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Contract - breach - remedies - specific performance - principles - party seeking specific performance must show has complied with own obligations under contract
Contract - cancellation - sale of land by instalments - when cancellation by seller valid - notice which seller must give - effect of failure to give required notice - what purchaser must show if he seeks to allege non- compliance by seller with notice requirements
Evidence - onus - civil matter - onus lies on person who makes averment, whether positive or negative
An order for specific performance in favour of a litigant is entirely within the discretion of the judicial officer before whom the application has been made. An applicant who seeks an order for specific performance must perforce establish that he has complied with his obligations under the agreement. An applicant who seeks specific performance thus has an onus to show that he is entitled to such an order in his favour. In respect of bilateral contracts, a party who seeks specific performance must first fulfil or be ready and able to fulfil his own obligation.
A seller of land under an instalment sale must if, because of a breach of contract by the purchaser, he wishes to enforce a penalty stipulation, cancel the contract or institute proceedings for damages, give notice of his intention in terms of s 8(2) of the Contractual Penalties Act [Chapter 8:04]. If the purchaser seeks to rely on the non-compliance by the seller with the provisions of s 8(2), he must put facts before the court that establish that the seller did not comply and that thus the cancellation was of no force and effect. If the purchaser wishes to go further and To seek other remedies, such as specific performance, he should seek a declaratory order that the cancellation was void.
The general principle regarding the burden of proof is simply stated as follows: he who avers must prove. Where a given allegation, whether affirmative or negative, forms an essential part of a party's case, the proof of such allegation rests on him.
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