About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2015
>>
[2015] ZANCHC 12
|
|
Jacobs v Southey and Others (724/14) [2015] ZANCHC 12 (24 April 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE HIGH
COURT, KIMBERLEY)
Case No: 724/14
DATE: 24 APRIL 2015
In the matter between
ALBERT WILLIAMS
JACOBS
.............................................................................................
Plaintiff
And
KAREN
SOUTHEY
........................................................................................................
First
Defendant
STANDARD BANK OF SOUTH
AFRICA
..............................................................
Second
Defendant
THE REGISTRAR OF
DEEDS
...................................................................................
Third
Defendant
JUDGMENT
Heard On 20/02/2015
Delivered 24/04/2015
PAKATI J
[1] This is an exception taken on 07
August 2014 by the plaintiff, Mr Albert Williams Jacobsz, to the
first defendant’s Counterclaim.
The plaintiff claimed
re-registration of a property known as Erf 311, Douglas (“the
property”), in the name of the
first defendant (Ms Karen
Southey) and repayment of the amount of R675 000-00 to the second
defendant (Standard Bank). The third
defendant is the Registrar of
Deeds.
[2] Only Ms Southey opposed the action.
Her Plea and Counterclaim were filed with the Registrar on 14 July
2014. The plaintiff took
exception to Ms Southey’s Counterclaim
on the grounds that it does not disclose a cause of action.
[3] In her Counterclaim Ms Southey
pleaded that after the plaintiff obtained a loan in the reduced
amount of R675 000-00 from Standard
Bank he (the plaintiff) and Ms
Southey, duly represented by her husband, Mr Mark Southey, orally,
alternatively impliedly, alternatively
tacitly, agreed as follows:
“(3.1) That the first defendant
[Ms Southey] would accept the amount of R650 000-00 as payment for
the property, the said
amount to be paid to the first defendant on
registration of the property in the name of the plaintiff [Mr
Jacobsz];
(3.2) The plaintiff would proceed to
pay the bond and transfer costs in the amount of R25 000-00 in order
to effect the transfer
of the property to the plaintiff; and
(3.3) The first defendant would not
proceed to collect the amount outstanding on the purchase price of
R750 000-00, as set out in
the agreement, Annexure ‘A’ to
the Particulars of Claim of the Plaintiff.
(4) The purchase price of R750 000-00,
as reflected in Clause 2 of the written agreement, Annexure ‘A’
to the Particulars
of Claim, and the contents of paragraph 17 of the
said Annexure ‘A’ accordingly does not reflect the true
agreement
between the parties.
(5) The further oral agreement, as
pleaded in paragraph (3) [3.1 – 3.3 inclusive] reflect the true
intention and agreement
between the parties.
(6) The further oral agreement, as
pleaded in paragraph (3) supra, was not reduced to writing as a
result of a common mistake between
the parties.
(7) The Plaintiff and [Ms Southey] have
fully performed in terms of the written agreement and further oral
agreement, as reflected
in paragraph (3), in that;
(7.1) All steps were taken by the
Plaintiff and Ms Southey to effect transfer of the property to the
Plaintiff;
(7.2) [The] Plaintiff paid the transfer
and bond costs;
(7.3) Registration of transfer of the
property to the Plaintiff took place during August 2013;
(7.4) The amount of R650 000-00 was
paid to the Ms Southey on registration of transfer of the property in
the name of the Plaintiff;
and
(7.5) [The] Plaintiff took possession
of the property and has occupied it from date of registration, to wit
02 August 2013.
WHEREFORE the First Defendant claims:
1. An order that the written agreement,
Annexure ‘A’ to the Particulars of Claim, be amended by
deleting the:
1.1 Amount of R750 000-00 in Clause 2
and replacing it with the amount of R675 000-00;
1.2 [The] first and second sentences of
Clause 17, to the effect that Clause 17 will only contain the
sentence: ‘Die Koper
sal egter aanspreeklik wees vir koste
verbonde aan hierdie oreenkoms en/of aansoek om die lening en/of
koste daartoe verwant.”
