A.

SECTION A
A.1. QUESTION 1
A.1.1.
Yes there is a valid contract of sale between Jennifer Harris and Grant Adams.

They are both over the age of 18 and are natural persons therefore they both have
contractual capacity

There is legality as the sale is not contrary to any legislation or public policy or good
morals and Grant is the owner of the motor cycle.

There is physical possibility in that it is absolutely objectively possible for both to perform
their duties in respect of the sale and that performance is clearly defined in that Grant will
sell his motor cycle to Jennifer and Jennifer will pay Grant R20, 000.00 for it. There is
also a clear date of when delivery will take place and when payment will be made.

There is consensus as Jennifer made an offer to purchase the motor cycle from Grant for
R20, 000.00 and Grant has accepted. They both have accepted the delivery date and
purchase price when they both signed the contract.

There are formalities in that the contract is in writing and both parties signed the contract

Further to this the specific elements required for a purchase and sale contract are also
adhered to in that there is an intention to buy and sell which is specifically present and
the object of sale is clearly determinable, the motor cycle (however I do feel that the
description of motor cycle is very vague and could lead to unnecessary confusion as
there is no mention of colour, make, model or year model, engine capacity or even a
photo) and the price has clearly been determined, R20, 000.00

A.1.2.
Between Jennifer and Grant there is a credit sale. There is an intention to pass and
receive ownership between Grant and Jennifer. Grant is the owner of the motor cycle.
Therefore ownership transfer occurs upon delivery of the motor cycle to Jennifer on 10
January 2012.

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 Then between Jennifer and Pauline there is a cash sale. Although the contract between
Jennifer and Pauline is concluded before Jennifer has ownership of the motor cycle, it is
still a valid contract as ownership is not a requirement to sell or concluding contract for
purchase and sale. There is an intention to pass or receive ownership between Jennifer
and Pauline. Jennifer has ownership of the motor cycle as of 10 January 2012, so when
Jennifer delivers the motor cycle on 15 January 2012 the ownership of the motor cycle
passes from Jennifer to Pauline. Therefore on 16 January 2012 Pauline Scott is the
owner of the motor cycle.

A.1.3.
The event that leads to Grant’s accident is a force majeure event as the fault of the
accident was not Grant’s or Jennifer’s but rather the drunk driver of the other car that hot
grant. In light of this there is no fault of any party to the contract.
Since the signing of the contract was on 01 January 2012 and Grant was on his way to
deliver the motor cycle to Jennifer on 10 January, so at this point ownership still had not
passed from Grant to Jennifer, and Grant was involved in an accident which makes it
impossible for Grant to deliver the motor cycle due to a force majeure event, then
Jennifer carries the risk of damage/loss to the motor cycle if the contract is perfecta.

There is no suspensive condition in the contract between Grant and Jennifer. The price is
clearly determined and the goods are determinable so the contract is perfecta. Therefore
Jennifer carries the risk of damages/loss to the motor cycle.

A.2. QUESTION 2
A.2.1.
Default by Creditor – The Kruger National Park (KNP) has an obligation to allow Peter
Parker access to the Park which they failed to do preventing him from completing the
Works. Kruger National Park (KNP) in this case is the Creditor of the Works and therefore
default by Creditor breach of contract
Prevention of Performance – The Kruger National Park failed to allow Peter Parker
access to the park preventing him from completing the works. This makes it impossible
for Peter to complete his obligations therefore prevention of performance breach of
contract.

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 A.2.2.
Default by Debtor – The Kruger National Park is the Debtor with regards to payment and
have an obligation to pay Peter Parker which they failed to do therefore default by Debtor
breach of contract
A.2.3.
Default by Debtor – Peter Parker is the Debtor with regards to the Works as he has an
obligation to deliver the plans, and he failed to deliver the plans therefore default by
Debtor breach of contract
A.2.4.
Repudiation – Peter Parker has clearly communicated to the Kruger National Park that he
will be unable to perform his contractual obligations so therefore repudiation breach of
contract
A.2.5.
Prevention of Performance – Peter Parker has provided the incorrect banking details in
the contract. Peter has made it impossible for the Kruger National Park to carry out their
performance of paying Peter on time therefore Prevention of Performance Breach of
Contract.
A.2.6.
Positive Malperformance – Peter Parker has an obligation to provide plans for a bridge
over the Sabie River. Peter Parker has provided plans for a bridge spanning the incorrect
river. This is a defective performance therefore positive malperformance breach of
contract.

