The debtor must be in mora

In the case of Ponisammy v Versailles Estates 1973 1 SA 372 (A), a written contract was concluded between the appellant and one Pienaar on behalf of a company that at that stage was still to be registered. The written deed of sale (contract of sale) contained the following clause:

Payment of the purchase price shall be secured by a banker’s guarantee to be furnished within thirty (30) days after approval of the diagrams of the property sold by the Surveyor-General.

The deed of sale however did not contain a cancellation clause (a clause entitling the seller to cancel the contract in the event of there being default on the part of the purchaser).

On 24 September 1970 the Surveyor-General approved the required diagram. However, the appellant was not informed thereof by the responsible surveyor until late in November 1970. This meant that the 30 days mentioned in the abovementioned clause had already expired by the time the parties heard of the approval of the diagrams.

Subsequently, the appellant’s attorney wrote a letter dated 24 November 1970 wherein 228 Van der Merwe et al 2007: 339

229 Van der Merwe et al 2007: 339 230 Van der Merwe et al 2007: 339 231 Van der Merwe et al 2007: 339 232 Van der Merwe et al 2007: 339

she exclaimed that Pienaar had to furnish the appellant with a guarantee on or before 23 December 1970. Early in December 1970, Pienaar informed his attorney, who subsequently informed the appellant, that he (Pienaar) would not be able to furnish the required guarantees before 23 December 1970.

The two parties’ legal representatives agreed that Pienaar would pay an amount of R200.00 as a deposit, and that the date before which the guarantee had to be delivered would be extended to 23 January 1971.

On the 21^st of January 1971 Pienaar informed the appellant’s legal representative that he still couldn’t deliver the guarantees, but that a company called Sapekoe (Pty) Ltd was interested in purchasing the property from him (Pienaar). The appellant’s legal representative “cancelled” the contract because of the fact that the guarantees had not been furnished within the specified time, and the appellant sold the property to a new buyer, Mr Venter. Pienaar’s legal representative said that there was no right in terms of the contract to cancel such contract, and provided the necessary guarantees, albeit late.

Pienaar also got an interdict against the appellant forcing her not to transfer the property to Mr Venter. The court a quo decided that the appellant had to pass transfer of the property to the respondent.

In the Appeal Court, the appellant contended that they had cancelled the contract of purchase because Pienaar on behalf of the Respondent had failed to furnish the banker’s guarantee provided for in the said contract within the period specified in the contract. In addition, the appellant’s attorney had not only initially agreed (on the 23^rd of December 1970, when extension was granted to Pienaar for furnishing the guarantee) to an extension of time for delivery of the banker’s guarantee, but that she had also placed the respondent in mora (if the guarantee was not furnished on or before 23 January 1971) and which would have the additional effect of a “notice of rescission” entitling the defendants to cancel the sale in the event of failure on the part of the respondent to perform.

Muller, JA exclaimed the following relevant words:

Where time is not of the essence of the contract, but one of the contracting parties elects to make it so, giving a notice of rescission (a unilateral act), he should at least take care that the notice is clear and unequivocal, so that the other contracting party is aware of the consequences of a failure on his part to perform timeously.

The court decided that whilst the appellant had indeed placed the respondent in mora, that placing someone in mora did not constitute cancellation of the contract. The court thus upheld the court a quo’s decision.

Mora ex re

It may happen that contractants do not agree on a specific time of performance. If they do, however, failure to tender performance at that moment would be prima facie wrongful. In such a case, the creditor is not required to claim performance from the debtor, because dies interpellat pro homine (literally: “the day demands from the person”). Mora that takes place in this manner is called mora ex re, meaning mora

according to the nature of circumstances. In order for mora to arise ex re a “precisely calculable date” must have been set, as was decided in the case of Van der Merwe v Reynolds 1972 (3) SA 740 (A). In the case of LTA Construction v Minister of Public Works & Land Affairs 1995 (1) SA 585 (C) the construction contract read that the contractor was entitled to final payment as soon as the engineer had certified that the work was in order. Due to the uncertainties that had to be surmounted before such a certificate could be issued, it was decided that there had been no agreement as to a

“precisely calculable day”²³³ A time will only be a “precisely calculable date” if it is not only certain that it will arrive but also when it will arrive. In the case of Repinz v Dacombe 1994 (3) SA 756 (E) the court decided that before fulfillment a debtor must indeed have certainty about the time of his performance, but that the certainty need not exist upon conclusion of the contract. Consequently, if the contract reads that the performance must be made a specific time after a certain occurrence, mora ex re can arise after that period has expired, irrespective of any uncertainty upon conclusion of the contract as to whether the occurrence will take place and if so, when it will take place.

Mora ex persona

Where a contract does not stipulate a time for performance, the debtor must usually take steps to recover the debt. The creditor must place the debtor in mora by means of a demand or notice that the debtor must perform by a certain time. The creditor thus determines the time of performance by a unilateral juristic act. The purpose of the demand is to inform the debtor exactly when he must perform. Mora that occurs by way of demand is called mora ex persona, because it requires an act by the creditor. A demand (interpellatio) must indicate the debt that must be discharged and set a specific time for performance, which is reasonable in the circumstances. It must contain an unequivocal and unconditional claim that the creditor desires performance. In the case of a reciprocal contract the demand must, where applicable, contain a tender of performance by the creditor.

The reasonableness of the time for performance set in a demand must be determined with reference only to the circumstances affecting the time of performance of which the parties were either aware when the contract was concluded or which they could at that moment have reasonably foreseen. A demand which does not expressly lay down a time for performance may possibly be interpreted to mean that performance is required immediately. Such a demand may well be reasonable in the case of a monetary debt, but not necessarily in all other instances.

In the case of Willowdene Landowners v St Martin’s Trust 1971 (1) SA 302 (T), no time was stipulated for performance and no right to cancel included. However, the one party could place the other part in mora by giving the opposite party a reasonable time within which to perform and that, if within that reasonable time performance was not accomplished, a right to cancellation ensued. It was decided that “the time given for performance must be reasonable in the circumstances. If this is not the case, the notice is

233 Van der Merwe et al 2007: 341 fn 88

of no effect.”²³⁴ In this case, a period given by one contractant to the other from 26 March 1969 until 30 June 1969 to perform was judged by Claassen J to be insufficient and therefore the mora was ineffective.

The demand or notice by the creditor to perform may take the form of:

- Interpellatio iudicialis: Formal demand by way of summons, or

- Interpellatio extra iudicialis: Informal demand by way of letter, telephone, sms, etc.