintiff. There is no authority.A. but in positive danger to the health of the community and might have disrupted the life of the town. p. J. On the other hand.A. [381] I have found no case in our Courts where it is even suggested that the time when the contract was entered into is the crucial time to take into consideration in determining whether specific performance should be decreed or not. the respondent missed a dividend of 15 cents per share.422). I come to the conclusion. Miller relied on Fry (Specific Performance..” There can to my mind be no doubt that in the present case to have ordered the respondent to release 250. J. and HOEXTER. The respondent also claimed damages in the amount of R9 540.. 6th ed.. . 13th ed. The appellant contended that respondent could have purchased 63 600 ordinary shares in McCarthy Group Ltd on the stock market without difficulty.. alleging that as a result of the failure to deliver the shares by 22 October 1982. As far as the inhabitants. as far as I know. … [380] … If the contract turns out to be less beneficial only than the defaulting party anticipated there could be no serious quarrel with Fry's statement. were concerned. there is no indication on the papers that the appellant suffered any damage. The Court rejected this . [2] BENSON v SA MUTUAL LIFE ASSURANCE SOCIETY 1986 (1) SA 776 (Appellate Division.000 gallons of water a day from their storage dam while the unprecedented drought continued and the water in the dam had sunk dangerously low would have worked very great hardship not only to the respondent but to the citizens of Kingwilliamstown to whom the respondent owed a public duty to render an adequate supply of water. is in accordance with our law. The respondent applied to court for an order to compel appellant to deliver the remaining shares. … The appeal is dismissed with costs. 65 he says: “Upon grounds still stronger Courts of Equity will not proceed to decree specific performance where the contract is founded in fraud. 29 November 1985) On 17 August 1982 the respondent purchased from the appellant 171 500 shares in the McCarthy Group Ltd at a price of 210 cents per share. therefore. as pointed out above. VAN DEN HEEVER.J. and had he done so he would have qualified for the missed dividend. but where the cost to the defendant in being compelled to perform is out of all proportion to the corresponding benefit to the plaintiff and the latter can equally well be compensated by an award of damages I cannot agree that the statement in Fry that the time at which the contract is concluded is decisive of the matter. in our law for the principle enunciated by Fry . J. secs. SCHREINER.” CENTLIVRES. C.A. imposition . concurred. In my judgment the matter may also be judged of at the time performance is claimed. The appellant delivered to the respondent 107 900 of the shares. 750 (a) ... that no ground has been shown to justify us in interfering with the discretion exercised by the Court a quo. . South Africa. does not mention such a principle. the order would not only have resulted in great hardship. … There is no point in investigating the law of England on the subject any further. For this proposition Mr. In sec.not at the time when performance was claimed. but had failed to deliver the remaining 63 600. or where from a change of circumstances or otherwise it would be unconscientious to enforce it. Story in his Equity Jurisprudence .. 418 . who already suffered under severe water restrictions.

