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[2016] ZAGPPHC 220
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J.L v W.T.L (69491/2014) [2016] ZAGPPHC 220 (17 March 2016)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 69491/2014
DATE:
17 MARCH 2016
In the matter
between:
[J……….]
[L………]
....................................................................................................................
Plaintiff
And
[W…….]
[T……]
[L……..]
......................................................................................................
Defendant
JUDGMENT
Baawa J
[1] The parties
herein are currently litigants in a divorce action pending before
this court. The parties have agreed to a separation
of issues in
terms of Rule 33 (4) of the Uniform Rules of Court and in terms of
that agreement the current application for the
rectification of the
ante-nuptial contract between the parties has proceeded before me.
[2] The parties were
married to each other out of community of property with the inclusion
of accrual on 11 October 2008.
[3] The ante-nuptial
contract was entered into between the parties at the offices of
attorney Pieter Le Grange and it was registered
at the Deeds office
on 1 October 2008.
[4] The applicant,
[W……..] [T…….] [L……], is
the defendant in the divorce matter and the
respondent is [J……]
[L……..] who is the plaintiff in the matter.
[5] The defendant
has called Mr Pieter Le Grange (Le Grange) to testify regarding the
drafting and signature of the ante-nuptial
contract.
[6] Le Grange
testified how both parties attended at his offices and had a
consultation with him regarding the drafting of the ante-nuptial
contract. He explained to them the difference between a marriage in
and out of community of property and with or without accrual.
He was
then given a list of assets to be excluded by the plaintiff but was
not given any list by the defendant.
[7] The parties then
waited while the contractual document was being prepared and after
completion thereof he explained the contents
and confirmed that they
understood same and had no wish to amend anything in the typed
contract document. They thereafter signed
the document and departed.
[8] He was referred
to the ante-nuptial contract and with reference to clause 4 thereof
he confirmed that the starting value for
the plaintiff was the amount
of R5 170 000.00 being the value of the list of assets given to him
by the plaintiff, whereas the
starting value for the defendant was
reflected as zero. He testified that this was an oversight on his
part as his instructions
were to record a starting value of zero in
respect of both parties.
[9] Le Grange
testified that this was due to the oversight, paragraph 4 of the
ante¬nuptial agreement had to be rectified to
reflect zero
starting values for both parties as that was the common intention of
both parties.
[10] He further
testified that the contents of paragraph 5 correctly reflected the
instructions that were given to him regarding
the exclusion of the
assets of the parties.
[11] The defendant
also gave evidence which was to the effect that they discussed the
issue on the morning before they proceeded
to Le Grange’s
offices. She had no preference for any marriage regime but she
considered an ante-nuptial contract as a prerequisite
for a marriage.
[12] By and large
she confirmed the testimony of Le Grange regarding what took place at
his offices though she could not remember
some aspects and she
attributed that to effluxion of time.
[13] Mrs [L……]
was subjected to a thorough and wide ranging cross examination which
included reference to the pleadings
in the divorce action. She was
taxed regarding instruction which appeared to be different to
different sets of attorneys. She attributed
this to her insufficient
knowledge of legal matters. She was however adamant that the starting
values in paragraph 4 of the ante¬nuptial
contract ought to be
amended to reflect a zero value for both parties.
[14] Even though she
had sought the inclusion of her assets namely, furniture and a Nissan
motor vehicle in the ante-nuptial contract
in one of the notices of
amendment she had filed, she was no longer pursuing that relief.
[15] The plaintiff
also testified and his testimony regarding the events at Le Grange’s
offices was largely similar to that
of the defendant. He however
testified that the starting value of R5 170 000.00 in paragraph 4 of
the ante-nuptial contract was
as per his instructions and that that
reflected the common intention of the parties. He specifically denied
that the intention
was to reflect a zero starting value for both of
them.
[16] A rather
unusual aspect of this case was that even though Le Grange had been
the plaintiffs attorney previously, he was subpoenaed
by the
Defendant.
Evaluation
[17] Upon weighing
Le Grange's evidence it did not appear to me that he sought to favour
one party or the other in his testimony.
He appeared to be honest and
objective in giving his version of events. I found him to be a
credible witness who gave his evidence
in a professional and
objective manner.
[18] The plaintiff
testified that he had a discussion with the defendant regarding the
different forms of the marital regimes and
from a lay person’s
point of view also explained accrual and the possibility of excluding
their current assets from the accrual
arrangement. He further
testified that from their date of marriage on 11 October 2008 they
started with zero accrual value.
The law
[19] In a
rectification claim the following facts must be alleged and proved:
19.1 An agreement
between the parties which was reduced to writing.
