In South African contract law, parties are legally bound by the promises and obligations set out in their agreements. The failure to fulfil contractual obligations gives rise to disputes and necessitates the identification of appropriate remedies. While the primary remedy for breach of contract is typically monetary compensation, South African law recognises specific performance as a crucial equitable remedy, particularly in circumstances where damages are inadequate. This article critically examines specific performance, its legal foundation, procedural requirements, and inherent limitations within the South African legal framework. 

Conceptual Framework of Specific Performance 

Specific performance is an equitable remedy whereby a court compels a party to execute its contractual obligations precisely as stipulated in the contract. Unlike the award of damages, which provides monetary recompense for non-performance, specific performance mandates the actual fulfilment of the contract. This remedy is predicated on the recognition that certain contractual obligations are unique or irreplaceable, such that monetary compensation would be insufficient to achieve justice between the parties. 

The remedy finds frequent application in cases involving unique goods, real estate transactions, or closely held corporate shares, where the subject matter cannot be adequately valued in monetary terms. Its equitable nature underscores the courts’ discretion to balance the interests of the parties and to ensure that the enforcement of obligations does not result in unfair prejudice. 

Legal Requirements for Specific Performance 

South African courts will grant specific performance only under certain conditions, which reflect both substantive and procedural considerations. These requirements are as follows: 

Existence of a Valid and Enforceable Contract 
The contract must be legally valid, certain, and capable of enforcement. Courts will not compel performance under contracts that are illegal, vague, or inherently uncertain. 

Inadequacy of Damages 
Specific performance is generally reserved for situations where monetary damages are inadequate to provide complete relief. This criterion is particularly relevant where the contractual subject matter is unique or otherwise difficult to value. 

Feasibility of Enforcement 
The court must be able to supervise and enforce performance. Remedies that are practically unenforceable are unsuitable for specific performance. 

Absence of Undue Hardship 
The remedy should not impose disproportionate or unjust hardship on the party against whom it is sought. Courts exercise discretion to ensure that equitable relief is proportionate and fair. 

Good Faith and Readiness to Perform 
The plaintiff seeking specific performance must demonstrate readiness, willingness, and capacity to perform their own contractual obligations. Claims of specific performance will fail if the claimant has not acted in good faith. 

Procedural Considerations 

To obtain specific performance, the claimant must establish: 

• The existence of a valid and enforceable contract; 
• Their own readiness and willingness to perform; 
• The defendant’s capacity to perform the contractual obligations but failure to do so; and 
• The absence of any alternative legal remedy that would provide adequate relief. 

The court retains discretion in determining whether specific performance is appropriate, weighing factors such as practicality, fairness, and the proportionality of the remedy relative to the breach. 

Limitations of Specific Performance 

Despite its significance, specific performance is subject to notable limitations: 

• Impossibility of Performance 

Specific performance will not be ordered where the contract’s obligations cannot be performed due to circumstances beyond the breaching party’s control, such as the destruction of the subject matter. 

• Personal Services Contracts 

Courts are generally reluctant to order specific performance of contracts requiring personal services, such as employment agreements, due to practical difficulties and considerations of personal liberty. 

• Judicial Discretion 

Even where all requirements are met, courts may exercise discretion to deny the remedy if it is deemed inappropriate, unjust, or inequitable. 

• Defendant Defences 

The defendant may contend that monetary damages are sufficient, or that enforcement of specific performance would result in undue prejudice, unfairness, or unreasonable delay. 

Conclusion 

Specific performance is a fundamental equitable remedy within South African contract law, ensuring precise enforcement of contractual obligations. While not automatically granted and subject to judicial discretion, it provides an essential mechanism where monetary compensation is inadequate, particularly in relation to unique or irreplaceable contractual subject matter. 

For practitioners and contracting parties, an understanding of specific performance is critical, both in drafting contracts and in seeking judicial enforcement. The remedy underscores the importance of clear and enforceable contractual obligations and provides a robust framework for ensuring that contractual promises are honoured in accordance with the principles of justice and equity. 

Written by Ross Hendriks, Specialist Employment and Labour Law, SchoemanLaw Inc