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[2016] ZAGPPHC 593
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Slabbert v Schutte and Another (46695/2014) [2016] ZAGPPHC 593 (8 July 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 46695/2014
DATE:
8 JULY 2016
In
the matter between:
STEPHANIE
SLABBERT
...................................................................................................
PLAINTIFF
And
CORNELIS
PETRUS
SCHUTTE
..............................................................................
1
st
DEFENDANT
CORNELIS
PETRUS SCHUTTE
NO
....................................................................
2
nd
DEFENDANT
JUDGMENT
MALI
J
[1]
This is an application in terms of Rule
33(4) of the Uniform Rules of Court. Rule 33(4) reads-
"if,
in any pending action, it appears to the court mero motu that there
is question of law... which may conveniently be decided
either before
any evidence is led or separately from any other question, the court
may
make an order directing the disposal of such
question............................. and the
court
shall on the application of any party make such order unless it
appears that the question cannot conveniently be decided separately".
[2]
In
TSHABALALA v MINISTER VAN
VEILIGHEID EN SEKURITEIT
[1]
it is stated that an important
consideration in ordering separation is whether a preliminary hearing
will shorten the proceedings.
[3]
The
application is on the instance of the defendants who are of the view
that the question of the validity of the agreement of sale
may
conveniently be decided separately from the remainder of the trial.
[4]
The
function of the Court, in an application in terms of Rule 33 (4) such
as the present, was stated in MINISTER OF AGRICULTURE
v TONGAAT GROUP
LTD
[2]
as follows-
"...
the function of the Court in an application of
this nature is to gauge to the best of its ability the nature and
extent of the advantages
which would flow from the grant of the order
sought and of the disadvantages. If, overall, and with due regard to
the divergent
interests and considerations of convenience (in the
wide sense I have indicated ) affecting the parties, it appears that
such advantages
would outweigh the disadvantages, it would normally
grant the application."
[5]
In
TUDORIC-GHEMO v TUDORIC-GHEMO
[3]
it was held that the word 'convenient' in the context of Rule 33 (4)
was used to convey not only the notion of facility or ease
or
expedience but also the notion of appropriateness: The procedure as
contemplated in Rule 33 (4) would be ' convenient' if, in
all the
circumstances, it appeared to be fitting and fair to the parties
concerned, (own underlining)
[6]
In
an unreported case of JOHAN HENDRIK DE WET AND OTHERS v MEMOR (PTY)
LTD
[4]
the Court said the following
"....................
The court has a discretion to grant or refuse
an application in
terms
of Rule 33 (4). The overriding consideration in such application is
convenience, in a wide sense, that is to say, the separation
must not
only be convenient to the person applying for such separation, but
must also be convenient to all the parties in the matter
inclusive of
the court. The determination of such an application requires of the
court to make a value judgment in weighing up
the advantages and the
disadvantages in granting such separation. If the advantages outweigh
the disadvantages, invariably, the
court should grant the application
for separation. The notion of appropriateness and fairness to the
parties comes into the equation".
[7]
It
appears from the above case law that convenience encompasses amongst
others appropriateness, therefore the shortening of the
proceedings
as held in Tshabalala above cannot be the only important
consideration. In the the present case the question whether
it is
convenient for this Court to grant the application for separation of
the validity of the sale agreement from the remainder
of the trial;
can only be answered when the issues defined in the pleadings have
been properly established.
[8]
The
plaintiff is a purchaser of a certain immovable property known as
Portion 443 (a portion of Portion 140 of the farm Hekpoort
504 JQ)
("the property").
[9]
The
plaintiff's claim against the defendant is for the specific
performance of a purported sale agreement of the land as well as
an
addendum thereto annexed as Annexures "A" and "B"
to the Plaintiffs Particulars of Claim. The sale is in
respect of the
property registered and owned by the Trust.
[10]The plaintiff also claims rectification
of the agreement of sale and the addendum thereto. The copy of the
sale agreement in
question refers to the "Corita Schutte
Familie" Trust being the seller and the plaintiff wants it
rectified to refer
to the first defendant, because the first
defendant purported to represent both trusts. The addendum refers to
a different trust,
namely "Cilliers Vijoen Schutte Eiendomme
Trust" and the plaintiff seeks rectification referring to the
first defendant
as the seller.
[11]As the first alternative claim, the
plaintiff seeks to enforce an oral agreement forcing the first
defendant to sign a sale
agreement and then repeats its claim for
specific performance. As a second alternative claim the plaintiff
claims that the first
defendant should as the agent for the Trust
effect the transfer of the property to the plaintiff as a specific
performance. As
a third alternative the plaintiff claims
misrepresentation by the first defendant and alleged consequential
damages and as a fourth
alternative the plaintiff claims that the
Trust had been enriched at the expense of the plaintiff.
[12]In the present matter the provisions of
the Alienation of Land Act, No 68 of 1981 ("the Act") are
applicable. Section
2 of the Act provides as follows
"No
alienation of land after the commencement of this section shall,
subject to the provisions of section 28, be of any force
or effect
unless it is contained in a deed of alienation signed by the parties
thereto or by their agents acting on their written
authority."
[13]The defendant’s application
amongst other grounds is supported by the abovementioned provisions.
