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11.

REMEDIES AND CONSEQUENCES OF BREACH

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
contract.
11.1

Specific Performance

[1]

HAYNES v KINGWILLIAMSTOWN MUNICIPALITY 1951 (2) SA 371


(Appellate Division, South Africa, 29 March 1951)

Under a registered notarial deed of servitude, the appellants property was entitled to the release of
water from the respondents 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 appellants appeal.
DE VILLIERS, A.J.A.:
[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
performance.
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

to decree specific performance and leave the plaintiff to claim and prove his id quod interest. The
discretion which a Court enjoys although it must be exercised judicially is not confined to specific
types of cases, nor is it circumscribed by rigid rules. Each case must be judged in the light of its own
circumstances.
As examples of the grounds on which the Courts have exercised their discretion in refusing to
order specific performance, although performance was not impossible, may be mentioned: (a) where
damages would adequately compensate the plaintiff; (b) where it would be difficult for the Court to
enforce its decree; (c) where the thing claimed can readily be bought anywhere; (d) where specific
performance entails the rendering of services of a personal nature.
To these may be added examples given by Wessels on Contract (vol 2, sec. 3119) of good and
sufficient grounds for refusing the decree, (e) where it would operate unreasonably hardly on the
defendant, or where the agreement giving rise to the claim is unreasonable, [379] or where the decree
would produce injustice, or would be inequitable under all the circumstances. In a recent case in this
Court SCHREINER, J.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;
it is an ordinary remedy to which in a proper case the plaintiff is entitled. But the
Court has a discretion whether to grant the order or not ( Farmers' Co-op. Society v
Berry , 1912 AD 343 at p. 350). 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, 1 B O.R. 298 at p. 301). More
generally, specific performance will be refused where it would be inequitable in all
the circumstances (Wessels Contract , sec. 3119, quoting Lawson; Story Equity
Jurisprudence , sec. 769), or where from a change of circumstances or otherwise it
would be unconscientious to enforce the contract specifically. ( story, op. cit. , sec.
750 ( a); see, too, Fry Specific Performance , 5th ed., secs. 422 - 424; Mackeurtan
Sale 3rd ed., pp. 386/7.)
See Rex v Milne and Erleigh (7), 1951 (1) SA 791 at p. 873.
The matter is so well put by Story ( Equity Jurisprudence , sec. 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 it is a matter of discretion in the court: not indeed of arbitrary or capricious
discretion dependent upon the mere pleasure of the Judge, but of that sound and
reasonable discretion which governs itself as far as it may by general rules and
principles, but which at the same time withholds or grants relief, according to the
circumstances of each particular case, when these rules and principles will not furnish
any exact measure of justice between the parties. On this account it is not possible to
lay down any rules and principles which are of absolute obligation and authority in all
cases; 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. 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.
On the Court's discretion to refuse specific performance because the decree would bear hardly
on the respondent Mr. Miller , in addition to contending that hardship or embarrassement alone to a
defendant was not a sufficient ground for refusing the decree, 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

not at the time when performance was claimed. For this proposition Mr. Miller relied on Fry (Specific
Performance, 6th ed., secs. 418 - 422).

[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, 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, is in accordance with our law. In
my judgment the matter may also be judged of at the time performance is claimed. There is no
authority, as far as I know, in our law for the principle enunciated by Fry .

There is no point in investigating the law of England on the subject any further.
[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. 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.
Story in his Equity Jurisprudence , 13th ed., does not mention such a principle. In sec. 750
(a) , p. 65 he says:
Upon grounds still stronger Courts of Equity will not proceed to decree specific
performance where the contract is founded in fraud, imposition . . ., or where from a
change of circumstances or otherwise it would be unconscientious to enforce it.
There can to my mind be no doubt that in the present case to have ordered the respondent to
release 250,000 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. As far as the inhabitants, who already suffered
under severe water restrictions, were concerned, the order would not only have resulted in great
hardship, but in positive danger to the health of the community and might have disrupted the life of
the town.
On the other hand, as pointed out above, there is no indication on the papers that the appellant
suffered any damage.
I come to the conclusion, therefore, that no ground has been shown to justify us in interfering
with the discretion exercised by the Court a quo.

The appeal is dismissed with costs.


