REPORTABLE

IN THE SUPREME COURT OF APPEAL

OF SOUTH AFRICA

CASE NO. 319/98

In the matter between:

HIGHVELD 7 PROPERTIES (PROPRIETARY)
LIMITED
1st Appellant
E G CHAPMAN EXECUTIVE HOLDINGS
LIMITED
2nd Appellant
YABEING INVESTMENT HOLDING COMPANY
LIMITED
3rd Appellant
KROON & SONS (PROPRIETARY) LIMITED
4th Appellant

and

TIMOTHY LUKE BAILES
Respondent

Coram:

HEFER, STREICHER JJA and MPATI AJA
Heard:

6   SEPTEMBER 1999
Delivered:
27 SEPTEMBER 1999

Repudiation - invalid amendment of contract - mistaken insistence that amended
contract valid and binding

J U D G M E N T

STREICHER JA/

STREICHER JA
[1] 
The issue to be decided in this case is whether the
respondent repudiated an agreement of sale concluded between him
and the first appellant.
[2] 
In terms of the agreement of sale (Athe original
agreement@), which was concluded on 7 December 1996, the
respondent sold more or less 186,4 ha of land depicted on a sketch
plan (Athe property@) to the first appellant. The property was purchased
for the purpose of developing a golf course residential estate thereon.
The shares in the first appellant were held by the second, third and
fourth appellants who bound themselves as sureties in respect of the
obligations undertaken by the first appellant.
[3] 
The agreed purchase price was R126 073 per hectare and
was payable in 4 instalments, the first of which was payable against

transfer of the property. Clause 4 of the original agreement provided
that if upon survey the area of the property was found to be more or
less than 186,4 ha the purchase price and also the final instalment had
to be adjusted at the rate of R126 073 per hectare. In terms of clause
20.1 the first appellant had to engage at its cost the services of F. Pohl
and Partners, a firm of town planners, to prepare a development plan
in accordance with the provisions of the Hillcrest 2 Town Planning
Scheme to enable a Mr Levitt to apply for and obtain town planning
approval of the proposed golf course estate .
[4] 
In terms of clause 20.3 the first appellant appointed Levitt
in consultation with F Pohl and Partners to apply for town planning
approval of its development plan and Afor any town planning special
consent which may be required in pursuance of the development plan@.
All necessary information sufficient to enable Levitt to apply for the

said approval had, in terms of clause 20.2 to be lodged by the first
appellant with him within 60 days after signature of the original
agreement. The 60 day period was subsequently extended by the
respondent to 26 February 1997.
[5] 
At a meeting held on 11 February 1997 certain
adjustments to the boundaries of the property were discussed. The
adjustments consisted of the addition of three additional pieces of land
which came to be known as the sausage, the small triangle and the side
triangle, and the deduction of a piece of land which came to be known
as the big triangle. No agreement on the price payable in respect of the
additional land could be reached. Levitt, who at all relevant times
during the negotiations acted on behalf of the respondent, stated that
the price for the additions had to be R180 000 per hectare whereas the
deductions had to be priced at R126 073 per hectare. Mr Kroon, who

represented the first appellant, suggested a price of R126 073 per
hectare for the additions. According to Levitt, who deposed to the
founding affidavit filed by the respondent, Kroon, acting on behalf of
the first appellant, agreed to his terms during a subsequent telephone
conversation. Kroon denies that he agreed on a price of R180 000 per
hectare for the additional land.
[6] 
On 14 February 1997 the respondent wrote to the first
appellant as follows (Aannexure >L=@):
ASALE OF LAND AT HILLCREST

With regard to Mr R E Levitt=s verbal discussions with Mr H
Kroon I confirm that subject to what follows I am prepared at
your request to enter into an addendum to our agreement to
provide for:

1.
The sale to you of three pieces of land measured by F
Pohl and Partners and depicted on a plan handed to Mr
Levitt, said to be 5.4750 ha in extent, at R180 000 per
hectare: R985 500.
2.
The deduction of one piece of land from the property measured

and depicted as stated above, being estimated 2.2 ha at R126 073
per hectare: R277 360.
3.
A net addition to the purchase price of R708 140 (R985 500 -
R277 360) plus V.A.T.

