- March 3, 2023
- |Concise Law Reports (CLR), Contracts
The action arose from a written agreement for the sale of an immovable property to wit Erf 1133, Rundu between the plaintiff and the 1st defendant duly represented by the second defendant. In terms of the agreement the plaintiff undertook to purchase immovable property at a total amount of N$73 555.40 from the 1st defendant and to pay the transferring costs.
In terms of the agreement the plaintiff had an obligation to make sure that all the necessary documents to effect the registration of the immovable property are timeously obtained and delivered at the Alienation Unit. In turn, the first defendant would grant the transfer of the property to the plaintiff without delay upon acceptance of the offer and payment of the purchase price. The plaintiff duly performed all her obligations in terms of the agreement by making all the necessary payments for the purchase of the immovable property and the transfer costs.
The plaintiff discovered upon effecting the transfer that the Erf number 1133 stipulated in the offer to sell was not the Erf Number of the property she currently resides in. It is clear from the papers that the written agreement concluded by the plaintiff and the first defendant did not reflect the common intention of the parties. The common intention was for the first defendant to sell the plaintiff the property where the Plaintiff was residing, which is Erf 1146 and not Erf 1133 as indicated on the offer to sell. The plaintiff claimed that despite demand the 1st defendant failed and /or continued to refuse to rectify the mistake in order for the plaintiff to transfer the property into her name.
The plaintiff sued the defendants seeking an order directing the first defendant to rectify the Erf number on the written agreement of sale to reflect Erf Number 1146 as opposed to Erf Number 1133; an order directing the first defendant to take all the necessary steps to ensure that the correct property is transferred to the plaintiff; an order that, if the first defendant within 14 days of the Courts order to take the necessary steps, the Deputy sheriff be authorized to take such steps on behalf of the first defendant; Costs of suit and other alternative relief.
The defendants defended the claim and filed a plea to the plaintiff’s particulars of claim. The defendants in amplification of their denial, pleaded that the written agreement entered to by both parties did reflect the common intention of the parties. The plaintiff was issued with a copy of the agreement to read and no objections were raised. The defendants plead that the plaintiff was erroneously given an offer to buy Erf 1133, Rundu, and that this immovable property is not earmarked for sale as it is reserved for public administration and future governmental use and cannot be sold. The defendants further argued that Erf 1146, Rundu, is not registered at the deeds office and Government does not sell unregistered properties. The defendants therefore proposed a refund of the monies paid in the amount of N$78 181.75.
CHRISTIAAN AJ had to determine a number issue of fact and of law as fully set out in the pre-trial order, and having heard the evedence by the witnesses, discussed the applicable legal principles as follows. In Shikale N.O. v Universal Distributors of Nevada South Africa (Pty) Ltd 2015 (4) NR 1065 at paragraphs 27 and 28, the following was said with regards to the law relating to rectification of contracts:
‘The court a quo referred to the principles applicable to rectification; so did counsel on both sides, including the principle requiring what a litigant seeking a rectification of a written document must allege and prove as set out in Denker v Cosak and Others 2006 (1) NR 370 at 374E and as approved by this court in Namibia Broadcasting Corporation v Kruger and Others 2009 (1) NR 196 (SC) at 224 F, namely:
“(a) an agreement between the parties which had been reduced to writing;
(b) That the written document does not reflect the common intention of the parties correctly. In Benjamin v Gurewitz 1973 (1) SA 418 (A) at 425H Van Blerk JA says that in reforming an agreement all the Court does is to allow to be put in writing what both parties upon proper proof intended to be put in writing and erroneously thought they had (cf Meyer v Merchants’ Trust Ltd 1942 AD 244 at 253);
(c) An intention by both parties to reduce the agreement to writing;
(d) That there was a mistake in the drafting of the document. See Von H Ziegler and Another v Superior Furniture Manufacturers (Pty) Ltd 1962 (3) SA 399 (T) at 411F-H. Rectification and unilateral mistake are mutually exclusive concepts. See Sonap Petroleum (SA) (Pty) Ltd (formerly known as Sonarep (SA) (Pty) Ltd) v Pappadogianis 1992 (3) SA 234 (A);
(e) The actual wording of the agreement as rectified. See Levin v Zoutendijk 1979 (3) SA 1145 (W) at 1147H-1148A.”
[35] A number of these principles are emphasised in the following cases –
‘In Benjamin v Gurewitz, supra, where Van Blerk JA had this to say at 425H-426A:
‘‘It remains to consider whether on proof of the common intention of the parties and of an error deliberately caused by one of the parties, the respondent would be entitled to claim a rectification of the contract. As De Villiers JA says in Weinerlein v Goch Buildings Ltd, supra, in reforming an agreement, all the Court does is to allow to be put in writing what both parties upon proper proof intended to put in writing and erroneously thought they had. This dictum postulates, as the same learned Judge says at p 288, the existence of an earlier agreement, an agreement in most cases antecedently arrived at by the parties; and the disparity between the preceding agreement and the subsequent written agreement will generally be the result of a bona fide mutual mistake made merely by accident. The mistake may, however, also be caused intentionally by one of the parties by dolus of one of the parties.’’ (Weinerlein’s case at p 291.)