CENTLIVRES, C.J., SCHREINER, J.A., VAN DEN HEEVER, J.A., and HOEXTER, J.A.,
concurred.
[2]

BENSON v SA MUTUAL LIFE ASSURANCE SOCIETY 1986 (1) SA 776


(Appellate Division, South Africa, 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. The appellant delivered to the respondent 107 900 of the
shares, but had failed to deliver the remaining 63 600. The respondent applied to court for an order to
compel appellant to deliver the remaining shares. The respondent also claimed damages in the
amount of R9 540, alleging that as a result of the failure to deliver the shares by 22 October 1982, the
respondent missed a dividend of 15 cents per share. The appellant contended that respondent could
have purchased 63 600 ordinary shares in McCarthy Group Ltd on the stock market without difficulty,
and had he done so he would have qualified for the missed dividend. The Court rejected this

contention. It ordered the appellant to deliver the shares and awarded the respondent the damages
claimed. The Appellate Division confirmed the decision of the Divisional Court
HEFER, J.A.:
[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, 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. I
shall first deal with the argument relating to specific performance. In doing so, 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. Some of them derive from what I shall later refer to as the
English rules relating to specific performance. They may conveniently be dealt with collectively.
Others were abandoned at the hearing of the appeal and with them I shall not deal at all.
At the outset there are three preliminary observations that I wish to make. 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. 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. ( Haynes v King Williams Town
Municipality 1951 (2) SA 371 (A) at 378; Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd 1982 (1) SA 398
(A) I at 440 - 1.) It is an equally well-settled principle that the power to interfere on appeal in matters
of discretion is strictly circumscribed. 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,
that it has not brought its unbiased judgment to bear on the question or has not acted
for substantial reasons.
[782] (See too R v Zackey 1945 AD 505 at 510, 511; Madnitsky v Rosenberg 1949 (2) SA 392 (A) at
398; Commissioner for Inland Revenue v Da Costa 1985 (3) SA 768 (A) at 775.) That, in my view, is
the approach which is to be adopted in the instant case.
The second observation is that none of the trial Courts factual findings were challenged in this Court.
One of these unchallenged findings was that the appellant had agreed to deliver all the shares within a
reasonable time. The appeal accordingly has to be decided on the basis that the respondents right to
the delivery of the 63 600 shares which were not delivered, was established. Thus, adopting the
approach to which I have just referred, 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.
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.
[The Court then referred to the statement by DE VILLIERS AJA in Haynes v King Williams Town
Municipality (supra at 378) reproduced above, and continued:]
The statement that the discretion is not circumscribed by rigid rules requires some
elucidation. 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; 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. I doubt, however, whether that is what was intended, particularly after it was accepted that a
plaintiff has the right to elect whether to demand performance or to sue for damages, and that the
Courts will as far as possible give effect to his election. That a right to specific performance exists
was decided as long ago as 1882 (in Cohen v Shires, McHattie and King ( supra )) and subsequently
reaffirmed in a host of cases (see eg Thompson v Pullinger (1894) 1 OR 298 at 301; Farmers' Cooperative Society (Reg) v Berry 1912 AD 343 at 350; Woods v Walters 1921 AD 303 at 309; Shill v
Milner 1937 AD 101 at 109; BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979

(1) SA 391 (A) at 433, to mention only a few), subject only to the qualification that the Court has a
discretion to grant or to refuse an order for performance. This right is the cornerstone of our law
relating to specific performance. Once that is realised, it seems clear, both logically and as a matter of
principle, 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, whether it be flexible or inflexible, as to
the way in which the discretion is to be exercised, which does not affect the plaintiff's right in some
way or another. The degree to which it is affected depends, of course, on the nature and extent of the
rule; theoretically, I suppose, there may be a rule which regulates the exercise of the discretion
without actually curtailing it but, apart from the rule that the discretion is to be exercised judicially
upon a consideration of all relevant facts, it is difficult to conceive of one. Practically speaking it
follows that, apart from the rule just referred to, no rules can be prescribed to regulate the exercise of
the Court's C discretion.
This does not mean that the discretion is in all respects completely unfettered. It remains,
after all, a judicial discretion and from its very nature arises the requirement that it is not to be
exercised capriciously, nor upon a wrong principle (Ex parte Neethling ( supra at 335)). It is aimed at
preventing an injustice - for cases do arise where justice demands that a plaintiff be denied his right to
performance - and the basic principle thus is that the order which the Court makes should not produce
an unjust result which will be the case, eg, if, in the particular circumstances, the order will operate
unduly harshly on the defendant. 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). Furthermore, the Court will not decree specific
performance where performance has become impossible. 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. It is only the latter type of case that is relevant in the
present context, for in the former the creditor clearly has no legal remedy at all. (See De Wet and
Yeats ( op cit at 189 n 61 and the cases there cited); and see too in this connection Tamarillo (Pty) Ltd
v B N Aitken (Pty) Ltd ( supra at 441 - 3).
With these preliminary remarks in mind I now proceed to deal with the argument presented to
us by appellants counsel.
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 respondent, once it became apparent that the remaining 63 600 shares
would not be forthcoming from the appellant, 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. There is no
finding in the judgment of the Court a quo as to the availability of the shares at the relevant time but,
although the evidence seems to point the other way, I am prepared to assume that they could have
been obtained without difficulty and to deal with the argument on that basis.
Three propositions were advanced in support of the main contention. 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.
The second one was based on what Wessels says in para 3137, viz that:
[784]
... if ordinary goods or chattels are sold as may be bought anywhere, the Court will
not order specific performance.
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, specific performance will not ordinarily be granted (
Thompson v Pullinger 1 OR 298 at 301).
It is immediately apparent that all three propositions are in effect rules (indeed well-known
rules in English law) by which the Courts discretion, and thus the respondents clearly established

