Weinerlein v Goch Buildings Ltd

JurisdictionSouth Africa
JudgeDe Villiers JA and Kotzé JA and Wessels JA
Judgment Date12 January 1924
Citation1925 AD 282
Hearing Date22 October 1924
CourtAppellate Division

De Villiers, J.A.:

This is an appeal from a judgment of STRATFORD, J., in the Witwatersrand Local Division dismissing exceptions to defendant's plea and claim in reconvention. The facts which for the purposes of the exceptions must be taken as alleged, as set forth in the pleadings are somewhat complicated, but they are sufficiently summarised for my purposes in the judgment under appeal and are as follows: The plaintiffs and defendant are owners of adjoining properties. On defendant's stand No. 859 certain

De Villiers, J.A.

buildings are erected which plaintiffs complain encroach upon their property, stand No. 857; they therefore claim the value of the ground so appropriated and damages. The defence is that both parties received their respective properties in pursuance of contracts concluded with one Goch, the predecessor in title of both; that Goch verbally agreed to sell to the defendant the land on which the building then stood, that the buildings were in fact built - and have continued to remain upon - portion of stand No. 857; that when the contract was put into writing the description of the land sold was, in mutual and justifiable error, described as stand No. 859, whereas it should have been described as the land on which the buildings actually stood, and this should have included the portion of stand No. 857 which the plaintiffs now claim as their property and as wrongfully occupied by defendants buildings. Similarly, it is alleged that when Goch subsequently sold the adjoining property to plaintiffs, the verbal agreement was that the latter should receive only such portion of stand No. 857 which was not occupied by the existing buildings, already sold to defendant, but that by mutual mistake the written agreement was not drawn up in conformity with the pre-existing verbal one inasmuch as again the land sold was wrongly described. The defendant has taken cession from Goch of all rights to rectification or otherwise he may have against the plaintiffs, and now claims rectification of both the written agreements that Goch made as well as of the transfer deeds. The exception to defendant's plea is that the same discloses no defence to the action, and the exception to the claim in reconvention is that it discloses no cause of action. The exceptions are based upon the provisions of sec. 30 of the Transfer Duty Proclamation of 1902, which reads as follows: "No contract of sale of fixed property shall be of any force or effect unless if he in writing and signed by the parties thereto or by their agents duly authorised in writing." In the court below the argument advanced in support of the exceptions was that the Courts of South Africa have adopted and applied the English doctrine of law as to rectification of written documents, and that it has been laid down by V. C. JAMES in Mackenzie v Coulson (1869, 8 Eq. C at p. 375) that: "It is always necessary for a plaintiff to show that there was an actual concluded contract antecedent to the instrument which is sought to be rectified; and that such contract is inaccurately represented in the instrument." That this view was adopted by the Witwatersrand

De Villiers, J.A.

Local Division in Bushby v Guardian Assurance Co. (1915, W.L.D at p. 71) and by this Court in the appeal (1916, A.D at p. 492); and that as sec. 30 makes the prior verbal agreement null and void there is no concluded contract antecedent to the written agreement which can be invoked or rectified. This argument is disposed of by the consideration that, in order to enable a Court of law to reform the writing so as to conform to the terms of an agreement in most cases antecedently arrived at by the parties, there is no necessity that the antecedent agreement should be a binding contract between the parties enforceable by action. To satisfy the rule in Mackenzie's case it is sufficient if the parties have arrived at a consensus ad idem in the shape of an agreement, the terms of which they, either of their own accord or to comply with the requirements of the law, subsequently embody in a formal instrument. It self-evident that, upon satisfactory proof of the terms of the agreement the instrument should, in the language of Story in his Equity Jurisprudence (13th ed., vol. 1, sec. 152), be made to conform to the precise intention of the parties. As far back as 1749 Lord HARDWICKE, laid down the following: "No doubt but this Court has jurisdiction to relieve in respect of a plain mistake in contracts in writing as well as against frauds in contracts; so that if reduced into writing contrary to the intent of the parties, on proper proof that should be rectified." (Henkle v Royal Assurance Co., 1 Ves. 314). This has since been followed in numerous cases. In Saayman v le Grange (1879, B at p. 12) the late Baron DE: VILLIERS is reported to have said: "I have not met with this peculiar form of action to rectify an error in a title-deed in any of the Roman or Roman-Dutch authorities, but it is continually occurring in this Colony. The action to rectify transfer is purely a matter of equity and the Courts of Equity in England have decided that in analogous cases the Statute of Limitations does not run until the discovery of the error. I think the Court should in a case of this nature be guided by the decisions of the Courts of Equity in England." And Dwyer, J., in the same case said: "I think the fact that actions to amend transfers are not to be found in the old Roman and Roman Dutch authorities, only shows how much better transfers were made in the days of the Romans and Dutch than in the present time." for the respondent stated they have not been able to find any authority in our law dealing with the rectification of documents.