The defendant's argument
is that the agreement of sale on which the
plaintiff seeks to rely on has not been signed by the seller or its
authorised agent,
therefore it is legally wanting and is of "no
force and effect". According to the defendant there is even no
need to
hear other issues except for the point in limine in respect
of the validity of the agreement of sale; and as a result the
plaintiff's
claim for rectification of the agreement of sale cannot
succeed and must be dismissed.
[14]With regard to the first alternative
claim for specific performance the plaintiff relies on an oral
agreement of sale of the
property. The defendant' contention is the
same above, that the oral agreement of sale of the immovable property
does not satisfy
the legal requirements. At page 338 of Amler's
Precedent of Pleadings it is stated that rectification of a contract
required by
statute to be in writing is possible only if the document
is, on its face and before rectification, formally valid in the sense
that it complies in form with the statute.
[15]On reading of the relevant statute the
question is whether the agreement of sale which is the subject of
this matter does in
a sense comply in the form with the statute and
therefore calls for rectification. The requirements is that a deed of
alienation
must be signed by the parties thereto or by their agents
acting on their written authority. In casu the agreement of sale is
not
signed by neither the seller nor the agent. The next question to
be answered is whether the document sought to be rectified is
formally valid in the sense that it complies in the form with the
statute.
[16]The plaintiffs argument is that the
formality requirements must not be allowed to trump the established
legal principle of rectification.
In this regard the plaintiff
referred the Court to the case of INTERCONTINENTAL EXPORTS (PTY) LTD
v FOWLES
[5]
("Intercontinental").
At page 6 -7 paragraph 11 the following is stated:
"Rectification
is a well established common law right. It provides an equitable
remedy designed to correct the failure of a
written contract to
reflect the true agreement between the parties to the contract. It
thereby enables effect to be given to the
parties' actual agreement.
The requirement of formal validity in the case of a deed of
suretyship flows from the Legislature's
perceived need to provide
safeguards in such matters. To the extent that the need to satisfy
the latter may preclude recourse to
the former, tension will
inevitably exist between the two. While care must be taken not to
defeat the object of the Act, the formality
requirements must not be
allowed to become an unnecessary stumbling-block to rectification
and, consequently, to giving effect
to the true intention of the
contracting parties".
[17]Intercontinental deals with the
rectification of the deed of suretyship . Section 6 of the General
Law Amendment Act 50 of 1956
requires that the deed of suretyship be
embodied in a written document signed by or on behalf of the surety.
The main complaint
in Intercontinental was that the suretyship
incorrectly reflected the agreement between the parties in that the
defendant was described
as the debtor, whereas the debtor is a
company and it was incorrectly indicated that the plaintiff allowed
the debtor banking facilities,
whereas the plaintiff was not a
debtor. The court of appeal applied the requirements for
rectification and granted rectification.
[18]Although the facts in the present matter
are not on all fours with those of Intercontinental, a generally
accepted approach,
the legal principle is the same. It is not in
dispute that the first defendant signed the addendum to the agreement
of sale albeit
the identity of the seller is a different trust from
the one named in the agreement of sale. The defendant's argument that
the
addendum amounts to nothing as the agreement of sale is
non-compliant with the law is misplaced in the circumstances. This is
because
the subject of sale as defined in the agreement of sale is
the same in the addendum, being "Portion 433 of 140 of the farm
Hekpoort 504 J.Q Gauteng" There is some indication of intention
to sell the same property to the plaintiff. My view is that
based on
this and the commonality of the first defendant in both transactions
irrespective of his capacity, the emphasis on the
formality creates
an unnecessary stumbling block.
[19]As indicated above the test for
separation of issues is convenience, which interpreted in
Tudoric-Ghemo case above as fitting
and fair to both parties. It may
not be equally fitting and fair as it is obvious in the case of
competing parties. My view is
that it will be unfair to the plaintiff
to decide the question of validity of the agreement of sale
separately from the trial on
the basis of question of law. It appears
to me that the defendants have a case to answer regarding the
drafting of the addendum
and the first defendant's signature appended
thereto. I find that it is fitting and fair to do so together with
the issue of the
validity of the agreement of sale in the appropriate
forum, the trial.
[20]Furthermore it has been submitted on
behalf of the plaintiff that the plaintiff claims fraudulent
misrepresentation against
the defendants. The claim is based on the
same events that form the basis of the transaction of sale, therefore
there is no real
convenience in separation. The defendant's counsel
did not address the issue of fraudulent misrepresentation. As stated
in paragraph
18 above, the intention to sell the same property
belonging to the trust to the plaintiff needs to be ventilated in a
proper forum.
[21]In the circumstances of this matter, I
find that it is not convenient to separate the question of validity
of the sale agreement
from other issues raised in the plaintiff's
particulars of claim. Therefore the application must fail.
[22]In the result the following order is
made;
[22.1]
The application is dismissed with costs.
N.P. MALI JUDGE OF THE HIGH COURT
Counsel for the Plaintiff: Adv M
Oosthuizen SC
Instructed by: Martin Grutter Attorneys
Counsel for the Defendant: Adv. N Davis
SC.
Instructed by: Dawie Beyers Attorneys
Date of Hearing: 01 March 2016
Date of Judgment: 08 July 2016
[1]
[2001] 3 All SA 620 (W)
[2]
1976 (2) SA 357
(D) at 364D-E
[3]
1997 (2) SA 246 (WLD)
[4]
2009/44153 at page para 6
[5]
1999(2) SA 1045 (SCA)