right to performance, is sought to be circumscribed. Take the first one for instance; a rule like the one
contended for unduly limits the Court's discretion, 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).
The second one is equally foreign to our law and inconsistent with a plaintiffs right to performance.
It simply means that a purchaser of an article which is readily available anywhere has no right to
demand its delivery from the seller; he knows that a claim for its delivery will be refused; he has no
option but to sue for damages, 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)).
For this reason alone none of these propositions can be accepted. I shall proceed, however, to
demonstrate why, for a more fundamental reason, they are to be rejected. For the sake of convenience
I shall do so by dealing specifically with the third proposition.
SCHREINER JA based his remark on Thompson v Pullinger ( supra ). In that case KOTZ
CJ, 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, where the defendant is in a position to do so, is
beyond doubt", 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, as a rule, no specific performance is decreed, because the payment of
compensation, 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, is a full and satisfactory compensation. With respect to transactions in the
public funds, and shares in companies which can daily be obtained on the market
without difficulty, this is the case; but not with respect to shares which cannot easily
be obtained, nor where, owing to some circumstance or the other, the rule ought not to
be applied. (2 Story Eq 717a ; 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. Now, 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, and although there can be no objection to such an
excursion if its purpose is to seek guidance and no more, the reference in Thompson's case to English
law on the subject of specific performance was particularly unfortunate. Its result was that, whereas
the substance of the law relating to the specific performance of contracts was sought and discovered
in the Roman-Dutch authorities, 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, there
could have been no objection. But they are not. 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. That is not the position in England. At common
law a plaintiff has no right to demand performance; his only remedy is a claim for damages (cf
Benjamin Sale of Goods 2nd ed para 1447; Fry Specific Performance of Contracts 5th ed paras 7 and
11). 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. (Snell Principles of Equity C 27th ed at
573; Odgers The Common Law of England vol 2 at 1156.) The most important rule, from which many
of the others derived, was that specific performance would not be granted where the plaintiff could be
compensated adequately by damages. 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. (Cf Baragwanath v Olifants Asbestos Co Ltd 1951 (3) SA 222 (T) at 228.)
Despite this distinctly different approach, rules deriving purely from Chancery practice were
applied in South Africa not only in Thompson v Pullinger but in a number of other cases. Some of
our textbook writers, particularly the older ones, naturally followed suit. (Cf Wessels ( op cit paras
3113 - 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. There is neither need nor reason
for this process to continue.

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.
On the contrary, they remain relevant factors which are to be considered on the same basis as any
other relevant fact is to be considered.
Reverting then to the facts of the instant case, 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, and found them insufficient reason to deny the respondent specific
performance. There is no indication that in making that finding the Court did not exercise its
discretion judicially. It follows that this Court will not interfere with the order for the delivery of the
shares.

[786] ... The appeal is dismissed with costs, which will include the costs occasioned by the
employment of two counsel.
CORBETT, J.A., KOTZ, J.A., GALGUT, A.J.A., and CILLI, A.J.A. concurred.
[3]

POTGIETER v VAN DYK AND ANOTHER [2004] 2 BLR 213

(High Court, Francistown, Botswana, 18 August 2004)


The applicant and the first respondent were co-shareholders in a company cited as the second
respondent. The applicant had a 30 per cent share in the company. The company held an interest in
Farm No. QO 38, Panandamatenga. 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, and he would in turn become the sole proprietor of the farm. It was
envisaged that title to the farm would be transferred after the National Development Bank had
released the title deed. The applicant transferred his shares in the company, but the first respondent
refused to transfer the farm after the title deed had been made available. The applicant then applied to
court for an order that the respondents effect transfer of the farm. The respondents did not file any
opposition to the application. The Court granted the application, holding that the applicant was
entitled to specific performance.
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.
See SA Cooling Services (Pty) Ltd v Church Council of the Full Gospel Tabernacle 1955 (3)
SA 541 (N). At p 544 it is stated:
... the plaintiff must nevertheless aver its readiness and willingness to carry out its
obligations under the contract and tender to do so.
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. In instituting action the innocent party must aver this
in its declaration or founding affidavit.
[215] On the strength of the analysis [of the applicants 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.