and that the Courts will as far as possible give effect to his election. It is settled law that the grant or refusal of such an order is entirely a matter for the discretion of the Court in which the claim is made. I doubt. J. adopting the approach to which I have just referred. Commissioner for Inland Revenue v Da Costa 1985 (3) SA 768 (A) at 775. At the outset there are three preliminary observations that I wish to make. the only remaining question on this part of the case seems to be whether the learned trial Judge has been shown to have exercised his discretion to order delivery of the shares in an unjudicial manner in the sense explained in the Neethling case supra. in my view.) That. Some of them derive from what I shall later refer to as the English rules relating to specific performance. Thus. ( Haynes v King William’s Town Municipality 1951 (2) SA 371 (A) at 378. The second observation is that none of the trial Court’s factual findings were challenged in this Court. McHattie and King ( supra )) and subsequently reaffirmed in a host of cases (see eg Thompson v Pullinger (1894) 1 OR 298 at 301. The appeal accordingly has to be decided on the basis that the respondent’s right to the delivery of the 63 600 shares which were not delivered. Madnitsky v Rosenberg 1949 (2) SA 392 (A) at 398. and (2) that respondent should in any event have mitigated (and possibly averted) the loss of the dividend by buying shares elsewhere once it became apparent that delivery of all the shares purchased from the appellant would not be forthcoming. however. I shall first deal with the argument relating to specific performance. that it has not brought its unbiased judgment to bear on the question or has not acted for substantial reasons”.: [781] “… In this Court the argument for the appellant generally followed the lines of the alternative plea to the effect (1) that specific performance by the appellant of his obligations in terms of the agreement of sale should not have been decreed. In Ex parte Neethling and Others 1951 (4) SA 331 (A) at 335 GREENBERG JA indicated that the question in such a case is whether: “the Court a quo has exercised its discretion capriciously or upon a wrong principle. Woods v Walters 1921 AD 303 at 309. Others were abandoned at the hearing of the appeal and with them I shall not deal at all. is the approach which is to be adopted in the instant case. was established. The Appellate Division confirmed the decision of the Divisional Court HEFER.contention. This leads to the third observation which relates generally to the nature of the discretion in question and to the way in which it is to be exercised…. whether that is what was intended. Shill v Milner 1937 AD 101 at 109. and continued:] The statement that the discretion is not circumscribed by rigid rules requires some elucidation. It ordered the appellant to deliver the shares and awarded the respondent the damages claimed. Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd 1982 (1) SA 398 (A) I at 440 .1. One of these unchallenged findings was that the appellant had agreed to deliver all the shares within a reasonable time.A. [The Court then referred to the statement by DE VILLIERS AJA in Haynes v King William’s Town Municipality (supra at 378) reproduced above.) It is an equally well-settled principle that the power to interfere on appeal in matters of discretion is strictly circumscribed. I shall not deal with all the grounds which were advanced in the written heads of argument for the submission that specific performance should not have been ordered. In doing so. [782] (See too R v Zackey 1945 AD 505 at 510. BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 . that is in effect what Story Equity Jurisprudence says in the passage which the learned Judge of Appeal cited with approval at 379 of the report. The first relates to the general approach in an appeal in which the Court of appeal is asked to interfere with the grant of a decree of specific performance. That a right to specific performance exists was decided as long ago as 1882 (in Cohen v Shires. Farmers' Cooperative Society (Reg) v Berry 1912 AD 343 at 350. They may conveniently be dealt with collectively. particularly after it was accepted that a plaintiff has the right to elect whether to demand performance or to sue for damages. 511. The use of the word “rigid” may be taken to imply that there are indeed rules regulating the exercise of the discretion but that they are not inflexible.

the respondent. It remains. This does not mean that the discretion is in all respects completely unfettered. Here a distinction must be drawn between the case where impossibility extinguishes the obligation and the case where performance is impossible but the debtor is still contractually bound. I suppose.” It is immediately apparent that all three propositions are in effect rules (indeed well-known rules in English law) by which the Court’s discretion. to mention only a few). a judicial discretion and from its very nature arises the requirement that it is not to be exercised capriciously.and the basic principle thus is that the order which the Court makes should not produce an unjust result which will be the case. apart from the rule just referred to. and see too in this