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South Africa: Supreme Court of Appeal |
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In the matter between
CASH CONVERTERS SOUTHERN AFRICA
(PTY) LTD APPELLANT
and
(PTY) LTD RESPONDENT
Coram: Howie, Schutz, Navsa, Brand JJA and Lewis AJA
Date of hearing: 23 May 2002
Date of delivery: 31 May 2002
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[1] I agree with the judgments of Navsa and Brand JJA and disagree with that of Lewis AJA. Additionally to what Brand JA has said I would add this.
[2] Reliance is placed on those cases which, in order to avoid unjust enrichment, allow an innocent party who is no longer able to return exactly what he has received to make restitution in some alternative form to a greater or lesser extent. But this allowance, I must stress, is made to the innocent party.
[3] I can see no reason for making a similar allowance in a case such as is before us. Rosebud has breached its duties in a serious respect. To allow it to demand restitution of the price would mean that by its own breach of the second agreement it could cast off the obligation placed upon it by the sale agreement – to pay the price. If that were allowed it could achieve the same result by repudiating the second agreement in refusing to perform its obligations under it. In other words the contract-breaker would be able to relieve himself of the obligation to pay the price by his own breach. That cannot be correct. Nor do I see any injustice in Cash Converters receiving back what it has duly delivered in terms of its obligation, but which has, in effect, been cast aside by Rosebud.
____________
HOWIE JA
NAVSA JA
BRAND JA
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URL: http://www.saflii.org/za/cases/ZASCA/2002/67.html
.RTF of original document