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.
See Myers v Abrahamson 1952 (3) SA 121 (C) at p 123. It has further been held that this
right of election the defendant or the defaulting party does not enjoy. See Haynes v Kingwilliamstown
Municipality 1951 (2) SA 371 (A) at p 378. The court however is not bound to grant specific
performance even in a case where the innocent party has established its case. The court has a
discretion in an appropriate case to refuse to order specific performance and leave the innocent party
to claim damages. 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 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. And still less is it incumbent on a plaintiff who claims specific
performance, the grant or refusal of which is in the final result in the discretion of the
Court, 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.
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. In conclusion I find that the applicant has provided
sufficient material to persuade the court to grant the relief of specific performance as claimed. I
therefore make the following order:
1.
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.
2.

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.

3.

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.

4.

The respondents shall bear the costs of this application jointly and severally one
paying the other to be absolved.

Application granted.
[4]

GABAAKE v. GABORONE TOWN COUNCIL [1972] 1 BLR 33


(Court of Appeal, Lobatse, Botswana, 1 February 1972)

The appellant was employed by the Gaborone Town Council as a Headmaster at Lesedi Primary
School in Gaborone. In February 1971, after convening a parents meeting in a manner not approved
of by the Council, the appellant was interdicted, pending an enquiry as to the possibility of
disciplinary proceedings. In March, however, the interdiction was lifted, and the appellant transferred
to another school, where he was to serve as an assistant teacher. He was required to immediately the
house he was occupying by virtue of his position as headmaster. When he queried the procedure and
manner of his transfer and interdiction, the Council resolved to dismiss him for alleged misconduct.
He was offered a months salary in lieu of notice on the salary scale of an assistant teacher. He

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

section 13 are otherwise than peremptory. That section clearly provides (subject to the provisions of
Part VI) that there shall be no termination of a teachers appointment unless the provisions of section
14 have been complied with, and it follows that if they are not complied with there can be no valid
termination of an appointment under the section. 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, but it
authorised salary (as assistant teacher) to be paid from 18th March to 16th April. If one includes the
18th March, a month would only expire on 17th April, and thus the Respondent authorised the
payment to the Appellant of actually less than a month's salary. Even if the Appellant had been, on
17th March, only an assistant teacher, it is clear that the provisions of section 14 (b) were not
complied with and, accordingly, that there never was a valid termination of the Appellant's
appointment. To operate as a valid termination, the Appellant had, at the time the payment was given
to him in lieu of notice, to be given a full month's salary. 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, within the meaning of the sub-section, which purported to operate on 18th March.
Clearly, the whole of the month's salary has to be given in advance, operating from the
commencement of the period. Mr. Kirby [41] for the Appellant contended that as a month, by virtue of
section 3 of the Interpretation and General Clauses Law, No. 13 of 1966, means a calendar month, the
giving of a months salary within the meaning of section 14 (b) means the giving of a months salary
calculated from the first day of one of the twelve months of the calendar, but it is unnecessary to
express any opinion upon submission.

The only remaining question is whether or not the learned Judge was correct in holding that
the Appellant's only remedy, if his appointment was terminated unlawfully, is an action for damages.
The case of Ngwenya v. Natalspruit Bantu School Board, 1965 (1) SA 692 (W), was relied upon by
the Respondent, but for some reason which is rather obscure to me, it was common cause in that case
(see p. 696 E-F) that, although the relative regulations were made under an Act of Parliament, the case
was not analogous to or comparable with the case of Schierhout v. Minister of Justice, 1926 A.D 99. I
have no manner of doubt that the present case is wholly analogous to Schierhouts case. Here, the
Appellant's conditions of service are governed by the Botswana Teaching Service Law, and by that
Law it is, as I have indicated, 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. These statutory provisions are no less peremptory than those which
were the subject of Schierhouts case were held to be (see p. 109). As was held in the analogous
circumstances of Schierhout's case, we hold that the purported termination of the Appellants
appointment is a nullity and must be regarded as never having been effected.
The appeal is allowed with costs, and the judgment of the Court below is altered to read as
follows:
1.
It is hereby declared that the Applicant is still lawfully employed by the Respondent
as Headmaster of Lesedi Primary School.
2.

The Respondent is ordered to pay the Applicant's costs.

SCHREINER, P. and MAISELS, J.A. concurred.


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, particularly if it entailed compelling parties
who cannot work together to do so. Schierhouts case indeed suggested that such an order could not
be made against the Crown. The Court of Appeal decision appears not to be constrained by the
approach or position under English common law. It is more consistent with the clarification in
Bensons case that specific performance should under South African law be regarded as the plaintiffs
primary remedy, to be awarded if sought, unless the Court in the unfettered exercise of its discretion
decides otherwise.