connection Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd ( supra at 441 . if ordinary goods or chattels are sold as may be bought anywhere. both logically and as a matter of principle. I am prepared to assume that they could have been obtained without difficulty and to deal with the argument on that basis. and thus the respondent’s clearly established . Another principle is that the remedy of specific performance should always be granted or withheld in accordance with legal and public policy (cf De Wet and Yeats Kontraktereg en Handelsreg 4th ed at 189). Three propositions were advanced in support of the main contention. although the evidence seems to point the other way. This right is the cornerstone of our law relating to specific performance. for in the former the creditor clearly has no legal remedy at all.. nor upon a wrong principle (Ex parte Neethling ( supra at 335)). Furthermore. His main contention was that the trial Court should have exercised its discretion against granting specific performance because ordinary shares in the company were readily available in the market at the relevant time. the Court will not order specific performance”. viz that: [784] “.3).. whether it be flexible or inflexible. in the particular circumstances. once it became apparent that the remaining 63 600 shares would not be forthcoming from the appellant. The third proposition was based on the decision in Thompson v Pullinger ( supra ) and on a remark in the minority judgment of SCHREINER JA in R v Milne and Erleigh (7) 1951 (1) SA 791 (A) at 873 which reads as follows: “. in contracts for the sale of shares which are daily dealt in on the market and can be obtained without difficulty. subject only to the qualification that the Court has a discretion to grant or to refuse an order for performance. could have bought shares elsewhere and could have sued the appellant for such damages as it may have suffered as a result of the purchase. it seems clear. With these preliminary remarks in mind I now proceed to deal with the argument presented to us by appellant’s counsel. on the nature and extent of the rule. The first one was based on a statement in Wessels Law of Contract in South Africa 2nd ed para 3136 to the effect that specific performance will not be granted where an award of damages will adequately compensate the plaintiff. of course.for cases do arise where justice demands that a plaintiff be denied his right to performance .(1) SA 391 (A) at 433. no rules can be prescribed to regulate the exercise of the Court's C discretion. (See De Wet and Yeats ( op cit at 189 n 61 and the cases there cited). The second one was based on what Wessels says in para 3137. There is no finding in the judgment of the Court a quo as to the availability of the shares at the relevant time but. Once that is realised. which does not affect the plaintiff's right in some way or another. apart from the rule that the discretion is to be exercised judicially upon a consideration of all relevant facts. Practically speaking it follows that. The degree to which it is affected depends. the order will operate unduly harshly on the defendant. specific performance will not ordinarily be granted ( Thompson v Pullinger 1 OR 298 at 301). theoretically. if. It is aimed at preventing an injustice . that any curtailment of the Court's discretion [783] inevitably entails an erosion of the plaintiff's right to performance and that there can be no rule. there may be a rule which regulates the exercise of the discretion without actually curtailing it but. it is difficult to conceive of one. after all. the Court will not decree specific performance where performance has become impossible. as to the way in which the discretion is to be exercised... eg. It is only the latter type of case that is relevant in the present context.

With respect to transactions in the public funds. It would thus appear that even in the Court of Chancery the emphasis fell on damages and that an order for specific performance was the exception rather than the rule. as a rule. The second one is equally foreign to our law and inconsistent with a plaintiff’s right to performance. where the defendant is in a position to do so. he knows that a claim for its delivery will be refused. because the payment of compensation. Some of our textbook writers. There is neither need nor reason for this process to continue. and his right of election to hold the seller to his contract and to demand performance or to claim damages is rendered completely nugatory (De Wet and Yeats ( op cit at 190)). It simply means that a purchaser of an article which is readily available anywhere has no right to demand its delivery from the seller. from which many of the others derived. was that specific performance would not be granted where the plaintiff could be compensated adequately by damages. there could have been no objection. calculated by the difference between the purchase price of the shares and that at which they can be obtained at the time when the defendant is placed in mora. they are to be rejected. rules deriving purely from Chancery practice were applied in South Africa not only in Thompson v Pullinger but in a number of other cases.) Despite this distinctly different approach. after reviewing some of the Roman-Dutch