19.2 Secondly, there
must be evidence that the written document did not reflect the common
intention of the parties correctly. The
common continuing intention
of the parties, as it existed when the agreement was reduced to
writing, must be established. It may
be deduced from an antecedent
agreement, for instance.
See Meyer v
Merchants Trust Ltd
1992 AD 244
City Council of the
City of Durban v Rumdel Construction (Pty)
Ltd
[1997] 2 All SA
20
(D)
19.3 Thirdly an
applicant must prove an intention by both parties to reduce the
agreement to writing.
Meyer v Kivner
[1974] 4 All SA 201
(N),
1974 (4) SA 90
(N) p 103
19.4 Further, the
applicant must prove a mistake in the drafting of the document.
See Vin Ziegler v
Superior Furniture Manufacturers (Pty) Ltd
[1982] 3 All SA 371
(T),
1962 (3) SA 399
(T) p 411 Neuhoff v York Timbers Ltd
[1981] 4 All SA
675
(T),
1981 (4) SA 666
(T) p 674
See also Amler’s
Precedents of Pleadings (8th Edition) Harms pp 318 - 9
[20] In the case of
Brits v van Heerden
2001 (3) SA 257
© at 282 Knoll J stated the
position in this regard as follows:
“...I agree
with Mr Murray that this judgment and other cases referred to
indicate that it is necessary that there be a mistake
of some sort.
However, the mistake does not have to relate to the writing itself,
but might relate to the consequences thereof.
The mistake may be
common to both parties; the mistake may be that of only one party;
the mistake may be induced by misrepresentation
or fraud. In my view,
the crux of the matter is that the mistake, be it a misunderstanding
of fact or law or be it an incorrect
drafting of the document, must
have the effect of the written memorial not correctly reflecting the
parties' true agreement
[21] The evidence of
both the defendant and Le Grange satisfies all the requirements I
have referred to. In particular the evidence
of Le Grange is quite
specific regarding the error in the drafting of the document. Le
Grange’s evidence was not challenged
under cross examination
and as such its truthfulness and cogency in the weighing of the
evidence also remains unchallenged. It
can therefore not be validly
argued as the plaintiff has tried to do in submissions by his counsel
that the written memorial correctly
reflects the parties’ true
agreement.
[22] The parties’
true agreement is evident not only from the testimony of the
plaintiff but also the evidence of the defendant
and Le Grange who
was the author of the document. The agreement was that accrual would
begin with a zero value for both parties.
[20] In the case of
Brits v van Heerden
2001 (3) SA 257
© at 282 Knoll J stated the
position in this regard as follows:
“.../ agree
with Mr Murray that this judgment and ail other cases referred to
indicate that it is necessary that there be
a mistake of some sort.
However, the mistake does not have to relate to the writing itself
but might relate to the consequences
thereof. The mistake may be
common to both parties; the mistake may be that of only one party;
the mistake may be induced by misrepresentation
or fraud. In my view,
the crux of the matter is that the mistake, be it a misunderstanding
of fact or law or be it an incorrect
drafting of the document, must
have the effect of the written memorial not correctly reflecting the
parties’ true agreement
.”
[21] The evidence of
both the defendant and Le Grange satisfies all the requirements I
have referred to. In particular the evidence
of Le Grange is quite
specific regarding the error in the drafting of the document. Le
Grange’s evidence was not challenged
under cross examination
and as such its truthfulness and cogency in the weighing of the
evidence also remains unchallenged. It
can therefore not be validly
argued as the plaintiff has tried to do in submissions by his counsel
that the written memorial correctly
reflects the parties’ true
agreement.
[22] The parties’
true agreement is evident not only from the testimony of the
plaintiff but also the evidence of the defendant
and Le Grange who
was the author of the document. The agreement was that accrual would
begin with a zero value for both parties.
[28] in the result I
make the following orders:
28.1 Paragraph 4 of
the ante-nuptial agreement of the parties is hereby rectified so that
the starting value of the plaintiff, which
currently reads "R5
170 000.00’ is hereby deleted and substituted with the word
“NUL” and the assets listed
under plaintiffs starting
value are deleted.
28.2 The remainder
of the relief sought in this action is postponed sine die;
28.3 The plaintiff
is ordered to pay the costs.
28.4 The draft order
handed in as amended is marked “X” and made an order of
court.
S. A. M. BAQWA
JUDGE OF THE
SOUTH AFRICA GAUTENG DIVISION, PRETORIA
Heard on: 17
March 2016
Delivered on: 17
March 2016
For the
Plaintiff: Advocate J. Rasd
instructed by: Jl
van Niekerk Incorporated Attorneys
For the
Defendant: Advocate I. Vermaak-Hay
Instructed by:
Arthur Channon Attorneys