''Benson v SA Mutual Life Assurance Society''
[1986 (1) SA 776 (A).] is an important case in
South African contract law
South African contract law is "essentially a modernized version of the Roman-Dutch law of contract",Du Plessis, et al. p.11. and is rooted in canon and Roman laws. In the broadest definition, a contract is an agreement two or more parties en ...
, particularly in the area of claims for specific performance. It was heard in the Appellate Division, by
Corbett JA, Kotzé JA,
Hefer JA,
Galgut AJA and Cillié AJA, on 7 November 1985, with judgment handed down on 29 November.
The court determined that the granting of an order of specific performance is entirely a matter of the discretion of the court. Apart from the rule that such discretion is to be exercised judicially upon all the relevant facts, no rules should be prescribed to regulate that discretion, as such rules would inevitably curtail the court's discretion and negate or erode the plaintiff's right to select his remedy.
The
English rules regulating courts' discretion to order specific performance are predicated upon that remedy's availability by way of equitable relief only; they are inappropriate to
South African law
South Africa has a 'hybrid' or 'mixed' legal system, formed by the interweaving of a number of distinct legal traditions: a civil law system inherited from the Dutch, a common law system inherited from the British, and a customary law sys ...
. The Appellate Division held, therefore, that the indiscrimate following of English cases in this regard is to be decried.
The decision of the Cape Provincial Division, in ''SA Mutual Life Assurance Society v Benson'' (granting an order of specific performance in an action for delivery of shares freely obtainable on the Stock Exchange) was by this reasoning confirmed.
See also
*
South African contract law
South African contract law is "essentially a modernized version of the Roman-Dutch law of contract",Du Plessis, et al. p.11. and is rooted in canon and Roman laws. In the broadest definition, a contract is an agreement two or more parties en ...
References
Books
* Du Plessis, Jacques, ''et al''.
The Law of Contract in South Africa'. Edited by Dale Hutchison, Chris-James Pretorius, Mark Townsend and Helena Janisch.
Cape Town
Cape Town ( af, Kaapstad; , xh, iKapa) is one of South Africa's three capital cities, serving as the seat of the Parliament of South Africa. It is the legislative capital of the country, the oldest city in the country, and the second larges ...
,
Western Cape
The Western Cape is a province of South Africa, situated on the south-western coast of the country. It is the fourth largest of the nine provinces with an area of , and the third most populous, with an estimated 7 million inhabitants in 202 ...
:
Oxford University Press
Oxford University Press (OUP) is the university press of the University of Oxford. It is the largest university press in the world, and its printing history dates back to the 1480s. Having been officially granted the legal right to print books ...
,
2010
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Cases
* ''Benson v SA Mutual Life Assurance Society'' 1986 (1)
SA 776 (A).
Notes
1985 in South African law
1985 in case law
South African contract case law
Appellate Division (South Africa) cases
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