Conduct Constituting Anticipatory Breach of Contract

Authors Martin Fischer

ISSN: 1996-2177
Affiliations: Teaching Assistant, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 133 Issue 4, 2016, p. 820 – 852


This contribution considers the development of the doctrine of anticipatory breach of contract in South African law culminating in the case of Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd. Although the decision has authoritatively acknowledged important developments in the South African law on anticipatory breach, its implications have not yet been fully recognised, and certain developments proposed in Datacolor are potentially open to criticism. This article argues that the confirmation in Datacolor that repudiation is an immediate breach assessed using an objective test creates an entirely objective unified basis for anticipatory breach in South African law that is to be welcomed. However, it is also argued that the further developments suggested in Datacolor — that any predicted non- or malperformance should amount to an anticipatory breach and that a claim for damages should arise immediately upon the breach — are not desirable developments, and that these obiter comments should not be followed.