Pacta Sunt Servanda And The Sale Of Immovable Property - A Case Study.

In Hough v Smeyatsky and Others (2026), the Western Cape High Court considered the relationship between pacta sunt servanda and a purchaser’s claim for specific performance in a residential property sale. The case illustrates how contractual certainty is balanced against constitutional values such as fairness, reasonableness and dignity.

Ms Hough entered into a written agreement to purchase property in Cape Town City Centre from the Smeyatskys for R3.5 million. She paid a R2 million deposit, secured bond finance, paid transfer duty and fulfilled her contractual obligations. The sellers later requested mutual cancellation because their planned relocation to Mauritius had failed. They also argued that transferring the property would leave them without suitable accommodation and interfere with their support of Allan Smeyatsky’s elderly mother, who required dialysis.

Hough refused cancellation and sought an order compelling the sellers to complete the transfer. The Court affirmed that pacta sunt servanda remains an important principle of South African contract law. A party who has breached an agreement cannot simply choose to pay damages instead of rendering the promised performance. Although the availability of alternative accommodation or damages may be relevant when assessing hardship, these factors do not automatically defeat a claim for specific performance.

The Smeyatskys failed to provide sufficient evidence to establish that enforcement would be unjust. Their proposed move to Mauritius was not made a condition of the sale, although they could have included such a term in the agreement. Furthermore, their evidence concerning the mother’s circumstances was limited and partly based on hearsay. The Court lacked reliable information about her living arrangements, medical treatment and the precise assistance provided by the sellers.

The judgment demonstrates that personal hardship must be proven with concrete evidence and assessed objectively. While contractual enforcement must reflect constitutional values, those values do not permit courts to disregard clear contractual obligations without compelling justification.

The Smeyatskys were therefore ordered to sign all documents necessary to transfer the property within ten days.