[4] Ms Southey pleaded further that
rectification will give effect to the true agreement between the
parties with regards to the
purchase price as well as the
circumstances which led to the registration and transfer of the
property into the plaintiff’s
name.
[5] The plaintiff sets out the grounds
of exception in his Notice as follows:
“1. Die eerste verweerder [Ms
Southey] se teeneis is geskoei op ‘n skriftelike ooreenkoms
aangegaan deur die eiser [Mr
Jacobsz] en eerste verweerder op 21
Februarie 2013.
2. Die eerste verweerder se saak, soos
verwys na in paragraaf 3,3.1, 3.2 en 3.3 daarna, behels dat daar op 4
April 2013 (gevolglik
ʼn datum na kontrasluiting synde 21
Februarie 2013) mondelings, alternatiewelik stilwyend,
alternatiewelik by implikasie ooreengekom
is op die terme soos vervat
in paragrawe 3,3.1, 3.2 en 3.3 van die teeneis.
3. Die eeste verweerder se saak is
verder dat die Februarie ooreenkoms staan om gerektifiseer te word
ten einde die ware bedoeling
van die partye, soos op 4 April 2013,
weer te gee, soos vervat in paragrawe 4, 5 en 6 van die eerste
verweerder se teeneis.
4. Die eerste verweerder se
skuldoorsaak en feite gepleit is regtens onhoudbaar met ‘n eis
vir rektifikasie wat slegs met
verwysing na die datum van
kontraksluiting vatbaar is vir rektifikasie en nie by wyse van
mondelinge ooreenkoms(te) na datum van
kontraksluiting vatbaar is vir
rektifikasie nie, maar regtens bloot op wysigings van ʼn reeds
bestaande skriftelike ooreenkoms
neerkom.
5. In die lig van voorafgaande en selfs
indien die eerste verweerder die feite in [paragrawe] 4,5 en 6 van
die teeneis bewys (vir
doeleindes van hierdie eksepsie), is die
eerste verweerder se facta probanda regtens onhoudbaar met die
bestaan van ʼn eis
vir rektifikasie.”
[6] The aforementioned agreement which
was entered into between the disputing parties on 21 February 2013
contains a non-variation
clause (Clause 2) which states:
“2. Die koopprys is die som van
R750 000-00 (SEWE HONDERD EN VYFTIG DUISEND RAND) en is betaalbaar
deur die Koper aan die
Verkoper in kontant by datum van registrasie
van transport van die eiendom in die naam van die Koper. Die Koper
sal binne 14 (veertien)
dae nadat aan die opskortende voorwaarde
hierinlater beskryf voldoen is aan die Verkoper ‘n bank of
ander waarborg deur Verkoper
goedgekeur, voorsien betaalbaar op
advise van die Verkoper se aktebesorger dat die eiendom in die naam
van die Koper geregistreer
is.”
[7] The agreement was subject to a
suspensive condition contained in Clause 17 which reads as follows:
“17 Dit is ‘n spesiale en
opskotende voorwaarde van hierdie ooreenkoms dat die Koper daarin sal
slag om binne 60 (sestig)
kalenderdae na datum van ondertekening
hiervan deur die Verkoper, ‘n lening vir R750 000-00 (SEWE
HONDERD EN VYFTIG DUISEND
RAND) van ‘n finansiële
instansie te bekom. Indien die Koper nie daarin slag om die lening te
bekom nie en hy kan bewys
dat hy tydiglik daarom aansoek gedoen het,
maar dat dit geweier was sal hierdie ooreenkoms as nietig ab initio
beskou word en geeneen
van die partye sal uit hoofde daarvan enige
eis teen die ander party hou nie. Die Koper sal egter aanspreeklik
wees vir koste verbonde
aan hierdie ooreenkoms en/of aansoek om die
lening en/of koste daartoe verwant.”
