The appellants, Renata and Charles Cohen, entered into an agreement on 17 October 2003 to purchase residential property from the respondents, Stewart Lench and Pamela Pillay, for R1 675 000. The balance of the purchase price was to be secured by guarantees delivered by 5 January 2004. The sellers alleged that when guarantees were not delivered by that date, Stewart Lench delivered a written notice to remedy the breach by attaching it to the perimeter gate of the gated townhouse complex where the Cohens lived. The Cohens denied ever receiving the notice. When the guarantees were later furnished, the sellers persisted in cancelling the agreement. The Cohens approached the High Court for declaratory relief and specific performance. After conflicting findings in the High Court and the Full Court, the matter came before the Supreme Court of Appeal.
The appeal was upheld with costs. The Full Court’s order was set aside and replaced with an order declaring that the agreement of sale had not been lawfully cancelled, directing the sellers to take all steps necessary to effect transfer of the property to the Cohens (failing which the Sheriff was authorised to do so), and ordering the sellers to pay the costs of the application.
The case is an important authority on the strict enforcement of domicilium clauses in South African contract law. It clarifies that delivery of notices must occur at the precise domicilium chosen in the contract or be proved to have been received, and that courts will closely scrutinise alleged compliance where cancellation of a contract is at stake.