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[2008] ZAWCHC 257
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Lombard and Another v Solomon an d Another (9190/2005) [2008] ZAWCHC 257 (29 August 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO: 9190/2005
In
the matter between:
SHAUN
VERNON LOMBARD
1
st
Applicant
THE
REGISTRAR OF DEEDS
2
nd
Applicant
and
SALIEM
SOLOMON
1
st
Respondent
AYASHA
SOLOMON
2
nd
Respondent
JUDGMENT
(Application
for Leave to Appeal)
MEER,
J
Applicant
applies for leave to appeal against my judgment of 29 August 2008.
[1]
The grounds upon which leave is sought pertain on the whole to issues
which were fully canvassed in the judgment, and to the
extent that
they do, I shall not traverse these here.
[2]
In respect of the ground specified at paragraph 2 of the application,
I note that it is so that during cross-examination the
second
plaintiff,( second respondent in this application), stated she did
not regard the handwritten portion of the lease agreement
to contain
an option. Mr Patrick on behalf of respondents argued that as the
parties had concluded a written agreement, about which
there was no
ambiguity the second plaintiff's evidence was not admissible. Mr
Albertus on behalf of first applicant acknowledged
the applicability
of the parol evidence rule but argued that the mindset of the second
plaintiff was that there was no option.
I do not accept this. From
the evidence it is clear that the mindset of second plaintiff was
that there was an option which could
be exercised two months before
the termination of the lease.
[3]
I note in passing that second plaintiffs evidence as to whether there
was an option, was that because the word "will"
appeared in
the handwritten portion of the lease, it did not constitute an
option. In testifying as such she was not responding
to a question
pertaining to the legal definition of an option which was not
explained to her.
[4]
The judgment at paragraph 31, finds that the word "will"
signifies the desire to sell at the termination of the lease,
as was
also contended on behalf of first applicant. The judgment concluded
that the handwritten offer of sale satisfied the legal
requirements
for an option. The evidence of second plaintiff cannot be relied on
for a finding in law as to whether the contested
portion of the lease
was an option.
[5]
On a careful conspectus of the arguments I do not believe that
another Court would come to a conclusion different to mine. This
being so, the application for leave to appeal is refused with costs.
MEER,
J