The alleged oral agreement, so says the
plaintiff, is an attempt by Ms Southey to circumvent this
non-variation clause.
[8] On 27 March 2013 Mr Jacobsz (the
plaintiff) obtained a loan of R675 000-00 from the bank. He paid the
said amount to Ms Southey
who accepted it as full payment of the
purchase price for the property. As stated earlier the property was
on 02 August 2013 registered
in the name of the plaintiff by the
Registry of Deeds (third respondent) under Title Number T1217/2013.
With regards to Claim 1
the plaintiff alleges that there was
non-compliance with the suspensive condition (Clause 17) which
renders the agreement null
and void. The alternative claim concerns
latent defects to the property which are not relevant at this stage
to the enquiry.
[9] The written agreement contained
another non-variation clause contained in Clause 16 to the following
effect:
“Hierdie Koopkontrak stel die
hele ooreenkoms tussen die parteye daar en geen modifikasie, wysiging
of verandering daaraan
sal geldig wees tensy op skrif gestel en
geteken deur beide partye hiertoe.”
[10] Adv A Stanton, on behalf of the
plaintiff, submitted that Ms Southey’s Counterclaim did not
contain the relevant averments
to support a claim for rectification.
To test this submission regard must be had to the following
pronouncements by Van Heerden
JA in PROPFOKUS 49 (PTY) LTD AND OTHERS
v WENHANDEL 4 (PTY) LTD
[2007] 3 ALL SA 18
(SCA) at p21:
“In order to succeed with its
claim for rectification, Wenhandel had to allege and prove the
following:
(a) That an agreement had been
concluded between the parties and reduced to writing;
(b) That the written document does not
reflect the true intention of the parties – this requires that
the common continuing
intention of the parties, as it existed at the
time when the agreement was reduced to writing, be established;
(c) An intention by both parties to
reduce the agreement to writing – in the present case, the
agreement was for the sale
of land and, therefore, had to be in
writing in order to be valid and binding;
(d) A mistake in drafting the document,
which mistake could have been the result of an intentional act of the
other party or a bona
fide common error; and
(e) The actual wording of the
agreement.”
Ms Stanton submitted that in the
circumstances the leading of evidence pertaining to the surrounding
circumstances, the rule against
parol evidence does not come into
play.
[11] Adv S Erasmus in response
submitted that in terms of
s 28
(2) of the
Alienation of Land Act, 68
of 1981
, any disposition that does not meet the requirements of
s 2
(1) of the said Act assumes validity if the parties perform fully in
terms of the agreement and the property is transferred to
the buyer,
as in this case.
S 2
(1) of the said Land Act provides that no
alienation of land after its commencement shall, subject to the
provisions of s 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 on their
written authority. Ms Erasmus submitted that
therefore, the purpose for a claim for rectification of a written
agreement is to
align it to the common intention of the parties.
[12] In JARROSSON ESTATES (EDMS) BPK v
OOSTHUIZEN
1985 (3) SA 550
(NC) at 550I-551A-C the plaintiff, in an
application for summary judgment, alleged that the defendant through
his failure to pay
the purchase price in terms of a written agreement
for the sale of land, had committed breach of contract. The
defendant, in opposing
the application, contended that the written
agreement did not contain the whole agreement as it had not provided
that the contract
was subject to the condition that he obtains a loan
for the amount of the purchase price and that he was therefore
entitled to
rectification of the contract. The plaintiff argued that
the defendant was precluded by the provisions of Clause 8 of the
agreement
from claiming rectification. Clause 8 thereof read thus:
“This is the only agreement
between the parties and any amendment or insertion must be reduced to
writing by the parties and
must be signed in order to be binding.”
The Court held that on the assumption,
for the purposes of that case, that both parties were under a
misapprehension, when they
signed the contract, that the condition
formed part of the written contract, Clause 8 did not exclude the
defendant’s right
to rectify the contract in the event of a
mutual error and that the defendant was also not precluded by
estoppel from rectifying
the contract.
