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Chapter 5 BREACH OF CONTRACT
INTRODUCTION
The literature reviewed revealed no systematic references to breach of contract and the remedies in indigenous legal systems within a theoretical framework (cf Schapera 1965:150; Pauw 1985:114; Strydom 1985:520; Prinsloo & Vorster 1990a:13; Whelpton 1991:139).The Swazi view the consequences rather than the actual ‘breach of contract’ as the most important aspect thereof. The serious and detrimental effects for the whole community are regarded as a crime. For this reason, then, great importance is placed on the parties who enter into a contractual relationship and all efforts are made to resolve a dispute as soon as possible (cf Whelpton 1991:139).The perpetuation of harmony through the speedy resolution of disputes is very important to the Swazi. Although there is concern for justice to the individual, it must yield to the greater interest of the group as a whole in preserving amicability between its members (cf Walker 1969:71). Consequently, in a case of breach of contract, the endeavoured is to restore each of the parties to the position they were in before entering into the contract, rather than the position they would have been in if the contract had been executed. When given a choice between awarding damages for lost expectations and damages to cover out-of-pocket losses, the Swazi courts invariably choose the latter for the claimant will not be any worse off than before the contract was formed and will be compensated for any actual harm (cf Walker 1969:71).According to Walker (1969:71), “this approach is thought to remove the claimant’s basis for complaint by restoring him to his pre-contract status while avoiding any lingering animosity on the part of the defendant which would result from a more excessive award.” The nature of contract remedies, therefore reflects the desire for amicable settlement. The Swazi consider an award of damage for lost expectation unnecessary, and perhaps harmfully excessive. According to Whelpton (1991:140), the Bakwena of South Africa regard breach of contract as similar or equal to non-performance; in other words, to default on an undertaking to perform or to perform fully (negative and positive performance). Due to the concrete nature of the law of contract, both forms of performance would only be possible if a contract already existed; that is, if one of the parties had performed in terms of the contract. In addition to non-performance, repudiation and impossibility of performance are also forms of breach of contract, referred to as ‘kwephula sivumelwano’ among the Swazi. Both these forms of breach of contract are known to the Bakwena of South Africa (Whelpton 1991:141). Repudiation occurs when a contracting party refuses to meet his contractual obligations. An example of impossibility of performance is when it is objectively or subjectively impossible for one of the parties to perform in terms of the agreement. In the case of breach of contract, the aggrieved party may sue the debtor. The creditor does not need to act immediately if the debtor does not honour his obligations. He may continue to confirm his rightful claim to his obligatory rights by means of periodic demands. The debtor must be given a reasonable period to perform and great patience is to be shown. Should the debtor’s failure to perform persist, the creditor may take him to the chief’s court and institute an action for the rendering of the performance or, upon default, claim the return of the performance delivered. No consequential damage can be claimed. The aggrieved party may, however, be able to claim compensation for expenses incurred if that can be proven (cf Whelpton 1991:149-150). Once a contract has been concluded amongst the Swazi, a relationship of debt is created between the contracting parties. A debt must be paid on demand, or at the time agreed upon, and remains payable, no matter how long ago it was incurred. Prescription is therefore unknown in Swazi law and custom. The Swazi say: ‘licala aliboli’, meaning “a debt does not decay”.
DIFFERENT FORMS OF BREACH OF CONTRACT
The various forms of breach of contract are discussed below.
