CON | Case law

Question 1

Discuss Troskie v Van der Walt 1994

Answer 1

1. Played rugby for specific club
2. Player would have played for Old Grays and be employed by first appellant as farm manager
3. Contract between the parties was ambiguous and did not make sense.
4. Problems:
   a. Amateur regulations still in force
   b. Would specific performance be the most appropriate remedy in the circumstances?
   c. Problem: English Law - because in English Law, specific performance is merely secondary or equitably reedy, whereas in SA it is a primary remedy
5. Pay for play was not allowed
6. Court a quo: “No reasonable court would grant an order for specific performance of Van Der Walt’s supposed contractual obligations”
7. By implication, even if pay for play was legal, the court would still not order specific performance.
8. Wright J (full bench): “It is doubtful whether in the specific circumstances of this case an order for specific performance would ever be granted”.

Question 2

Discuss specific performance as suitable remedy

Answer 2

1. Authors opine that the remedy was not available in Roman Times. Du Plessis proves this wrong
2. It was available in sale and purchase agreements

Question 3

Discuss Santos v Igesund 2002

Answer 3

1. Coach of professional soccer club receives better offer during the term of his contract
2. “It is therefore abundantly clear that 1st respondents principal reason for leaving the applicant is a commercial one, namely that he has secured a better contract”.
3. Important: Contract provided explicitly for the remedy of specific performance in case of breach by either party
4. Court refered to Troskie
5. Decision of court:
   a. Specific performance cannot be granted:
   i. “Highly personal services”
   ii. Is the 1st respondent functioning optimally?
   iii. Relationship has deteriorated to such an extent that the working relationship cannot be amended

Question 4

What does Christie opine ito specific performance?

Answer 4

Because such a contract calls for the performance of personal services of a continuing nature and because of the personal relationship involved, there would be a constant danger of disputes arising over whether the contract was being properly performed.

Question 5

Discuss Santos v Igesund 2003

Answer 5

1. Full Bench appeal
2. Court stated that the case is not analogous to Troskie
3. Exampel of singer in Luley v Wagner
4. Appellant takes the risk of control over employee
5. Diminished relationship: Professional area wherein athletes are their own ‘products’

Question 6

In which cases has specific performance as primary remedy been established?

Answer 6

1. Benson v Mutual Life Assurance

2. Vrystaat Cheetahs v Lionel Mapoe (confirmed specific performance is a suitable remedy at breach of sports contracts)