A comparative evaluation of the judicial discretion to refuse specific performance

[摘要] ENGLISH ABSTRACT: This thesis examines the contractual remedy of specific performance in South Africanlaw. It looks closely and critically at the discretionary power of the courts to refuse toorder specific performance. The focus is on the considerations relevant to the exerciseof the judicial discretion.First, it emphasises the tension between the right and the discretion. It is argued that itis problematical for our courts to refuse to order specific performance in the exercise oftheir discretion. The underlying difficulty is that the discretion of the court to refusespecific performance is fundamentally in conflict with the supposed right of the plaintiffto claim specific performance. The thesis investigates the tenability of this open-endeddiscretionary approach to the availability of specific performance as a remedy for breachof contract.To this end, the thesis examines less complex, more streamlined approaches embodiedin different international instruments. Comparison between different legal systems isalso used in order to highlight particular problems in the South African approach, and tosee whether a better solution may be borrowed from elsewhere.An investigation of the availability of this remedy in other legal systems and internationalinstruments reveals that the South African approach is incoherent and unduly complex.In order to illustrate this point, the thesis examines four of the grounds on which ourcourts have refused to order specific performance. In the first two instances, namely,when damages provide adequate relief, and when it will be difficult for the court tooversee the execution of the order, we see that the courts gradually attach less or evenno weight to these factors when deciding whether or not to order specific performance.In the third instance, namely, personal service contracts, the courts have at times beenwilling to grant specific performance, but have also refused it in respect of highlypersonal obligations, which is understandable insofar as the law wishes to avoid forcedlabour and sub-standard performances. The analysis of the fourth example, namely,undue hardship, demonstrates that the courts continue to take account of the interests of defendants and third parties when deciding whether or not to order specificperformance.This study found that there are certain circumstances in which the courts invariablyrefuse to order specific performance and where the discretionary power that courts haveto refuse specific performance is actually illusory. It is argued that our law relating tospecific performance could be discredited if this reality is not reflected in legal doctrine.Given this prospect, possible solutions to the problem are evaluated, and an argumentis made in favour of a simpler concrete approach that recognises more clearly-definedrules with regard to when specific performance should be refused in order to providecoherency and certainty in the law.This study concludes that a limited right to be awarded specific performance may bepreferable to a right which is subject to an open-ended discretion to refuse it, and thatan exception-based approach could provide a basis for the simplification of our lawgoverning specific performance of contracts.

[发布机构] Stellenbosch University