Niemesh Singh v McCarthy Retail Ltd (t/a McIntosh Motors)

In February 1996 the respondent sold a new 1996 Mercedes Benz E 320 A Sportline to the appellant under a written contract. The vehicle was sourced from another dealer in King Williams Town and delivered to Durban. Instead of being transported by carrier, it was driven under its own power from King Williams Town to Durban with its odometer disconnected, resulting in undisclosed mileage and minor defects. The appellant claimed that the contract should be rectified to include a term requiring carrier transportation, that the respondent breached the contract, and that the breach entitled him to rescind the contract and claim restitution.

The appeal was dismissed with costs, and the judgment of the court a quo granting absolution from the instance was confirmed.

The case is an important authority on South African contract law regarding cancellation for malperformance. It clarifies that rescission is an exceptional remedy requiring a serious breach and that courts must make a value judgment balancing fairness to both parties. It also affirms the strict requirements for establishing a tacit lex commissoria.