Sandown Travel (Pty) Ltd v Cricket South Africa (42317*2011) [2012] ZAGPJHC 249; 2013 (2) SA 502 (GSJ) (7 December 2012)

The case involves a dispute between Sandown Travel (the plaintiff), a travel agency, and Cricket South Africa (the defendant). In 2009, the parties entered into an agreement where Sandown Travel would provide travel services to Cricket South Africa for a fee of R97,000.00 plus VAT per month. The agreement was set to endure for two years, starting from October 1, 2009. The agreement included a provision that required written notice of termination to be given at least 6 months before the end of the contract date, failing which the contract would automatically renew for another year.

In March 2011, with no termination notice given by either party, the agreement was automatically renewed for another year until October 1, 2012. However, on April 6, 2011, Cricket South Africa purported to terminate the agreement effective September 30, 2011. Sandown Travel disputed the timeliness of this termination notice and the parties attempted to mediate the dispute without success. Cricket South Africa ceased using Sandown Travel's services on September 30, 2011, which Sandown Travel considered a repudiation of the agreement, leading to Sandown Travel accepting the repudiation on October 10, 2011.

Sandown Travel sought damages of R1.64 million from Cricket South Africa for the repudiation of the agreement. The plaintiff argued that despite initially electing to keep the contract alive, it was entitled to change its stance based on the defendant's persistent repudiation at the time of performance. The plaintiff claimed that the defendant's refusal to allow Sandown Travel to continue providing services after September 30, 2011, justified the claim for damages as a surrogate for performance.

The court considered the legal principles of repudiation, election, and the repentance doctrine in contract law. The judge found in favour of Sandown Travel, awarding damages of R1.64 million, plus interest and costs, as the defendant's actions constituted a repudiation of the agreement, and the plaintiff was entitled to claim damages as a surrogate for performance.

The core legal principle underlying the decision is that in cases of anticipatory breach or repudiation of a contract, the innocent party may initially elect to keep the contract alive but can later change their stance if the defaulting party persists in their repudiation at the time of performance. This principle, known as the repentance doctrine, allows the innocent party to reconsider their position and cancel the agreement when the defaulting party continues to breach the contract. In this case, the plaintiff, Sandown Travel, was entitled to claim damages as a surrogate for performance based on the defendant's persistent repudiation of the agreement, even after initially electing to keep the contract alive.

The court relied on the case of Myers v Abramson 1952 (3) SA 121 (C), in its reasoning process.