Lombaard v Droprop CC
| Jurisdiction | South Africa |
| Judge | Ploos van Amstel J |
| Judgment Date | 29 April 2014 |
| Citation | 2014 JDR 0877 (KZD) |
| Docket Number | 6773/2010 |
| Court | KwaZulu-Natal High Court, Durban |
Ploos vAn Amstel J
The plaintiff in this matter seeks an order directing the defendant to transfer an immovable property to him. The property is the subject of a written lease agreement which contains an option for the purchase of the property. The defendant disputes that it is liable to transfer the property to the plaintiff and contends that the agreement incorrectly refers to the whole of the property instead of a portion thereof. The defendant seeks rectification of the agreement and in the alternative an order declaring the agreement void on the basis of unilateral error.
The plaintiff previously launched an application for an order compelling the defendant to transfer the property to him. The defendant opposed that application and contended that the agreement was void as it did not describe the property with sufficient certainty. The defendant was successful in the local division but on appeal it was held that the description of the property was unambigious and sufficiently certain. The Supreme Court of Appeal nevertheless dismissed the appeal in the light of the defence of rectification in respect of which there was a dispute of fact on the papers. It added that the plaintiff was free to proceed by way of a trial so that the defence of rectification could be dealt with. This is the trial which proceeded before me.
2014 JDR 0877 p3
Ploos van Amstel J
The parties were agreed that the defendant bore the onus of proof with regard to both defences and that it had the duty to begin.
The lease agreement was concluded in Durban on 26 January 2005. It was signed by the plaintiff personally and by Mr Dhraundaw Preethepaul on behalf of the defendant. The leased property is described in the agreement as 'Certain Portion 526 of Lot 432 of the Farm Melk Houte Kraal no 789'. The lease was for a period of five years, commencing on 1 February 2005, with an option to renew for a further period of five years. It provided for an option in favour of the plaintiff to purchase the property for a sum of R3m, with a yearly escalation of 12 per cent. The option could only be exercised after the expiry of the first year of the lease and would be valid for five years only.
It was not in dispute before me that the plaintiff purported to exercise the option in writing on 12 November 2007 and that if the defences to which I have referred fail a valid agreement of sale would have come into existence.
The property described in the lease agreement is the subject of Deed of Transfer T 24990/98, according to which it is 2, 0797 hectares in extent. It lies between the M25 Highway and the Old Kwa Mashu Highway and roughly between a river on the south-east and a bridge on the north-west. There is a building on the property, near the south - eastern boundary. It was common cause before me that the description of the leased property in the lease agreement is that of the entire property.
The background is as follows. Mr Preethepaul, on behalf of the defendant, bought the property in August 1997 for a sum of R627 000. It was then zoned as farmland and there were no improvements on it. He and his wife each owned a forty per cent interest in the defendant and the remaining twenty per cent was owned by one of their sons. It was common cause before me that at all material times Mr Preethepaul was a successful an experienced businessman who was involved in property development and the sale of petroleum products. His offices were in a building across the road from the property, at 69 Hunslett Road, which he owned, either personally or in a corporate entity. It was his intention to move his wholesale petroleum products business to the new property because he was not allowed to
2014 JDR 0877 p4
Ploos van Amstel J
operate wholesale and retail businesses on the same premises. The property was rezoned industrial and in 2000 the defendant commenced the construction of a building on the property. The building was not completed as the defendant ran out of funds. It stood empty and was vandalised by people who removed windows and part of the roof.
The plaintiff owned a business known as Goat World, which was operated from premises not far from the defendant's property. He lived in Namibia and the business was managed by his uncle, Christie Lombaard (Christie). The plaintiff bought goats in Namibia which were transported to Durban and sold from these premises. He started to look for alternative premises because of the regular increases in his rent, and asked Christie to make enquiries about the vacant and incomplete building up the road. Christie made contact with Mr Preethepaul, and this led to the conclusion of the lease agreement which is the subject of this dispute. The plaintiff spent a considerable sum of money on renovations to the building but, due to threats by his landlord where his business was operating from, he never moved his business there. He sublet the property to Nyathi Textiles, and on 12 November 2007 he notified the defendant that he was exercising the option to purchase the property.
The defendant's case is that the description of the property in the lease agreement was a mistake. It contends that neither of the parties intended the lease to relate to the whole of the property. It sought an order that the agreement be rectified so as to describe the property as 'A certain part of Portion 526 of lot 432 of the Farm Melkhoute Kraal No. 789, which is fenced and demarcated, in extent approximately 6500 square meters'.
A party who seeks the rectification of an agreement must prove that due to a mistake common to the parties it does not correctly reflect their common intention. He must prove what the common intention was, otherwise it is not possible to rectify the agreement. In Levin v Zoutendijk 1979 (3) SA 1145 (W) Coetzee J said at 1148 A that the very cause of action for rectification postulates that the parties' agreement or common intention was clear and unmistakeable on those aspects in respect whereof the writing is to be reformed.
2014 JDR 0877 p5
Ploos van Amstel J
Mr Preethepaul testified that he erected a concrete block wall on the southern and eastern boundaries of the property, adjacent to the building, and on the western side of the building he erected a wire fence. The fence separated the portion on which the building stood, and an area surrounding it, from the rest of the property on the western side. This is the fence to which reference was made in the defendant's pleadings.
In his evidence Mr Preethepaul had considerable difficulty in specifying what part of the property should have been described in the lease agreement. In response to a question what area of the property he understood was going to be leased he said the building would have been leased and a common driveway leading to the building and to the other tenants. When the defendant's...
To continue reading
Request your trial