authorities and coming to the conclusion that "the right of a plaintiff to specific performance of a contract. proceeded to say (at 301): “But it is said that in a contract of purchase and sale of shares which are daily dealt in on the market. Odgers The Common Law of England vol 2 at 1156. is beyond doubt". this is the case. nor where. and is a complete negation of a plaintiff's right to select his remedy (cf Swartz & Son (Pty) Ltd v Wolmaransstad Town Council 1960 (2) SA 1 (T) at 3). In that case KOTZÉ CJ. but not with respect to shares which cannot easily be obtained. That is not the position in England. For this reason alone none of these propositions can be accepted. the rule ought not to be applied. . (2 Story Eq 717a . (Cf Wessels ( op cit paras 3113 . although it is by no means uncommon for the Courts to explore other comparable systems of law in cases where the RomanDutch authorities are silent upon a particular point. his only remedy is a claim for damages (cf Benjamin Sale of Goods 2nd ed para 1447.right to performance. particularly the older ones. I have already dealt fairly extensively with a plaintiff's right according to South African law to demand performance and referred to the fact that the Courts will as far as possible give effect to that right. and although there can be no objection to such an excursion if its purpose is to seek guidance and no more. I shall proceed. Now. (Snell Principles of Equity C 27th ed at 573. (Cf Baragwanath v Olifants Asbestos Co Ltd 1951 (3) SA 222 (T) at 228. owing to some circumstance or the other. But they are not. however. he has no option but to sue for damages. SCHREINER JA based his remark on Thompson v Pullinger ( supra ). Specific performance is a form of equitable relief which could originally only be obtained in the Court of Chancery in accordance with well-defined rules. no specific performance is decreed. For the sake of convenience I shall do so by dealing specifically with the third proposition. English law became the source of its practical application. Had the two systems of law been compatible on the subject on which they [785] thus became married. Take the first one for instance.) The most important rule. naturally followed suit. to demonstrate why. for a more fundamental reason. is a full and satisfactory compensation. whereas the substance of the law relating to the specific performance of contracts was sought and discovered in the Roman-Dutch authorities. 3 Parsons On Contract part 2 division 2 s 3.)” As is to be expected. there is nothing in the writings on Roman-Dutch law about the enforcement by a purchaser of an agreement for the sale of shares. Fry Specific Performance of Contracts 5th ed paras 7 and 11). the reference in Thompson's case to English law on the subject of specific performance was particularly unfortunate.3138)) and so it came about that English cases came to be followed somewhat indiscriminately without noticeable regard to the fundamentally different approach which the Courts in England adopt when it comes to the exercise of the discretion to order performance. is sought to be circumscribed. Its result was that. At common law a plaintiff has no right to demand performance. a rule like the one contended for unduly limits the Court's discretion. and shares in companies which can daily be obtained on the market without difficulty.

On 19 November 2002 the applicant and the first respondent entered into a written agreement in terms of which the applicant would transfer his shares in the company to the first respondent. See SA Cooling Services (Pty) Ltd v Church Council of the Full Gospel Tabernacle 1955 (3) SA 541 (N). Panandamatenga. Reverting then to the facts of the instant case.This does obviously not imply that there is to be no reference on the subject to English law or to some other system of law or that factors which other Courts have considered to be obstacles or possible obstacles in the way of granting an order for specific performance now cease to be pertinent. QO 38.. the plaintiff must nevertheless aver its readiness and willingness to carry out its obligations under the contract and tender to do so’. concurred.. GALGUT. and he would in turn become the sole proprietor of the farm. The respondents did not file any opposition to the application. 18 August 2004) The applicant and the first respondent were co-shareholders in a company cited as the second respondent. At p 544 it is stated: ‘.. The Court granted the application..J. The applicant transferred his shares in the company. On the contrary.. J.A. … [786] . There is no indication that in making that finding the Court did not exercise its discretion judicially. The company held an interest in Farm No. GAONGALELWE J: [214] “…In law it is elementary that a party to a contract which has been repudiated by the other party may seek specific performance and that in seeking such he must allege and prove that he has performed or tendered performance of his own obligations under the same contract. Botswana. and CILLIÉ. J.J. but the first respondent refused to transfer the farm after the title deed had been made available.A. It follows that this Court will not interfere with the order for the delivery of the shares. In instituting action the innocent party