[13] The object of rectification is to
have a written contract conform to the common intention of the
parties. See TESVEN CC v SA
BANK OF ATHENS
2000 (1) SA 268
(SCA). In
KATHMA INVESTMENTS (PTY) LTD WOOLWORTHS (PTY) LTD
[1970] 2 ALL SA 570
(A) at 573 Rumpff JA stated:
“The doctrine as to rectification
of a written contract generally presupposes, of course, the existence
of a term of the real
agreement, antecedent to the written contract,
which has not been properly recorded. In Weinerlein v Goch Buildings
Ltd,
1925 AD 282
, which dealt with a contract of sale of fixed
property required to be in writing by law, DE VILLIERS, JA, at p 289
referred to
some of the old authorities as follows:
“Semper veritati errorem cedere
oportet, says Faber in his Code, 4.16. def. 10, the mistake must
yield to the truth. ‘In
contracts regard must be had rather to
the truth of the matter (rei veritas) than to what has been written,’
is laid down
in C. 4.22. L. 1; and Gothofredus notes: ‘for
there may be mistakes in the writing.’”
The learned Judge continued at p 290:
“When rectification takes place
all that has to be done is, upon proper proof, to correct the mistake
so as to reproduce in
writing the real agreement between the
parties.”
[14] Melamet J in LEYLAND (SA) (PTY)
LTD v REX EVANS MOTORS (PTY) LTD
1980 (4) SA 271
(WLD) at 272F-G had
this to say:
“A written agreement which fails
to express accurately the true intention of the parties may be
rectified so as to make it
accord with the parties’ common
intention. If the party seeking rectification can prove an actual
agreement anterior to or
contemporaneous with the writing with which
the written agreement, owing to a mutual mistake, fails to conform,
the Court will
rectify the erroneous instrument.”
[15] In the instant case serving before
me both parties were aware that the loan approved was for a lesser
amount (R675 000-00)
and not R750 000-00 as stipulated upon in
Annexure “A”. The reduced amount was paid by the
plaintiff to the first defendant
(Ms Southey) who in turn accepted
it. Both parties ignored the non-variation clauses. The plaintiff
signed the documentation pertaining
to transfer and paid the bond
costs. Consequently the property was registered in his name on 02
August 2013.
[16] The oral agreement referred to by
Ms Southey, which was erroneously not recorded, is consistent with
the conduct of both parties.
For the plaintiff to issue summons on 08
May 2014 claiming re-registration of the property into his (the
plaintiff’s) name
and offering the restitution of the R675
000-00 to the second defendant (Standard Bank) is absurd for the
reasons already addressed.
In my view, the mistake is capable of
rectification. In the circumstances the exception must fail with
costs.
[17] The plaintiff alleged that the
Counterclaim is legally untenable as it does not contain the relevant
averments to support a
claim for rectification but failed to specify
what elements were not complied with. This was disputed by Ms
Southey. In my view,
the Counterclaim does comply with the Propfokus
case referred to in para 10 above.
In the result I make the following
order:
1. The exception is dismissed with
costs.
2. The application for rectification is
granted with costs.
3. The written agreement (Annexure “A”
to the Particulars of Claim) is amended by:
3.1 The deletion of the amount of R750
000-00 in Clause 2 and replacing it with the amount of R675 000-00;
and
3.2 The deletion of the first and the
second sentences of Clause 17 to read as follows:
‘Die Koper sal egter aanspreeklik
wees vir koste verbonde aan hierdie ooreenkoms en/of aansoek om die
lening en/of koste daartoe
verwant.’
BM PAKATI
JUDGE
On Behalf of the Plaintiff: ADV A
STANTON
Instructed by: DELPORT VAN DEN BERG
INC. C/O FLETCHER’S
On Behalf of the 1stDefendant: ADV S
ERASMUS
Instructed by: HERMAN VAN HEERDEN
INC.
C/O ENGELSMAN MAGABANE INC