Cancellation and anticipatory breach of contract

Authors Martin Fischer

ISSN: 1996-2177
Affiliations: Candidate for the Bachelor of Civil Law degree, University of Oxford
Source: South African Law Journal, Volume 134 Issue 3, 2017, p. 543 – 575


The decision in Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd is recognised as introducing a ‘new approach’ to repudiation and anticipatory breach of contract in South African law. In terms of this ‘new approach’, in order to determine whether or not a contracting party will be entitled to cancel a contract it must first be determined what breach of contract is predicted and then whether that breach, if it were to arise, would justify cancellation. This raises a number of issues, particularly where a delay is anticipated, and necessitates a reconsideration of the rules on cancellation for breach of contract in South African law. This contribution examines the origin and development of the right to cancel a contract on the basis of a breach in South African law to illustrate these issues. It then proposes a model for breach of contract drawing on Lord Diplock’s judgments in English law to address the uncertainty created by the judgment in Datacolor.