Non-performance
Failure to perform among the Swazi can be compared to the form of breach of contract known in western legal systems as mora debitoris. According to De Wet and Yeats (1978:142), mora debitoris is when a debtor drags his feet in meeting his obligations. Prinsloo and Vorster (1990a:14) give the following example among the Batswana of the North West Province: group A enters into an agreement with group B in terms of which group B undertaker to thatch group A’s building with thatching grass in return for a heifer. The agreement requires that the work be done before the rains, which are almost at hand. If B fails to commence the work within a reasonable time after reaching agreement, then A can pull out of the agreement and advise B accordingly, as at that stage there was only an agreement from which no contractual liabilities ensued. The same example was put to the Swazi panel of experts and they agreed with this conclusion of the Tswana. According to the Swazi panel of experts, the parties must perform simultaneously. They say: ‘tandla tiyagezana’, meaning “hands wash each other”. The Bakwena of South Africa refer to this requirement as ‘mabogo dinku athebana’, meaning “the sheep wash each other’s hands” (Whelpton 1991:142). The parties could also agree that one of them may perform at a later stage. Usually a specific day is determined for performance, although this need not be so. Should a party neglect to perform on the specifically agreed day, he is technically guilty of breach of contract. It is not customary for the creditor to act immediately. The creditor is expected first to remind the debtor of his obligation. The Swazi say: ‘kukhumbuta’, meaning “to remind him”. The Bakwena of South Africa refers to it as ‘go gakolola’ (Whelpton 1991:142). A court will not give any relief to a creditor if he has not first demanded performance from the debtor, even though a specific day was determined for performance. Should the debtor then continue to refuse to perform, the creditor can approach the court for assistance. Should no specific date be determined for performance, reasonable time must elapse before a party can demand performance (cf Whelpton 1991:142). Schapera (1970:244) found that the Batswana of Botswana regard one year as a reasonable time. If performance has not taken place after a reasonable time, the creditor must then demand that the debtor perform (gakolola). Should the debtor continue to remain in default, the creditor, together with his family members must go to the debtor and, in the presence of the debtor’s family, request that he meet his obligations. If, after this process, the debtor continues to be in default, the creditor may approach the court for relief. The Swazi concurred with this viewpoint of the Batswana. Omission or failure to perform in terms of an agreement can be compared to what is understood as defective performance in western legal systems. In Sweet v Ragergahara ((1978) (1) SA 311 (D) 138c), performance in terms of an agreement is defined as follows: “Defective performance relates to timeous performance not in accordance with the terms of the agreement”. Prinsloo and Vorster (1990 a:14) give the following example with regard to the Tswana of the North West Province: ‘Where group B completed the work but the workmanship was shoddy and the roof was not watertight, group A could demand specific performance that is proper performance, before they delivered the heifer to group B. If group B refused to perform properly, group A could claim compensation for the cost of labour required to correct the defect. Inadequate performance might also entitle the creditor to withdraw from the contract in appropriate circumstances and demand return of his performance in addition to claiming any damages for any loss that resulted from the breach’.
A similar example was given to the Swazi panel of experts and they came to the same conclusion. It would thus appear that the Swazi also acknowledge defective or inadequate performance as a form of breach of contract. If the creditor is also in breach, he will not immediately take action against the debtor, but will first give the debtor the opportunity to remedy the inadequate performance.
Repudiation
This form of breach of contract can also be referred to as refusal or negation. Amongst the Bakwena of South Africa, breach of contract occurs if the existence of a contract is denied, or if the terms of a contract are disputed when the other party has already performed (Whelpton 1991:145). Prinsloo and Vorster (1990a:14) also identified repudiation as a form of breach of contract among the Batswana of the North West Province, and point out that since contractual liability is not based on a mere agreement, repudiation of a promise before performance does not amount to breach of contract. The Swazi panel of experts was in agreement with this finding of Prinsloo and Vorster.
Among the Swazi, contractual obligations are based on an agreement between the parties, but liability arises only after performance by one of the parties, in accordance with the agreement. A mere agreement does not give rise to liability to perform. An agreement must be followed by actual and concrete performance in order to establish contractual liability. Until promises to perform are carried out, no remedy is available if one party repudiates the agreement, known to the Swazi as ‘kuphuka sivumelwano’. They say: ‘Umuntfu ulala agucuka’, meaning “a person changes his/her mind” or ‘litsemba alibulali umganga kudliwa bafati’, meaning “hope does not kill”.
Impossibility of performance
As already stated, performance must be possible when an agreement is concluded. Should performance become impossible after conclusion of the contract, due to the fault of any of the parties, the Swazi regard it as breach of contract. They refer to it as ‘kungeke kwendeke’. This was also found by Whelpton (1991:146) among the Bakwena of South Africa. Prinsloo and Vorster (1990a:14) made use of the following example to explain impossibility of performance: “in the event that group B arrives a few days after the agreement was reached with grass to begin thatching and group A pleads inconvenience and requires them to return later and this is repeated until the rains come and the thatching grass that was left at group A’s site is damaged, group B might withdraw from the contract on the ground of group A’s prevention of the work”. They concluded that the impossibility performing due to the fault of any of the parties, is a form of breach of contract. This was confirmed by the Swazi panel of experts with regard to the position among the Swazi.