must aver this in its declaration or founding affidavit. holding that the applicant was entitled to specific performance.A. and found them insufficient reason to deny the respondent specific performance. A.. The applicant had a 30 per cent share in the company. It was envisaged that title to the farm would be transferred after the National Development Bank had released the title deed. A.. the trial Court considered the fact that the shares were readily available in the market and the fact that the respondent could have been adequately compensated by the damages.” CORBETT. KOTZÉ. The essence of the principle is that an innocent party cannot hold the defaulting party to the contract and demand specific performance unless such innocent party demonstrates that he is willing and able to perform its part of the same contract. The applicant then applied to court for an order that the respondents effect transfer of the farm. [3] POTGIETER v VAN DYK AND ANOTHER [2004] 2 BLR 213 (High Court.A. The appeal is dismissed with costs. which will include the costs occasioned by the employment of two counsel. . they remain relevant factors which are to be considered on the same basis as any other relevant fact is to be considered. … [215] … On the strength of the … analysis [of the applicant’s founding affidavit] the conclusion I come to in respect of this particular point is that the applicant has sufficiently made averments which demonstrate that he is willing and ready to perform his side of the contract if he has not done so already. Francistown.

1 February 1972) The appellant was employed by the Gaborone Town Council as a Headmaster at Lesedi Primary School in Gaborone. where he was to serve as an assistant teacher. It has further been held that this right of election the defendant or the defaulting party does not enjoy. 3. to anticipate in his declaration the possible grounds which a defendant may advance to induce the Court to exercise its discretion against the grant of specific performance. and the appellant transferred to another school. Botswana. He was required to immediately the house he was occupying by virtue of his position as headmaster. the interdiction was lifted. The court however is not bound to grant specific performance even in a case where the innocent party has established its case. In March. However in a case such as this one where the applicant has made sufficient averments proving repudiation by the first respondent and has demonstrated his willingness to perform his own obligations under the contract it is generally recognized that for the court to exercise its discretion against the award of specific performance the respondent as the repudiating party must first prove facts from it which may be inferred that his failure to perform was justified. See Myers v Abrahamson 1952 (3) SA 121 (C) at p 123. GABORONE TOWN COUNCIL [1972] 1 BLR 33 (Court of Appeal. 2. See Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd 1982 (1) SA 398 (A) at p 442H to 443 Miller JA stated ‘It is generally not for a plaintiff to anticipate in his declaration the possible defences a defendant might raise. Application granted. the grant or refusal of which is in the final result in the discretion of the Court. In February 1971. pending an enquiry as to the possibility of disciplinary proceedings. however.’ There being no grounds advanced by any of the respondents I cannot speculate as to why they are unwilling to perform as per the agreement. I therefore make the following order: 1. the Council resolved to dismiss him for alleged misconduct. That the purported repudiation of the agreement by the first and second respondents is wrongful and unlawful and that the agreement is binding on the parties. When he queried the procedure and manner of his transfer and interdiction. The respondents shall bear the costs of this application jointly and severally one paying the other to be absolved. The first respondent as managing director of the second respondent is hereby directed to sign all the necessary documents to give effect to the agreement and in particular to facilitate transfer of Farm QO 38 to the applicant. 4.Where an innocent party is ready and willing to perform while the other is in default such injured party has the right to elect to either accept the [216] repudiation or to ignore the repudiation and hold the other to the contract and claims specific performance. He was offered a month’s salary in lieu of notice on the salary scale of an assistant teacher. Lobatse.” [4] GABAAKE v. after convening a parents’ meeting in a manner not approved of by the Council. And still less is it incumbent on a plaintiff who claims specific performance. He . In conclusion I find that the applicant has provided sufficient material to persuade the court to grant the relief of specific performance as claimed. The court has a discretion in an appropriate case to refuse to order specific performance and leave the innocent party to claim damages. the appellant was interdicted. Should the first respondent fail to sign such documents the deputy sheriff of this court is hereby authorized to sign those documents to facilitate transfer of Farm QO 38 to the applicant. See Haynes v Kingwilliamstown Municipality 1951 (2) SA 371 (A) at p 378.