De Villiers, J.A.

But there is no dearth of authority on the subject. Our law proceeds upon the same broad principle as the English law. (van Leeuwen, Cen. For., Part 2, Lib. 1, C. 29 No. 15.) 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 mistake in the writing." (Cf. C. 4.50. L. 5 and L. 6.) This rule, Gothofredus de reg. jur. 92, points out, applies not only to simulated agreements but to...

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224 practice notes
  • Botha (Now Griessel) and Another v Finanscredit (Pty) Ltd
    • South Africa
    • Invalid date
    ...Town Council 1962 (4) SA 772 (A); Borstlap C v Spangenberg en Andere 1974 (3) SA 695 (A); Weinerlein v Goch Buildings Ltd 1925 AD 282; Zuurbekom Ltd v Union Corporation Ltd 1947 (1) SA 514 (A); Novick and Another v Comair Holdings Ltd and Others 1979 (2) SA 116 (W); Rand Bank Ltd v Rubenste......
  • Nortje en 'n Ander v Pool, NO
    • South Africa
    • Invalid date
    ...630 (AD), is my indruk van wat daardie uitspraak beteken. Appèlregter VAN BLERK verwys na wat gesê is in Weinerlein v Goch Buildings Ltd., 1925 AD 282 te bl. 296, aangaande die ontwikkeling van die verrykingsaksie en sê dan (op bl. C 'It would appear that the development did not result in a......
  • Bank of Lisbon and South Africa Ltd v De Ornelas and Another
    • South Africa
    • Invalid date
    ...the purposes of the exceptio was constituted by conduct which was knowingly inconsistent with good faith. Weinerlein v Goch Buildings Ltd 1925 AD 282 at 292; Zuurbekom Ltd v Union Corporation Ltd 1947 (1) SA 514 (A) at 537, 543; Otto en 'n Ander v Heymans 1971 (4) SA 148 (T) at 156; Sohm's ......
  • Die Integrasiereël in die Suid-Afrikaanse Kontraktereg
    • South Africa
    • Juta Stellenbosch Law Review No. , September 2019
    • 16 August 2019
    ...1968 3 SA 195 (A) 31 Sien byvoor beeld Tesven CC v S outh African B ank of Athens 1999 4 All SA 396 (A); Weinerlein v Goch Buildings Lt d 1925 AD 282; Vente r v Liebenberg 1954 3 SA 333 (T); Mouton v Hanek om 1959 3 SA 35 (A); Schoeman v Nieuwoudt 1971 4 SA 161 (O); Vogel v Volkersz 1977 1 ......
  • Request a trial to view additional results
219 cases
  • Botha (Now Griessel) and Another v Finanscredit (Pty) Ltd
    • South Africa
    • Invalid date
    ...Town Council 1962 (4) SA 772 (A); Borstlap C v Spangenberg en Andere 1974 (3) SA 695 (A); Weinerlein v Goch Buildings Ltd 1925 AD 282; Zuurbekom Ltd v Union Corporation Ltd 1947 (1) SA 514 (A); Novick and Another v Comair Holdings Ltd and Others 1979 (2) SA 116 (W); Rand Bank Ltd v Rubenste......
  • Nortje en 'n Ander v Pool, NO
    • South Africa
    • Invalid date
    ...630 (AD), is my indruk van wat daardie uitspraak beteken. Appèlregter VAN BLERK verwys na wat gesê is in Weinerlein v Goch Buildings Ltd., 1925 AD 282 te bl. 296, aangaande die ontwikkeling van die verrykingsaksie en sê dan (op bl. C 'It would appear that the development did not result in a......