A.3. QUESTION 3

AGREEMENT

This Agreement made the 13th day of February 2013

Between

Thomas James Baines

Identity Number 7907185115085
Married out of Community of Property

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 (hereinafter called “the Contractor”) of the one part and

Contracted by (prove that he is contracted in and not an employee)

Roads Unlimited (Pty) Ltd

Registration number 2001/005869/07
Herein represented by Donovan Phillip Richardson
Identity Number 7907185115085
Duly authorised thereto by a resolution by the board of directors.

(hereinafter known as “the Client”) of the other part.

Whereas the Client requires that certain Services should be performed by the Contractor, as
an independent contractor, namely: to design a new bridge, including all support structures,
which is to be constructed over the Sable River mountain pass.

The design will have a completion date of 18 July 2013. The Client shall provide the
Contractor with access to site from 18 February 2013 to 28 February 2013 to complete final
measurements for the design.

This Agreement will have a Lump Sum Value of R 2,500,000.00 ZAR and the Client has
accepted a proposal by the Contractor for the performance of such services.

Particular conditions of contract

1) Access Suspensive condition

i) Should the Client fail to provide access to site to the Contractor, the Contractor’s
obligations in terms of this Agreement will be suspended until such time as
access is granted and the required extension of time will be added to the project
period.
Access Resolutive time period
ii) Should the Client fail to provide the Contractor with access to site for the
Contractor to conduct final measurements past the contractual completion date

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 namely 18 July 2013 then the Agreement summarily may be terminated by the
Contractor on written notice to the Client.

2) Termination Cancellation clause

If any Party to this Agreement breaches a material obligation in terms of the Agreement,
the other Party shall give the defaulting Party written notice of the breach and afford the
defaulting Party 14 (fourteen) calendar days to remedy the breach. Where the breach is
not so remedied, the aggrieved Party may terminate the Agreement immediately.

3) Penalties Penalty clause in favour of Client

Should the Contractor fail to deliver the final design by 18 July 2013, the Contractor will
incur penalty costs of R10, 000.00 (ten thousand rand) per calendar day of delay. The
Client may elect to claim the agreed penalty, or to claim common law damages. The Client
may retain any drawings, partial designs, and electronic communications and / or any
other performance provided by the Contractor in terms of this Agreement, continue to
enforce the further performance of the Agreement, without prejudice to the Client’s right to
claim the agreed penalty.

4) Force Majeure
i) For the purposes of this Agreement “Force Majeure” shall mean an exceptional
circumstance or event arising which is beyond a Party’s control, which such Party
could not reasonably have provided against before entering into the contract and
which such Party could not reasonably have avoided or overcome and which is
not substantially attributable to the other Party.

ii) If a Party will be or is prevented from performing any part of its obligations under
the contract by Force Majeure, then the relevant Party shall give notice to the
other Party of the circumstance or event constituting the Force Majeure and shall
specify the obligations, the performance of which will be or is prevented. The
notice shall be given in writing within 14 calendar days after the Party became
aware, or should have become aware, of the relevant circumstance or event
constituting Force Majeure.

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 iii) The Party shall, provided a written notice was given, be excused from performing
such obligations for so long as such Force Majeure prevents that Party from
performing.

iv) Notwithstanding any other provision of this Clause, Force Majeure shall not apply
to either Party’s obligations to make payment to the other Party in this Agreement.

v) Each Party shall at all times use all reasonable endeavours to minimise any delay
in the performance of the Agreement caused by Force Majeure.

vi) A Party shall give notice to the other Party when it ceases to be affected by Force
Majeure.

vii) If the Contractor is prevented from performing any of its obligations under the
Contract by Force Majeure of which written notice has been given and suffers
delay and/or incurs cost by reason of such Force Majeure, the Contractor shall be
entitled to claim an extension of time and / or additional cost occasioned by such
delay.

