Weinerlein v Goch Buildings Ltd

• Jurisdiction: South Africa
• Judge: De Villiers JA and Kotzé JA and Wessels JA
• Judgment Date: 12 January 1924
• Hearing Date: 22 October 1924
• Court: Appellate 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...