Le Riche v Hamman

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Tindall JA and Greenberg JA
• Judgment Date: 10 June 1946
• Citation: 1946 AD 648
• Court: Appellate Division

Watermeyer, C.J.:

This is an appeal from a decision of SUTTON, J., given in a case tried, before him in the Cape Provincial Division.

In the Court a quo Hamman (whom I shall call the plaintiff) sued le Riche (whom I, shall call the defendant) for an order compelling him to re-transfer to the plaintiff a piece of land, 9 morgen in extent (which I shall call Victory Hill), situated near Brackenfell in the division of Stellenbosch and abutting on the main road from Cape Town to Paarl or alternatively for payment of the sum of £3,000, the value thereof. The cause of action was condictio indebiti, plaintiff alleging that Victory Hill had been transferred to defendant in error and that the mistake arose in the following circumstances. Prior to March 1942, plaintiff was the owner of

Watermeyer, C.J.

several pieces of land, the titles to which were all incorporated in one deed of transfer (No. 8981, dated 21st August, 1939). These pieces of land were described in that deed as follows:

[The description was set out.]

The first three of these adjoined one another and formed one block situated at Kuils River in the Cape Division alongside the main road from Cape Town to Caledon. I shall call them the Kuils River property. The fourth one was Victory Hill. The distance between these two properties was 1.3 miles in a straight line and 2.1 miles by road. Plaintiff alleged that on 12th March, 1942, he sold the Kuils River property to the defendant and thereafter by mistake, Victory Hill was transferred to the defendant together with the Kuils River property in order to succeed in his claim, plaintiff had to prove that transfer of Victory Hill had been passed to defendant in error.

The defendant pleaded that no mistake had been made because all the property comprised in Transfer No. 8981 was sold to him by the plaintiff; also, that in any event he was unable to re-transfer Victory Hill to plaintiff because on 3rd December, 1943, he had sold and transferred it for a sum of £600 to Miss Errera, a lady who, according to the evidence, was his confidential clerk, secretary and typist.

The contract of sale of 12th March, 1942, was contained in a broker's note signed by the parties. It was in the following terms:

"BROKER'S NOTE.

Seller:	Abraham Jacobus Hamman.
Purchaser:	Rehoboth le Riche, born 26th June, 1891.
Property:	Certain farm situate on the main road, Kuils River, opposite the pens of Messrs. Maree & Bosman, according to Deed of Transfer No. 8981, dated 21st August, 1939.
Purchase Price:	Two thousand two hundred and fifty Pounds (£2,250), payable two hundred and fifty pounds (£250) on signing of this Agreement, and the balance cash against transfer.
Transfer:	To be given and taken forthwith, all costs including transfer duty to be paid by Purchaser.
Possession:	To be given and taken on 29th of March, 1942. Should transfer not be effected by 29th of

Watermeyer, C.J.

	March, 1942, purchaser to pay interest on unpaid purchase price from date of possession to date of payment, at 5 per cent. R le R.
Rates and Taxes:	Purchaser to pay a pro rata share of rates and taxes as and from date of possession.
Rent:	he rent for the year ending 29th of March, 1942, amounting to £30, to be paid by Purchaser before Seller will agree to confirmation of the Sale.
	Seller: A. J. Hamman. Purchaser: R le Riche."

SUTTON, J., held that only the Kuils River property had been sold by plaintiff to defendant and consequently that the plaintiff was en titled to some relief. He held, further, that defendant knew, when he signed the broker's note, that he was not buying Victory Hill and that he knew, at the time when he sold that piece of land to Miss Errera, that it had been transferred to him in error that his conduct was therefore not bona fide and consequently that he was liable to plaintiff for the value of the property and damages which he assessed at the sum of £1,250 and £135, respectively. Defendant now appeals against that decision and plaintiff crossappeals against the valuation of £1,250 placed upon the property.

A considerable portion of the evidence given in this case dealt with conversations and interviews and correspondence which took place between defendant and plaintiff, and also between defendant and Hofmeyr, one of the directors of J. J. Hofmeyr & Son, Ltd., a firm of auctioneers who had acted as agent for the plaintiff in selling the property described in the broker's note. Counsel for the defendant relied upon this evidence and asked the Court to draw from it the inference that the parties intended Victory Hill to be included in the land which was sold by the broker's note. But this evidence was inadmissible for that purpose because the, broker's note was a contract in writing which is seen to be unambiguous when the admissible evidence, which was given to identify the property described in the broker's note, is examined - Consequently, on the principles accepted by this Court in several cases, of which one of the most recent is Rand Rietfontein Estates, Ltd. v Cohn (1937 AD 317), this evidence could not be used to contradict, vary or add to the terms of the written contract or to

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