2) Netherlands Bank of South Africa v Stern N.O. and Another 1955 (1) SA 667 (W) where Williamson J said at 672 C-F:
‘‘But the party so seeking to rely upon a right to claim a rectification must establish the facts justifying a rectification “in the clearest and most satisfactory manner” . . . . The decision in the case of Meyer v Merchant’s Trust Ltd, 1942 AD 244, made it clear that, in order to obtain rectification, it was not necessary to show that an antecedent agreement between the parties had by mistake not been embodied in the writing of the document sought to be rectified; it is sufficient if it is proved that the parties did have a common intention in some respect which they intended to express in the written contract but which through a mistake they failed to express’’.
3) Levin v Zoutendijk, supra, where Coetzee J pointed out at p 1147H:
“The purpose of an action for rectification is to reform a written document in a specific fashion and a wholesome practice has developed over the years to draft the actual wording of the term omitted and to pray that that be inserted at a suitable place in the writing . . . . It is essential for any party to a written contract to know what the other party contends regarding the actual wording of the contract. Important rights and obligations may arise or be affected by the form of a written contract”.
The last sentence in this quotation is quite apposite as regards the situation that obtained in the present case. At p 1148A the Learned Judge also stated:
“The very cause of action for rectification postulates that the parties’ agreement or common intention was clear and unmistakable on those aspects in respect whereof the writing is to be reformed. Cf Anglo-African Shipping Co (Rhod) (Pty) Ltd v Buddeley and Another 1977 (3) SA 236(R) at 241”
4) Von Ziegler and Another v Superior Furniture Manufacturers (Pty) Ltd 1962 (3) SA 399 where Trollip J said at 409H:
“. . . in practice our Courts rigorously insist upon the party who relies on rectification, pleading all the essentials thereof and proving them on a substantial balance of probabilities (see, for example Lax v Hotz, 1913 CPD 261 at p 266; Venter v Liebenberg, 1954 (3) SA 333 (T) at p 337; Senekal v Home Sites (Pty) Ltd, 1947 (4) SA 726 (W) at p 730; Bardopoulos & Macrides v Multiadous, 1947 (4) SA 860 (W) at pp 863-864; Netherlands Bank of South Africa v Stern, N.O., 1955 (1) SA 667 (W) at p 672B-F).”
5) South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (AD) where Corbett JA pointed out at 548A-C that the word onus has been used to denote two distinct concepts:
“(i) The duty which is cast on the particular litigant, in order to be successful, of finally satisfying the court that he is entitled to succeed on his claim or defence, as the case may be; and
(ii) The duty cast upon a litigant to adduce evidence in order to combat a prima facie case made by his opponent. Only the first of these concepts represents onus in its true and original sense. In Brand v Minister of Justice and Another, 1959 (4) SA 712 (AD) at p 715, Ogilvie Thompson, JA, called it “the overall onus”. In this sense the onus can never shift from the party upon whom it originally rested. The second concept may be termed, in order to avoid confusion, the burden of adducing evidence in rebuttal (“weerleggingslas”). This may shift or be transferred in the course of the case, depending upon the measure of proof furnished by the one party or the other. (See also Tregea and Another v Godart and Another, 1939 AD 16 at p 28; Marine and Trade Insurance Co Ltd v Van der Schyff, 1972 (1) SA 26 (AD) pp 37-39)”.
[36] Considering the above, it is clear that the rectification of contracts is based on a common mistake between the parties to a contract. It is further based on the premise that at the time of executing the written agreement, the parties had a common intention which, as a result of a mistake on the part of both parties, the agreement failed to accurately reflect.
[45] Considering the evidence and pleadings presented, I am of the view that the plaintiff’s reliance on rectification is doomed to fail. The court is inclined to refuse the grant of the prayer for rectification as sought by the plaintiff.
Held that, the principles applicable to rectification of contracts must be complied with before a court can order such a rectification.
As a result, the prayers for rectification as sought by the plaintiff were dismissed with costs. The first defendant was ordered to reimburse the plaintiff the the total amount of N$ 78 181.75 paid towards the purchase of Erf 1133, Rundu and costs incurred by the plaintiff in effecting the transfer of the property.
Chikusi v Minister of Works and Transport (HC-MD-CIV-CON-2021-02688) [2023] NAHCMD 87 (03 March 2023)