Specific performance in South African law

Both traditions have to some extent been amalgamated in modern South African law. Its historical starting point, as we have seen, was a marked trend in favour of specific performance amongst the authori­tative Roman-Dutch writers.

Nevertheless, in the course of the 19th century, rules and criteria of the English common law crept in "insidiously and, as it were, almost by accident",²³³ so much so that the grounds for refusing specific performance listed by some academic writers in the early part of the 20th century were virtually the same as those applied by English courts.²³⁴ In Haynes v. King Williamstown Municipality,"^ for many years the leading case, it was held that the court has a discretion to refuse specific performance, and that such refusal would be appropriate,

"(a) where damages would adequately compensate the plaintifr; (b) where it would be difficult for the court to enforce its decree; (c) where the thing claimed can readily be bought anywhere; (d) where specific performance entails the rendering of services of a personal nature...; (e) where it would operate unreasonably harshly on the defendant, or where the agreement giving rise to the claim is unreasonable, or where the decree would produce injustice or would be inequitable under all the circumstances".^[4023]

Only in the 1980s have the courts begun to reassess these principles and to shed the limitations of specific performance derived from English practice.^{[4024] [4025] [4026] In Benson v. SA Mutual Life Assurance Society2™ the Appellate Division firmly and authoritatively set its face against the continuation of a reception process which disregarded the fundamental difference in principle between Roman-Dutch and English law. The right of every plaintiff to claim specific performance has, once again, become "the cornerstone"234 of South African law. It is the primary and regular remedy. To this extent, therefore, the civilian principle has prevailed. Unlike their modern continental counterparts, however, the courts do retain a discretion to refuse specific performance. This discretion obviously has its roots in English Equity: but it is no longer subject to any rules save that it be judiciously excercised in order to prevent injustice.[4027] In particular, therefore, South African law has freed itself from the restrictive categories developed by the English courts.[4028]}