My agreement to this variation is subject to the following conditions:

a.
The additional purchase price will be added pro rata to the sums
set out in clauses 3.1.1, 3.1.2, 3.1.3 and 3.1.4 of our agreement.
b.
Clause 4 will be amended so as to provide for any variation in the
area of the additional land now sold to be adjusted at R180 000 per
hectare.
c.
Apart from the necessary adjustments to clauses 3 and 4 all other
stipulations in the agreement remain unaltered and of full force
and effect.

Upon receipt of your written confirmation of these proposals I will arrange
for the addendum to be prepared for signature.@

Levitt alleges that this letter confirmed the verbal agreement which he had
reached with Kroon. This is denied by Kroon.
[7] 
In another letter of the same date to Mr Swemmer, the chief
executive officer of the second appellant, the respondent expressed concern about
proposals by the first appellant that the number of dwelling units in the
development be increased from 550 to 800.  Still on 14 February 1997 Swemmer,
in a letter to the respondent (Aannexure >N=@), said: AWe do not accept that you

expect us to agree to increase the footprint of the site to be purchased but not
agree that the number of stands be increased.@ He made no mention of the price
payable for the additions.
[8] 
In the minute of a meeting held on 18 February 1997 and attended
by representatives of the first appellant and the respondent, it was recorded: AMr
Herman Kroon referred to a letter dated 14 February 1997 regarding amendments
to the sale agreement, and mentioned that the relevant clause (sale agreement)
regarding the total area and cost of the property has to be amended accordingly
and signed@. According to Kroon there was no question at the meeting of the first
appellant having confirmed or accepted any particular price which had been put
forward by the respondent. The minute was drafted by Mr Brandt a partner in F
Pohl and Partners. According to him there was a dispute as to what the price
should be and no agreement was reached thereanent.  Kroon had merely referred
to the letter of 14 February 1997 and said that if agreement was reached on the
price, it would have to be reduced to writing and signed.
[9] 
Application was made for the approval of a development plan in

respect of the property with the additions and deduction to which I have referred
(Athe enlarged property@) and for the rezoning thereof. Copies of the draft
advertisements for the applications and of the report in motivation of the
application for rezoning were sent to Mr Pohl for comment. Pohl was acting on
behalf of the first appellant. On 1 March 1997 Levitt also sent two copies of the
applications to Kroon. No amendments were suggested by either Kroon or Pohl.
[10] 
In a letter dated 4 March 1997 the respondent contended that the
first appellant had agreed that the agreement of sale be amended as set out in the
above-quoted letter of 14 February 1997 but indicated his willingness to reduce
the purchase price from R25 365 622 to R24 932 315. The offer was not accepted
by the first appellant. Instead, Kroon suggested that the purchase price required by
the respondent be further reduced by an amount of R315 000. The suggestion was
rejected.
[11] 
The respondent, in a letter dated 25 March 1997, again claimed that

the first appellant had agreed that the original agreement be amended as set out in
the above-quoted letter of 14 February 1997 (annexure AL@) and repeated his
willingness to reduce the purchase price. He added that if the offer was not
accepted the matter would have to proceed according to the agreement of sale as
amended by the first appellant=s acceptance of the proposals set out in his letter
dated 14 February 1997 (Athe disputed agreement@). The offer was still not
accepted. In his reply to the respondent=s letter, on 27 March 1997, Kroon stated
that it would appear that the parties were unable to reach agreement on the price
per hectare to be applied to the land added to the land originally sold. He
suggested that negotiations be discontinued and said that a new application for
"use rights" would have to be submitted. The respondent=s response is contained
in a letter dated 2 April 1997. He claimed that a firm agreement had been reached
on the price per hectare of land added or deducted and added: AThe present
applications for rezoning and for approval of your Development Plan are correctly
based upon the land which you have bought. These applications must proceed to
their final conclusion. Any action by you which delays or adversely affects the

prospects for the approval of the applications would be a breach of our
agreement.@ On 18 April 1997 and in a letter to the first appellant marked for the
attention of  Swemmer,  Levitt reiterated on behalf of the respondent that he was
adamant that the original agreement had been amended and stated that guarantees
for the full purchase price would be required in the near future. Kroon replied on
29 April 1997 that in view of the fact that the parties had not reached an
agreement concerning the land added to the property, the application for rezoning
should be amended without further delay as the appellants were not prepared to
run the risk of having the application considered and dealt with on the basis of an
incorrect property description. He suggested an urgent meeting between the
parties in a final endeavour to resolve what appeared to have become an impasse.
He stated that it was imperative that the plans forming part of the zoning
application be rectified without delay and that for that reason the meeting had to
take place without delay. In yet another letter to the first appellant, dated 9 May
1997, Levitt, on behalf of the respondent, again claimed that the original
agreement had been amended and requested the first appellant to deliver