Acknowledgements
Summary
Key terms
Contents
Map of the studied people
Chapter 1 ORIENTATION
1.1 INTRODUCTION
1.2 STATEMENT OF THE PROBLEM
1.3 LEGAL PLURALISM IN THE KINGDOM OF SWAZILAND
1.4 PREMISES, PRINCIPLES AND PARAMETERS OF THE RESEARCH
1.5 METHODOLOGY AND STRATEGY
1.6 THE FIELD RESEARCH
1.7 THE SWAZI IN THE KINGDOM OF SWAZILAND
1.8 CHARACTERISTICS OF SWAZI LAW AND CUSTOM
1.9 THE TRADITIONAL SWAZI SYSTEM OF GOVERNANCE
1.10 THE SWAZI SOCIAL ORDER
1.11 OUTLINE OF STUDY
1.12 CONCLUSION
Chapter 2 THE RECORDING AND CODIFICATION OF INDIGENOUS LEGAL
2.1 INTRODUCTION
2.2 THE NEED FOR RECORDING
2.3 CODIFICATION OF INDIGENOUS LEGAL SYSTEMS
2.4 CONCLUSION
Chapter 3 CONTRACTS IN INDIGENOUS LEGAL SYSTEMS: A THEORETICAL PERSPECTIVE
3.1 INTRODUCTION
3.2 CONTRACTS IN TERMS OF INDIGENOUS LEGAL SYSTEMS
3.3 THE NATURE OF AN INDIGENOUS CONTRACT
3.4 THE CLASSIFICATION OF CONTRACTS
3.5 THE ROLE OF INDIGENOUS CONTRACTS
3.6 THE SOCIAL DIMENSION OF INDIGENOUS CONTRACTS
3.7 DISPUTE SETTLEMENTS
3.8 THE PRIMARY FUNCTION OF INDIGENOUS CONTRACTS
3.9 THE EFFECT OF CHANGE ON THE INDIGENOUS LAW OF CONTRACT
3.10 A HOLISTIC PERSPECTIVE ON CULTURAL ASPECTS
3.11 CONCLUSION
Chapter 4 THE REQUIREMENTS FOR ESTABLISHING A CONTRACT IN TERMS OF SWAZI LAW AND CUSTOM
4.1 INTRODUCTION
4.2 CONSENSUS
4.3 PERFORMANCE MUST BE POSSIBLE
4.4 PERFORMANCE MUST BE DETERMINABLE
4.5 THE TRANSACTION, PERFORMANCE AND PURPOSE MUST BE LAWFUL
4.6 PERFORMANCE OR PARTIAL PERFORMANCE MUST BE DELIVERED
4.7 THE PARTIES MUST HAVE CAPACITY
4.8 FORMALITIES REQUIRED TO BE FULFILLED
4.9 CONCLUSION
Chapter 5 BREACH OF CONTRACT
5.1 INTRODUCTION
5.2 DIFFERENT FORMS OF BREACH OF CONTRACT
5.3 REMEDIES FOR BREACH OF CONTRACT
5.4 CONCLUSION
Chapter 6 THE TERMINATION OF CONTRACTS
6.1 INTRODUCTION
6.2 PRESCRIPTION
6.3 SET-OFF
6.4 PERFORMANCE
6.5 RELEASE (kukuhulula)
6.6 NOVATION
6.7 SETTLEMENT
6.8 MERGER (confusio)
6.9 CONCLUSION
Chapter 7 SPECIFIC CONTRACTS
7.1 PERMANENT EXCHANGE OF GOODS AND SERVICES
7.2 THE SALE AGREEMENT
7.3 RENDERING OF SERVICES
7.4 THE EXCHANGE AGREEMENT
7.5 GOODS GIVEN ON LOAN FOR CONSUMPTION
7.6 DONATION
7.7 MARRIAGE CONSIDERATION (emalobolo)
7.8 CONCLUSION
Chapter 8 SPECIFIC CONTRACTS
8.1 NON-PERMANENT EXCHANGE OF GOODS, INCLUDING BAILMENT AND MANDATE
Chapter 9 SPECIFIC CONTRACTS
9.1 CONTRACTS WHICH INFLUENCE THE STATUS OF PARTIES
Chapter 10 SUMMARY AND RECOMMENDATIONS
10.1 INTRODUCTION
10.2 THE ARTICULATION AND ENFORCEMENT OF A HUMAN RIGHTS CULTURE IN THE KINGDOM OF SWAZILAND
10.3 THE AFRICAN WAY OF ACKNOWLEDGING AND PROTECTING HUMAN RIGHTS
10.4 THE COMPATIBILITY OF SWAZI LAW AND CUSTOM WITH THE NORMS OF NATIONAL AND INTERNATIONAL LAW
10.5 THE HORIZONTAL APPLICATION OF FUNDAMENTAL RIGHTS BY THE COURTS
10.6 THE ROLE OF THE LEGISLATOR AND COURTS
10.7 THE FUTURE OF SWAZI LAW AND CUSTOM
10.8 LEGAL DOMAINS TO BE ADDRESSED: ILLUSTRATIVE EXAMPLES
10.9 CHANGE AND LEGAL VALUES
10.10 THE DISTINCTIVENESS OF THE LAW OF CONTRACT OF THE SWAZI IN THE KINGDOM OF SWAZILAND
10.11 LEGAL PRINCIPLES AND PARADIGM
10.12 INDIGENOUS CONTRACT AND INDIVIDUALISM
10.13 RECORDING AND CODIFICATION
BIBLIOGRAPHY
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THE INDIGENOUS LAW OF CONTRACT WITH PARTICULAR REFERENCE TO THE SWAZI IN THE KINGDOM OF SWAZILAND
