Kragga Kamma Estates CC and Another v Flanagan is an important case in the South African law of contract, an appeal from a decision in the South Eastern Cape Local Division by Jansen J. It was heard in the Appellate Division on August 19, 1994, with judgement handed down on September 29. The presiding officers were EM Grosskopf JA, Nestadt JA, Kumleben JA, Howie JA and Nicholas AJA. The appellants' attorneys were Tobie Oosthuizen, Port Elizabeth, and Webbers, Bloemfontein. The respondent's attorneys were Jankelowitz, Kerbel & Schärges, Port Elizabeth, and Lovius-Block, Bloemfontein. HJ van der Linde (with him MPQ Spruyt) appeared for the appellants; JRG Buchanan SC for the respondent.
The case concerned, in the first place, the remedy of repudiation for breach of contract. The purchaser had failed to pay a portion of the purchase price in terms of the deed of sale. The seller alleged that such non-payment constituted repudiation, accepted by the seller. Failure to pay obviously constituted breach of contract in light of the requirement in the contract in question that payment be made on signature of the agreement. The court assumed such breach to constitute repudiation. The seller, however, only purported to cancel the contract more than two years after the conclusion of the agreement, and after having accepted monthly payments on the balance of the purchase price. In such circumstances, the seller was not summarily entitled to accept repudiation and cancel the contract.
In the second place, the case concerned the question of when a party is or is not in mora, specifically mora ex persona. The demand for payment was contained in the pleadings in the case. This, the court found, amounted to interpellatio iudicialis and was not per se impermissible. The demand, however, specified that payment was to be made "within a reasonable period of time," and was preceded by words "in the event that the [...] Court should find that the [seller] intended to sell the property to the [purchaser]." Such a demand, being subject to an uncertain future event, was plainly conditional and not capable of placing the purchaser in mora.
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