guarantees for the four instalments payable in terms of the disputed agreement
within 7 days from the date of the letter. On 13 May 1997, in a letter marked
personal and addressed to Swemmer, Levitt threatened that his client, the
respondent, would institute proceedings against the first appellant for the
immediate payment of the full amount of the purchase price (as amended) in the
event of the guarantees not being delivered in terms of the disputed agreement. He
also stated that he believed that the claim for damages flowing from the breach
would be substantial.
[12] 
The first appellant thereupon cancelled the original agreement. In
the letter of cancellation, dated 15 May 1997 its attorneys said:
A2.
We acknowledge receipt on behalf of Highveld 7 and E G
Chapman Executive Holdings Limited of the letters written by
your attorney, Mr R E Levitt, to those parties and dated,
respectively, 9 May 1997 and 13 May 1997.
3.
Our instructions are that Highveld 7 has stated on a number of
occasions that no agreement to amend the contract of 7 December
1996 has been reached by the parties to that contract. Highveld 7
has also stated, more than once, that it is quite willing and able to
comply with the contract of 7 December 1996, and that it regards
itself, and you, as bound thereby. However, you have over the past
few months, and especially in your attorney=s abovementioned
letter of 9 May 1997, made it quite clear that you have no intention

whatsoever of complying with the contract of 7 December 1996
and that you require Highveld 7 to comply with the terms of a new
contract which you allege the parties entered into. You have,
consequently, clearly and unequivocally repudiated the contract of
7 December 1996. Highveld 7 has decided to accept your
repudiation and we hereby accept it on its behalf. The contract of 7
December 1996 is hereby cancelled.@

[13] 
Levitt promptly responded by letter dated 16 May 1997. He denied
that the respondent had repudiated the original agreement. He contended that the
first appellant=s proper course was to tender delivery of the guarantees covering
the purchase price stipulated in the original agreement and reiterated that
consensus had been reached on the purchase price of the three additional pieces of
land and the deduction of the fourth piece.
[14] 
The respondent thereupon instituted proceedings in the court a quo
in terms of which he asked for an order declaring that the original agreement as
amended by annexure AL@ and the first appellant=s letter of the same date
(annexure AN@) was of full force and effect and binding as between him and the
first appellant. In the alternative he asked for an order declaring that the original
agreement was binding and of full force and effect.

[15] 
The court a quo held that no amendment of the original agreement
had been proved. It held further that the respondent=s conduct did not amount to a
repudiation entitling the first appellant to cancel the original agreement. In the
result it declared that the original agreement was binding and of full force and
effect but granted leave to the appellants to appeal to this court.
[16] 
In this court counsel for the respondent conceded, as he had to do,
that the first appellant never agreed in writing to an amendment of the original
agreement and that in the light of the formalities prescribed by s 2 of the
Alienation of Land Act 68 of 1981 no legally binding agreement to amend the
original agreement had been entered into by the parties. He submitted, however,
that the respondent and the first appellant orally reached consensus on the terms of
an amendment to the original agreement; that the first appellant never placed in
issue the validity of the disputed agreement on the basis of non-compliance with
the statutory formalities; that although the respondent required the first appellant
to perform in terms of such consensus it cannot be said that the respondent would
have insisted on performance in terms of the disputed agreement had the first

appellant denied the existence of an agreement because of a failure to comply with
the statutory formalities; that the respondent had not breached any term of the
original agreement and had not indicated that it intended to do so; and that  the
respondent=s demand that the first appellant  perform in terms of the disputed
agreement could in the circumstances not be construed as a repudiation.
[17] 
It is apparent from the aforegoing that there is a dispute between
the parties as to whether oral consensus was reached in respect of the price
payable in respect of the three additional pieces of land. The evidence of Kroon
and Brandt that no consensus was reached at the meeting held on 18 February
1997 cannot be rejected on the papers. The confirmation in annexure AL@ by the
respondent that he was prepared to enter into an addendum to provide for the sale
of the three additional pieces of land and the deduction of another piece at the
price mentioned may simply have been a confirmation of the prices required by
the respondent and not of a consensus reached with Kroon.

