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THE LAW OF PURCHASE AND SALE
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for specific performance (para [19]). The reference to ‘steps’
(plural) in section 19(2)(c) supports the perception that the seller
need not elect a single step and thus is allowed to indicate in the
notice an intention to take more than one step in the alternative.
Thus, an election between those alternative steps is not a
prerequisite for the thirty-day notice (paras [20]–[21]).
As to the contents of the notice under section 19(2)(c), Brand
JA held that it is peremptory for the seller to indicate what he or
she intends to do; a mere recordal of what he or she is entitled to
do is inadequate (para [22]). However, a deviation from the literal
compliance with such a statutory prescription is not fatal, as long
as the notice complies in substance with the requirements of
section 19(2)(c) (para [23], with reference to Moela v Shoniwe
2005 (4) SA 357 (SCA); Maharaj & others v Rampersad 1964 (4)
SA 638 (A); Unlawful Occupiers, School Site v City of Johannesburg
2005 (4) SA 199 (SCA)). In the present case, the following
wording of the notice was considered adequate:
‘In accordance with clause 9.1 of the deed of sale we . . . demand
from you, as we hereby do, payment of the arrear instalments . . .
within 32 days of the date of this letter. Should payment not be made
as aforesaid then and in that event, the seller shall be entitled to claim
immediate payment of the full balance of the purchase price and
interest as due by you, as well as all cost and collection commission;
or alternatively shall be entitled to cancel this contract’ (quoted in para
[5], original emphasis).
Again, the Supreme Court of Appeal’s approach is one of
substance over form.
On appeal in Van Niekerk v Favel (supra), Hurt AJA agreed with
the above decision of Brand JA. However, Hurt AJA stressed the
importance of the consumer protection role played by section 19
(paras [10]–[12]), and concluded that the purchaser to be
protected is on average vulnerable, uninformed, unacquainted
with the law, and without legal assistance (para [12]). It is thus of
great importance that the purchaser be notified in specifics of the
remedies as listed in section 19(1) that are available to the seller
(para [14]). If the seller does not seek these remedies, a notice in
terms of section 19 is not required (ibid). Section 19(2)(c) intends
that the purchaser be put in a position where the extent of his
jeopardy if he so fails to purge his default becomes clear to him
by reading the notice alone without recourse to the Act, the
contract, or legal advice (para [12]). A mere reference to a clause
in the contract, without reference to the specific available rem-