it is plain that no power is committed under the Botswana Teaching Law to an employer to demote a Headmaster to the status of an assistant teacher. It appears to me to be quite clear that there was no effective termination of the Appellant's appointment by the Respondent. although the Respondent refers to a Headmaster as having the same salary as an assistant teacher plus an "allowance" as Headmaster. the resolutions of 17th March. 203. the Headmaster of Lesedi School. in law and in fact. “the applicant’s only remedy was an action for damages and he would not be entitled to an order that he be reinstated. We find it unnecessary to express any final opinion as regards this latter submission. British South Africa Company. Among the grounds relied upon by the Appellant is one in which the contention is made that the purported transfer of the Appellant to a lesser status was an alteration of the Appellant’s grade as a teacher within the meaning of Section 12. MILNE. inter alia.D. The penalties which may be imposed for misconduct. whilst it is not necessary to go as far as that. If. Now it is true that Regulation 13 provides that a teacher is liable to be transferred at any time to any school managed by his employers. 1971. as has been shown. and may be imposed only by the Chief Education Officer. and that they were not complied with. and there is no manner of doubt that the salary of the Appellant as an assistant master would have been less than his salary as Headmaster. an addition to his salary as such. See Stoop v. The High Court held the appellant’s employment was properly terminated under section 14 of the Teachers Employment Act. instead of his salary as Headmaster. it is nevertheless a nullity if this purports to be effected in a manner or by someone not authorised. an employer cannot transfer a Headmaster to another school managed by it if the transfer involves a removal from the status of Headmaster to a lower status. that there exists no basis for saying that the provisions of . makes the purported termination of the Appellant's appointment under section 14 (b) a nullity. The first is whether the Respondent effectively terminated the Appellant’s employment. Lichtenberg Town Council. As the termination of his employment was a nullity. or for [40] inefficiency within the meaning of section 22. that. was the lesser salary of an assistant teacher.: [39] “… The Appellant appeals upon a number of grounds. that the provisions of section 13 are not merely directory but are peremptory. but. because of the view which we take of the effect of sections 13 and 14 of the Statute. … As the transfer and its accompanying demotion of the Appellant were beyond the powers of the Respondent. that a removal of this kind could amount to a dismissal from the service. in itself. This is of considerable importance for. as his rights were governed by the Teaching Service Law and the relative regulations. the Court of Appeal held that the termination of the appellant’s employment was a nullity. as it did not comply with section 14 (b) of the Teachers Employment Act.A. authorised the payment to the Appellant of an assistant teacher’s salary in lieu of notice. I come now to deal with two final matters. resolved to pay the Appellant. the Appellant continued to be the Headmaster of the Lesedi School. The provisions of the subsection are drastic and it is clear. as fairly extensively defined in section 19. at p. 1971. in truth. an action for damages was not his only remedy. But even if his interdiction and subsequent transfer on demotion would have been unlawful. 1952 (2) SA 72 (T). and Pett's case (supra) at p. in my view. Even where the demotion is not accompanied by a diminution of salary. 1971. It is necessary to say at this point that. the purported transfer of the Appellant to the post and corresponding salary of an assistant teacher was beyond the Council's powers. as expanded and expounded. It is explicitly referred to as such in Part III of the Second Schedule annexed to the regulations. with the consequence that at all material times prior to the Council’s meeting of 17th March. this "allowance" is not properly so described and is. On appeal. It was suggested by Lord de Villiers in Pett v. are set out in section 23. 1911 A. least of all when the demotion involves a diminution in his salary. in fact. In the first place. the month’s salary in lieu of notice which the Respondent on 17th March. but. they were a nullity. J. This. the burden of which. clearly. It also held that the appellant’s remedy was not only an action for damages. it was a nullity and he remained. 20. is to claim. he still was employed as Headmaster of Lesedi Primary School. It claims that it did terminate his employment under and by virtue of the provisions of Section 14 (b) of the Statute.applied to the High Court for a review on the ground that the termination of employment was inconsistent with the Botswana Teaching Service Law.