It is
somewhat unlikely that the first appellant would have allowed the applications for

the approval of the development plan and for the rezoning of the enlarged
property to proceed before consensus in respect of the price payable was reached.
However, I am not satisfied that there is no real and genuine dispute of the facts
in question or that the appellants= allegations are so far-fetched or clearly
untenable as to warrant their rejection merely on the papers or that oral evidence
would not disturb the balance of probabilities appearing from the affidavits. None
of the parties required the matter to be referred to evidence. The matter therefore
has to be decided on the basis of the appellants= version that no consensus in
regard to the price payable in respect of the additions had been reached (see
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at
634E-635C).
[18] 
In any event the respondent's attitude was that the first appellant
and he were contractually bound to one another in terms of the disputed
agreement and no longer in terms of the original agreement. It is on this basis:
That he said in his letter of 25 March 1997 that if his offer to
reduce the purchase price was not accepted the matter would have
to proceed according to the disputed agreement.

That, after Kroon had stated that the parties seemed to be unable to
reach agreement on the price per hectare to be applied to the land
added to or deducted, he said in his letter dated 2 April 1997 that a
firm agreement had been reached; that the applications for
rezoning and for approval of the development plan were correctly
based upon the land bought; and that any action which could delay
or adversely affect the prospects for the approval of the
applications would be a breach of the agreement.
That Levitt stated in his letter of 18 April 1997 that he was
adamant that the original agreement had been amended and that
guarantees for the full purchase price would be required in the near
future.
That, after Kroon had suggested that the application for rezoning
be amended as a matter of urgency and that an urgent meeting
between the parties should be held to resolve what appeared to
have become an impasse, he  claimed that the agreement had been

amended and that guarantees in terms of the amended agreement
should be delivered within 7 days.
That Levitt stated in his letter dated 13 May 1997 that the
respondent would institute proceedings against the first appellant
for the immediate payment of the full amount of the purchase price
(as amended) and for damages in the event of the guarantees not
being delivered in terms of the disputed agreement.
[19] 
The question to be decided is whether this attitude adopted by the
respondent constituted a repudiation. The test to determine whether conduct
amounts to a repudiation is whether fairly interpreted it exhibits a deliberate and
unequivocal intention no longer to be bound (see O K Bazaars (1929) Ltd v
Grosvenor Buildings (Pty) Ltd 1993 (3) SA 471 (A) at 480I - 481A).
[20] 
The court a quo held that the respondent had not evinced a
deliberate and unequivocal intention not to be bound by the original agreement.
Nicholson J stated that the modified contract was a relatively small addition and
subtraction from the original and that it was illogical to regard the respondent=s

insistence on the modified contract as a repudiation of the original contract. He
added that there was no suggestion that the respondent wanted the modified deal
or no deal at all. In this regard he referred to the letter written by Levitt the day
after the cancellation in which he denied that the respondent had repudiated the
original agreement. He said that the first appellant should have tendered delivery
of the guarantees covering the purchase price stipulated in the original agreement
whereupon the validity of the arrangements for the four pieces of land in issue
could have been tested by appropriate litigation.  The court a quo's judgment has
been reported (Bailes v Highveld 7 Properties (Pty)Ltd & Others 1998 (4) 42
(N)).
[21] Apart from the fact that it is a question of law, to be
decided by the court, whether the respondent=s conduct constituted a
repudiation, the test which has to be applied to determine whether the
original agreement was repudiated,  is an objective one. It follows that
even a bona fide, subjective intention not to repudiate the agreement

would not assist the respondent if he acted in such a way as to lead a
reasonable person to the conclusion that he did not intend to fulfil his
part of the original agreement. In Metalmil (Pty) Ltd v AECI
Explosives and Chemicals Ltd 1994 (3) SA 673 (A) Howie JA and
Mahomed AJA said at 684I - 685C:
AIt is probably correct to say that respondent was bona
fide in its interpretation of the agreement and that subjectively it
intended to be bound by the agreement and not to repudiate it.
This fact does not, however, preclude the conclusion that its
conduct constituted repudiation in law. Respondent was not
manifesting any intention to conduct its relations with appellant
and to discharge its duties to appellant in accordance with what
it was obliged to do on an objective interpretation of the
agreement. In effect, it was insisting on a different contract,
however bona fide it might have been in its belief that it was
not. As was stated by Lord Wright in the case of Ross T Smyth
& Co Ltd v T D Bailey, Son & Co [1940] 3 All ER 60 (HL) at
72B:

' I do not say that it is necessary to show that the party
alleged to have repudiated should have an actual
intention not to fulfil the contract. He may intend in fact
to fulfil it, but may be determined to do so only in a

manner substantially inconsistent with his obligations,
and not in any other way.'

