oa Litnet Akademies : 'n Joernaal vir die Geesteswetenskappe, Natuurwetenskappe, Regte en Godsdienswetenskappe - Vonnisbespreking : kan repudiëring ooit aanvaarbaar wees? : regte
Can repudiation ever be acceptable?
The supreme court of appeal in the recent decision of Comwezi used the "offer and acceptance" construction of repudiation in terms of which there is no breach of contract prior to the "acceptance" of repudiation on the part of the aggrieved party. In following this approach the court disregarded its earlier decision in Datacolor International (Pty) Ltd Intamarket (Pty) Ltd 2001 2 SA 284 (SCA), where it clearly held that this construction is incorrect and that an incorrect perception of the nature of repudiation could result in incorrect conclusions being drawn. By reverting to this construction of repudiation the court has ignored its own previous decision on this matter and thus is also not following the principle of stare decisis. The constitutional court has held that the principle of stare decisis is part of the rule of law, which in turn is a founding value of our Constitution, and therefore it is necessary to comply with this principle. It is not clear why the supreme court of appeal chose to ignore a previous decision, but it does not bode well for legal certainty.
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