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Approbating and reprobating in South African law refers to the prohibition of a party attempting to elect two mutually exclusive positions.  Put another way, it refers to a party approving and rejecting a course of action generally at the same time or unlawfully one after another.  Approbating and reprobating is often referred to as legal doctrine, meaning it is formulated through the court decisions, much like the idea of stare decisis.  Although not technically considered common law, it is developed in the same way carrying the same, more or less, legal authority.

 

Perhaps where this concept plays its most prominent role in the South African context is with regard the remedies available to a party. 

 

In 1912, the Supreme Court of Appeal in Hlatswayo v Mare and Deas[1], dealing with the doctrine of election of remedies stated:

 

“At bottom the doctrine is based upon the application of the principle that no person can be allowed to take up two positions          inconsistent with one another, or as is commonly expressed to blow hot and cold, to approbate and reprobate."

 

In 1921, the Supreme Court of Appeal again referred to this doctrine in Bowditch v Peelmond Magill 1921 AD 561:

 

"A person who has been induced to a contract by a material and fraudulent misrepresentation of the other party, may either stand by the contract or claim rescission. (Voet, 4.3 see 3, 4 7). It follows that he must make his election between those two inconsistent remedies within a reasonable time after knowledge of the deception. And the choice of one necessary involves the abandonment of the other. He cannot both approbate and reprobate".

 

In 1929, the Cape Provincial Division echoed the Supreme Court in Segal v Mazzarr 1929 CPD 63, without referring to the phrase approbate and reprobate, but nevertheless captured the very essence of the doctrine:

 

"Now, when an event occurs which entitles one party to a contract to refuse to carry out his part of the contract, that party has the choice of two courses. He can either elect to take advantage of the event or can elect not to do so. He is entitled to a reasonable time in which to make up his mind, but when once he has made his election he is bound by that election and cannot afterwards change his mind ...If, with the knowledge of the breach,  he does an unequivocal act which necessarily implies that he has made his election one way, he will be held to have made his election that way".

 

This doctrine has found footing in more recent cases such as Chamber of Mines of South Africa v National Union of Mineworkers and Another 1987 (1) SA 6698 (A) at 690 0-G and Merry Hill (PTY) v Engelbrecht 2008 (2) SA 544 SCA, at par 15.  The history of this doctrine was set out relatively clearly in SPF and Another v LBCCT/A LB and Another (26492/13) [2016] ZAGPPHC 378 (20 April 2016).  And again, in Ekurhuleni West College v Segal and Another (26624/2017) [2018] ZAGPPHC 662 (29 August 2018) where the court addressed the applicant’s flip-flopping behavior.  The court summarized the doctrine, as follows:

 

“The applicant’s decision to arbitrate is a question of fact.  The applicant is bound by the terms of the contract.  The applicant cannot approbate and reprobate or ‘blow hot and cold’.  Once a litigant elected to treat a decision as one of being capable of being referred to arbitration, he is bound to treat it as a decision which is binding and enforceable until revised by an arbitrator.  A party cannot seek to approbate those parts of which they like, and reprobate those parts of it which they do not.  This amounts to an abuse of the powers of the court…. Having made its choice, it is not now open to the applicant to change its mind and to seek to enforce two mutually exclusive remedies simultaneously”

 

All this is to say the law requires consistency from the actors.  In general, if it becomes impossible to predict what is to happen, then it becomes untenable to perform and execute obligations in business.  This uncertainty would likely lead to undesirable results.  Similarly, courts will enforce promises made by a party.  This is a doctrine known as pacta sunt servanda and is as old as the hills.

 

The question then becomes - is it ever okay to approbate and reprobate?  When directly compared against the doctrine itself, probably not, in that the courts would call it something else, like an exception, perhaps for good reason.  Where parties tend to change their minds often manifests itself around cancellation of a contract.  And, it is here where an exception to approbating and reprobating exists known as the repentance principle.[2]

 

Repudiation is when a party to a contract refuses to abide by its obligations and perform.  This then places the non-repudiating party in a position to either accept repudiation and cancel the contract or refuse the repudiation and demand specific performance.  This is the non-repudiating party’s election.

 

The repentance principle speaks to a non-repudiating party’s refusal to accept repudiation and demand specific performance.  This, in turn, gives the repudiating party an opportunity to reconsider its repudiation and act in accordance with its obligations.  However, what happens if the repudiating party persists with its repudiation?

 

Our courts have recognized this as an unacceptable situation for the non-repudiating party allowing it to reverse course and accept cancellation.  Undoubtedly, this looks a lot like approbating and reprobating with the exception that there is an intervening event – being the repudiating party’s refusal to cease its repudiation.  It also recognizes the ability of parties to reconcile and work through potential problems so that they may still achieve the objectives set out in their agreement.

 

So, while the law does require consistency in one’s actions and generally approbating and reprobating is not allowed, the non-repudiating party may change course in the face of repudiation where its initial demand for specific performance is rejected by the repudiating party.

 

 

Paul Bellin is an advocate of the High Court of South Africa and an admitted attorney in the United States.  He frequently lectures on contract drafting and writing.

 

[1] 1912 AD 242 at 259

[2] Sandown Travel (Pty) Ltd v Cricket South Africa (42317/2011) [2012] ZAGPJHC 249; 2013 (2) SA 502 (GSJ) (7 December 2012) at paras. 29-44.