The objective conduct of respondent in this case, in our

view, entitled appellant to cancel the contract on the
grounds that respondent had repudiated it even if respondent
believed that it was abiding by the contract.@

[22] Counsel for the respondent submitted that unless it could
be found that the respondent indicated that he would not be prepared
to comply with his obligations under the original agreement, if for any
reason the amendments proved to be ineffective, his conduct did not
constitute a repudiation.
[23] In this regard the respondent relies on two English cases
namely Spettabile Consorzio Veneziano Di Armamento e Navigazione
v Northumberland Shipbuilding Company Limited (1919) 121 LT 628
and Woodar Investment Development Ltd v Wimpey Construction UK
Ltd [1980] 1 All ER 571 (HL). In Spettabile it was held that when one

party to a contract asks the court to declare whether or not he is bound
by a contract he does not thereby repudiate the contract. Atkin LJ, in
an appeal from the Queen=s Bench Division, said at 635:
AThe writ takes the form of asking for a declaration as to the
rights of the parties. I agree that it asks for alternative
declarations, and it asks for relief in addition to declarations.
But the substance of it appears to me to be this: that the
plaintiffs in the action are asking the court to declare whether or
not they are any longer bound by the contracts. It appears to me
that that is an entirely different state of facts altogether from an
intimation by the plaintiffs, apart from the courts of law, that
they in any event are not going to perform the contracts. It is
something quite different from a repudiation.@

[24] In Woodar Lord Wilberforce stated that in considering
whether there had been a repudiation by one party, it was necessary to
look at his conduct as a whole (574c). In that case Wimpey gave a
notice of rescission of a contract to Woodar. Wimpey was not entitled
to do so but it was accepted that Wimpey honestly believed that it was

entitled to rescind. Before service of the notice of recission the parties
discussed the matter. Wimpey contended that it was entitled to rescind
the contract. Woodar contended the contrary. The upshot of the
discussion was that Wimpey would serve a notice to rescind and that
Woodar would not regard it as a hostile act but would take Wimpey to
court and let the judge decide whether the contract could be rescinded
or not (574j - 575a). The assumption was that both sides would abide
the decision of the court (575e).  The House of Lords (Lord Salmon
and Lord Russell dissenting) held that Wimpey=s conduct did not
amount to a repudiation of the contract.
[25] Lord Wilberforce considered the notice of rescission to
be a neutral act consistent either with an intention to preserve, or with
an intention to abandon, the contract (574d). He was of the view that
the facts referred to above indicated that, objectively considered,

Wimpey had no intention of abandoning the contract. It is against this
background that he said (at 576c-d):
A(I)t would be a regrettable development of the law of contract
to hold that a party who bona fide relies on an express
stipulation in a contract in order to rescind or terminate a
contract should, by that fact alone, be treated as having
repudiated his contractual obligations if he turns out to be
mistaken as to his rights. Repudiation is a drastic conclusion
which should only be held to arise in clear cases of a refusal, in
a matter going to the root of the contract, to perform contractual
obligations.@

[26] Lord Keith was also of the view that Wimpey had not
repudiated the agreement, mainly because Wimpey served the notice
of rescission in the expectation that Woodar would initiate legal
proceedings in order to test its validity, without indicating in any way
that it would refuse performance in the event of a judicial
determination that its belief that it was entitled to do so, was erroneous
(587f-h). He stated in general at 588b-d:

AThe doctrine of repudiatory breach is largely founded on
considerations of convenience and the opportunities which it
affords for mitigating loss, as observed by Cockburn CJ in
Frost v Knight (1872) LR 7 Exh 111 at 114. It enables one party
to a contract, when faced with a clear indication by the other
that he does not intend to perform his obligations under it when
the time for performance arrives, to treat the contract, if he so
chooses, as there and then at an end and to claim damages as for
actual breach. Where one party, honestly but erroneously,
intimates to the other reliance on a term of a contract which, if
properly applicable, would entitle him lawfully to rescind the
contract, in circumstances which do not and are not reasonably
understood to infer that he will refuse to perform his obligations
even if it should be established that he is not so entitled, legal
proceedings to decide that issue being in contemplation, I do
not consider it in accordance with ordinary concepts of justice
that the other party should be allowed to treat such conduct as a
repudiation. Nor, in my opinion, are there any considerations of
convenience which favour that course.@