  • Bank of Lisbon and South Africa Ltd v De Ornelas and Another
    • South Africa
    • Invalid date
    ...the purposes of the exceptio was constituted by conduct which was knowingly inconsistent with good faith. Weinerlein v Goch Buildings Ltd 1925 AD 282 at 292; Zuurbekom Ltd v Union Corporation Ltd 1947 (1) SA 514 (A) at 537, 543; Otto en 'n Ander v Heymans 1971 (4) SA 148 (T) at 156; Sohm's ......
  • Primavera Construction SA v Government, North-West Province, and Another
    • South Africa
    • Invalid date
    ...followed Waverley Blankets Ltd v Shoprite Checkers (Pty) Ltd and Another 2002 (4) SA 166 (C): followed Weinerlein v Goch Buildings Ltd 1925 AD 282: followed. Statutes Considered Statutes H The Prescription Act 68 of 1969, ss 11(a)(ii), 12(1) and 13(1)(f): see Juta's Statutes of South Africa......
  • Request a trial to view additional results
4 books & journal articles
  • Die Integrasiereël in die Suid-Afrikaanse Kontraktereg
    • South Africa
    • Juta Stellenbosch Law Review No. , September 2019
    • 16 August 2019
    ...1968 3 SA 195 (A) 31 Sien byvoor beeld Tesven CC v S outh African B ank of Athens 1999 4 All SA 396 (A); Weinerlein v Goch Buildings Lt d 1925 AD 282; Vente r v Liebenberg 1954 3 SA 333 (T); Mouton v Hanek om 1959 3 SA 35 (A); Schoeman v Nieuwoudt 1971 4 SA 161 (O); Vogel v Volkersz 1977 1 ......
  • On Constitutive Formalities, Estoppel and Breaking the Rules
    • South Africa
    • Juta Stellenbosch Law Review No. , May 2019
    • 27 May 2019
    ...doctr ine of culpa in contrahendo respectively. 19 See eg Phillips v Miller (2) 1976 4 SA 88 (W ) 93D-E; Weinerlein v Goch Bui ldings Ltd 1925 AD 282 294 per Kotzé JA.20 See eg Weinerlein v Goc h Buildings Ltd 1925 AD 2 82 292-293 per Wessels JA; JS McLenn an “The Demise of the Non-Variat i......
  • From bona fides to ubuntu: The quest for fairness in the South African law of contract
    • South Africa
    • Juta Acta Juridica No. , December 2019
    • 24 December 2019
    ...of Benjamin Bros 1876 Buch 115 at 121.14 Burger v Central South African Railways 1903 TS 571 at 576.15 Weinerlein v Goch Buildings Ltd 1925 AD 282 at 295.© Juta and Company (Pty) FROM BONA FIDES TO UBUNTU 103law, does not prevail with us. Equitable principles are only of force in so far as ......
  • Good Faith is not Dead: It still Lives after Beadica 231 CC v Trustees, Oregon Trust
    • South Africa
    • Juta South Africa Mercantile Law Journal No. , October 2022
    • 24 October 2022
    ...Group South Africa (Pty) Ltd 1983(1) SA 254 (A); Paddock Motors (Pty) Ltd v Igesund 1976 (3) SA 16 (A); Weinerlein v GochBuildings Ltd 1925 AD 282; Zuurbekom Ltd v Union Corporation Ltd 1947 (1) SA 514 (A).30Hutchison & Pretorius, (Oxford University Press 2017) 28. See also Beadica v Oregon......

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