Beryl concludes an agreement with Gary whereby Gary undertakes to waterproof the roof of Beryl’s home
in Strand. The contract price is R500/sqm, with a 10% deposit to be paid before the work is to commence.
The total to be paid by Beryl is thus R300 000, and she pays Gary R30 000 as the deposit. After arranging
with Gary that he will begin work on the waterproofing on 1 April 2020, Beryl makes plans to go on a 2-
week vacation from 30 March, giving Gary space to complete the work uninterrupted. Before she leaves,
Beryl arranges with a neighbour to give Gary and his crew access to the property on 1 April. When she
returns from her holiday and goes to retrieve her key from her neighbour, Beryl finds out that Gary never
arrived to complete the waterproofing work and it has been storming in Strand for the past three days.
When she gets home, Beryl finds that part of her ceiling has caved in, allowing rain into her house which
caused significant water damage to her belongings. Furious, she calls Gary’s office, but there is no
response. She then sends Gary an email demanding that he completes the work within the next week and
that he reimburse her for the damage caused by his failure to complete the work as agreed upon. Advise
Beryl on her legal position in this instance.
STARTING POINT: WHO is the party that we are advising? – In this case: Beryl (creditor)
Step 1: Have the parties complied with what was agreed upon in the contract? Based on facts.
- Gary failed to complete the work that Beryl contracted him to do while she was away = breach of
contract
- Beryl made sure that Gary had access to the house by giving the key to the neighbour + paid
deposit = fulfilled her obligations that were due until the point in question
Step 2: What kind of breach is it? State and apply requirements
- G
a
r
y
did not arrive to complete the work = mora debitoris
o Requirements for mora debitoris:
Debt must be due and enforceable
General rule is set out in Nel v Cloete: Creditor may demand performance as soon as
contract is concluded, or as soon as reasonably possible thereafter (only applies if
there is no agreement to contrary)
Debtor must have failed to perform on time
Mora ex re or mora ex persona?
, o Mora ex re: Set time for performance
Express or tacit?
If tacit = Hattingh v Pienaar: Due date implied when clear from
circum./contract + intention of parties
In this case: Can argue mora ex re based on reasonable time for completing (i.e. time for performance by
implication) = The fact that Gary had to get the key from the neighbour is proof that he knew that Beryl
was going to be away for two weeks to give him space to work. Waterproofing within reasonable time is
also necessary, which Gary would have known given his occupation and presumed experience.
o Mora ex persona: No set time for performance = In this case, there was no due
date – only a start date
Debtors delay to perform does not automatically put them in mora =
Creditor can demand by a specific date or reasonable time within
circumstances (Breytenbach v Van Wijk: S19(2) of CPA)
Demand can be verbal, written or by court order (Du Plessis v Joubert)
Demand can be issued any time after conclusion (Nel v Cloete)
“reasonable” – depends on circumstances + facts (Microutsicos v Swart)
o Unreasonable delay: If time is of the essence = auto in mora if they do
not perform in reasonable time (Federal Tobacco v Barron)
In this case: We do not know if Gary actually made performance after Beryl’s email which gave him a
further week to correct his delay.
Delay was debtor’s fault – no lawful excuse
Legal justification for delay? (Scoin v Bernstein) – Onus on debtor to prove (Legogote)
o Reasonable ignorance (Legogote v Delta)
o Creditor’s actions cause delay
o Performance was impossible
Step 3: Any other possible breaches?
in Strand. The contract price is R500/sqm, with a 10% deposit to be paid before the work is to commence.
The total to be paid by Beryl is thus R300 000, and she pays Gary R30 000 as the deposit. After arranging
with Gary that he will begin work on the waterproofing on 1 April 2020, Beryl makes plans to go on a 2-
week vacation from 30 March, giving Gary space to complete the work uninterrupted. Before she leaves,
Beryl arranges with a neighbour to give Gary and his crew access to the property on 1 April. When she
returns from her holiday and goes to retrieve her key from her neighbour, Beryl finds out that Gary never
arrived to complete the waterproofing work and it has been storming in Strand for the past three days.
When she gets home, Beryl finds that part of her ceiling has caved in, allowing rain into her house which
caused significant water damage to her belongings. Furious, she calls Gary’s office, but there is no
response. She then sends Gary an email demanding that he completes the work within the next week and
that he reimburse her for the damage caused by his failure to complete the work as agreed upon. Advise
Beryl on her legal position in this instance.
STARTING POINT: WHO is the party that we are advising? – In this case: Beryl (creditor)
Step 1: Have the parties complied with what was agreed upon in the contract? Based on facts.
- Gary failed to complete the work that Beryl contracted him to do while she was away = breach of
contract
- Beryl made sure that Gary had access to the house by giving the key to the neighbour + paid
deposit = fulfilled her obligations that were due until the point in question
Step 2: What kind of breach is it? State and apply requirements
- G
a
r
y
did not arrive to complete the work = mora debitoris
o Requirements for mora debitoris:
Debt must be due and enforceable
General rule is set out in Nel v Cloete: Creditor may demand performance as soon as
contract is concluded, or as soon as reasonably possible thereafter (only applies if
there is no agreement to contrary)
Debtor must have failed to perform on time
Mora ex re or mora ex persona?
, o Mora ex re: Set time for performance
Express or tacit?
If tacit = Hattingh v Pienaar: Due date implied when clear from
circum./contract + intention of parties
In this case: Can argue mora ex re based on reasonable time for completing (i.e. time for performance by
implication) = The fact that Gary had to get the key from the neighbour is proof that he knew that Beryl
was going to be away for two weeks to give him space to work. Waterproofing within reasonable time is
also necessary, which Gary would have known given his occupation and presumed experience.
o Mora ex persona: No set time for performance = In this case, there was no due
date – only a start date
Debtors delay to perform does not automatically put them in mora =
Creditor can demand by a specific date or reasonable time within
circumstances (Breytenbach v Van Wijk: S19(2) of CPA)
Demand can be verbal, written or by court order (Du Plessis v Joubert)
Demand can be issued any time after conclusion (Nel v Cloete)
“reasonable” – depends on circumstances + facts (Microutsicos v Swart)
o Unreasonable delay: If time is of the essence = auto in mora if they do
not perform in reasonable time (Federal Tobacco v Barron)
In this case: We do not know if Gary actually made performance after Beryl’s email which gave him a
further week to correct his delay.
Delay was debtor’s fault – no lawful excuse
Legal justification for delay? (Scoin v Bernstein) – Onus on debtor to prove (Legogote)
o Reasonable ignorance (Legogote v Delta)
o Creditor’s actions cause delay
o Performance was impossible
Step 3: Any other possible breaches?