accordingly. at the time the payment was given to him in lieu of notice. Schierhout’s case indeed suggested that such an order could not be made against the Crown. Clearly. unless the Court in the unfettered exercise of its discretion decides otherwise. the case was not analogous to or comparable with the case of Schierhout v. and MAISELS. P. The case of Ngwenya v. It is hereby declared that the Applicant is still lawfully employed by the Respondent as Headmaster of Lesedi Primary School. on 17th March. 109). it was common cause in that case (see p. J. Here. which purported to operate on 18th March. we hold that the purported termination of the Appellant’s appointment is a nullity and must be regarded as never having been effected. the Appellant's conditions of service are governed by the Botswana Teaching Service Law. particularly if it entailed compelling parties who cannot work together to do so. Even if the Appellant had been. but it authorised salary (as assistant teacher) to be paid from 18th March to 16th April. Not only did the Council not authorise the payment of salary in lieu of notice at the rate to which the Appellant was entitled as Headmaster. The appeal is allowed with costs. it is clear that the provisions of section 14 (b) were not complied with and. 1965 (1) SA 692 (W). … The only remaining question is whether or not the learned Judge was correct in holding that the Appellant's only remedy. and by that Law it is. concurred. Natalspruit Bantu School Board. a month would only expire on 17th April. It is more consistent with the clarification in Benson’s case that specific performance should under South African law be regarded as the plaintiff’s primary remedy. To give him something afterwards to make up a full month's salary obviously could not operate retrospectively for the giving of a month's salary in lieu of notice. is an action for damages. but it is unnecessary to express any opinion upon submission. to be given a full month's salary.A. means a calendar month. by virtue of section 3 of the Interpretation and General Clauses Law. No. 2. 13 of 1966. To operate as a valid termination. and the judgment of the Court below is altered to read as follows: 1.section 13 are otherwise than peremptory. NOTE The High Court decision in this case reflected the hesitancy of the courts under English common law to order specific performance in employment matters. The Respondent is ordered to pay the Applicant's costs. but for some reason which is rather obscure to me.” SCHREINER. if his appointment was terminated unlawfully. was relied upon by the Respondent. to be awarded if sought. As was held in the analogous circumstances of Schierhout's case. Minister of Justice. and thus the Respondent authorised the payment to the Appellant of actually less than a month's salary. the giving of a month’s salary within the meaning of section 14 (b) means the giving of a month’s salary calculated from the first day of one of the twelve months of the calendar. within the meaning of the sub-section. although the relative regulations were made under an Act of Parliament. That section clearly provides (subject to the provisions of Part VI) that there shall be no termination of a teacher’s appointment unless the provisions of section 14 have been complied with.D 99. operating from the commencement of the period. only an assistant teacher. . If one includes the 18th March. Kirby [41] for the Appellant contended that as a month. I have no manner of doubt that the present case is wholly analogous to Schierhout’s case. that there never was a valid termination of the Appellant's appointment. 696 E-F) that. Mr. the whole of the month's salary has to be given in advance. and it follows that if they are not complied with there can be no valid termination of an appointment under the section. 1926 A. as I have indicated. These statutory provisions are no less peremptory than those which were the subject of Schierhout’s case were held to be (see p. the Appellant had. The Court of Appeal decision appears not to be constrained by the approach or position under English common law. peremptorily provided that (subject to Part VI which deals with disciplinary measures) the appointment of a teacher shall not be terminated unless the provisions of section 14 (b) are complied with.