viii) If the execution of substantially all the Works in progress is prevented for a
continuous period of 60 (sixty) calendar days by reason of Force Majeure of which
written notice has been given, or for multiple periods which total more than 90
(ninety) calendar days due to the same notified Force Majeure, then either Party
may give to the other Party a written notice of termination of the Contract. In this
event, the termination shall take effect 7 (seven) calendar days after the written
notice is given.

ix) Upon such termination, both Parties shall agree the final value of the work done
and, if necessary, pay any outstanding amounts due.

x) Notwithstanding any other provision of this clause, if any circumstance or event

outside the control of the Parties (including but not limited to Force Majeure)
arises which makes it impossible or unlawful for either or both Parties to fulfil its or
their contractual obligations or which, under the law governing the Contract,

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 entitles the Parties to be released from further performance of the Contract, then
upon written notice by either Party of such circumstance or event, the Parties
shall be discharged from further performance without prejudice to the rights of
either Party in respect of any previous breach of contract, and the sum payable by
the Client to the Contractor shall be the same as would have been payable under
Sub-Clause 5.ix

5) Amendments Clause to amend the contract

Any and all changes or amendments to the Agreement, including to this clause, must be in
writing and signed by both parties hereto

Signed at _____________________________ on ___________________________

For: Thomas James Baines

Signatory: ____________________________
Capacity: ____________________________
Authority: ____________________________

Signed at _____________________________ on ___________________________

For: Roads Unlimited (Pty) Ltd

Signatory: ____________________________
Capacity: ____________________________
Authority: ____________________________

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 B. SECTION B
B.1. QUESTION 1
B.1.1.
The Control Test
The Organisation Test
The Dominant Impression Test
The Economic Capacity Test / Productivity Capacity Test
B.1.2.
This is an agreement between 2 parties, in which the employee agrees to perform certain
duties for the employer under the control of the employer for a specified or unspecified
period
B.1.3.
Constructive dismissal is when a situation arises in the workplace, that has been created
by the employer, and which makes the continuation of the employment relationship
intolerable or unbearable for the employee which is so serious that the employee has no
other option left but to resign.
B.1.4.
If an employer has dismissed several employees all for the same or even similar reasons
and then later offers re-employment to some of those employees, the employees who did
not get offered re-employment have technically been dismissed under the selective re-
employment dismissal term.
B.1.5.
Black people, women and people with disabilities
B.1.6.
Affirmative action, inherent job requirement or based on age if the employee has reached
the normal or agreed retirement age
B.1.7.
Poor work performance and disability
B.1.8.
Misconduct such as an act of violence or damage to property or stealing
Operational reasons such as when a strike continues for a long period and the employer
suffers economically and will have to retrench employees

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 B.1.9.
The principle of no work no pay will apply and therefore if employees cannot work due to
the strike or lock-out they will not get paid
B.1.10.
Severance pay is at least one week’s salary for every full year worked or year of service

B.2. QUESTION 2
B.2.1. 2
B.2.2. 4
B.2.3. 45
B.2.4. 2
B.2.5. 21
B.2.6. 6
B.2.7. 2
B.2.8. 4
B.2.9. 3
B.2.10. 0

B.3. QUESTION 3
B.3.1.
Michelle has been subject to unfair labour practice in that she was not consulted or informed
as to why she was being demoted. Michelle has suffered on occupational detriment in
contravention of the protected disclosures act, 200 (act No.26 of 2000), on account of her
having made a protected disclosure defined in that act.

She can try and follow her internal company policy in terms of lodging a grievance but more
than likely will need to approach the CCMA (Commission for Conciliation, Mediation and
Arbitration). The CCMA’s remedy would be to rectify the unfairness that Michelle has
experienced by ordering that she have her old job back.

B.3.2.
If Michelle had been dismissed instead of demoted this would be an automatic unfair
constructive dismissal and would be discrimination. Michelle could go straight to the CCMA
and inform them that she had been dismissed after she had made a protected disclosure

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 defined in the protected disclosures act, 200 (act No.26 of 2000). The CCMA can order, upon
finding in favour of Michelle, the company to pay a maximum penalty of 2 years’ salary to
Michelle

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