[27] Lord Scarman stated that the law required that not only
the party=s conduct but also, objectively considered, its impact on the
other party be assessed (590b). In this case Wimpey believed that it
was acting pursuant to the contract and Woodar never thought that if

Wimpey was held not to be entitled to give a notice of rescission it
would refuse to perform the contract (590d-e).
[28] In Wimpey the notice of rescission was given on the basis
that its validity would be tested in a court and that Wimpey would
perform in terms of the contract should the court decide against it. The
present case is quite different. Unlike in Wimpey the respondent's
attitude was not adopted on the basis that it was subject to correction.
He was quite adamant even after it must have become clear to him that
there was a dispute as to whether the original agreement had been
amended or not. Clause 3.3 of the original agreement required the first
appellant to deliver to the respondent guarantees for the payment of
the four instalments payable in terms of the agreement of sale within 7
days Aafter the fulfilment of the condition contained in 20". The

condition referred to was the approval of the development plan and the
rezoning applications. The first of the instalments was payable against
registration of transfer of the property into the name of the first
appellant. The development plan in respect of the enlarged property
was approved on 16 April 1997 and the first appellant was advised of
the approval on 18 April 1997. No development plan in respect of the
property was approved. The respondent nevertheless insisted that
guarantees be delivered in respect of the amended purchase price, the
first of which was to be payable against registration of the land sold in
terms of the Aamended agreement of sale@.
[29] In my view, the respondent=s insistence that guarantees be
delivered in terms of the disputed agreement and his threats to
approach the court in order to compel the first appellant to deliver
such guarantees and to claim damages suffered as a result of the first

appellant having breached the disputed agreement by failing to deliver
such guarantees, would have led a reasonable person in the position of
the first appellant to the conclusion:
1.
That it would serve no purpose to apply for the approval of a
development plan and a rezoning in respect of the land sold in
terms of the original agreement;
2.
That it would serve no purpose to deliver guarantees for the
payment of the purchase price payable in terms of the original
agreement against transfer of the property.
3.
That the respondent would not transfer the land sold in terms of
the original agreement against performance by the first appellant
of its obligations in terms of that agreement.
[30] 
The respondent therefore unequivocally and deliberately made it
clear that he considered himself to be bound by the terms of the disputed
agreement and not by the original agreement which was in fact binding on him.
The agreements differed materially from one another both in respect of the

property sold and the purchase price. The respondent therefore repudiated the
original agreement.
[31] 
Counsel for the respondent submitted that if we were to find that
the first appellant repudiated the original agreement, no party could safely make a
demand or seek to enforce a contract as amended, without running the risk that if
its contentions regarding the amendment proved incorrect, the entire contract
could be cancelled even though it was perfectly willing to perform under the
contract as unamended and had never suggested that it would not do so. The result
contended for does not follow from the finding that the respondent repudiated the
original agreement. Firstly, the finding is based on the prior finding that the
respondent indicated that he was not willing to perform under the original
agreement. Secondly, each case has to be decided in the light of its particular
circumstances. An important consideration in the present case is that the
respondent persisted in his claim that the disputed agreement and not the original
agreement was binding on the parties. He did so even after it must have become

clear to him that the dispute in this regard could not be resolved by the parties
themselves, and without qualifying his claim by making it subject to correction by
a court or in any other way. When a party fails to perform an obligation in terms
of an agreement he breaches that agreement and it is no excuse for him to say that
he, because of some or other misapprehension on his part, thought that the
obligation was not due and that, had a court ruled against him, he would have
performed the obligation. There is no reason why the position should be different
where a party=s conduct exhibits a deliberate and unequivocal intention no longer
to be bound by an agreement (see Federal Commerce Navigation Co Ltd v
Molena Alpha Inc [1978] 3 All ER 1066 at 1082).
[32] 
The court a quo should therefore have dismissed the respondent=s
application. The appellants contended that they were entitled to the costs of two
counsel in this court as well as in the court a quo. In my view neither the appeal
nor the application in the court a quo required the services of two counsel.
The following order is made:
1.
The appeal is upheld with costs.

2.
The order made by the court a quo is set aside and the following
order is substituted therefor:
AThe application is dismissed with costs.@

___________________
P E STREICHER
JUDGE OF APPEAL

Concur:

HEFER JA
MPATI AJA