Blumenthal v Harris (344/85) [1987] ZASCA 58 (27 May 1987)

Blumenthal v Harris (344/85) [1987] ZASCA 58 (27 May 1987)

The Supreme Court of Appeal found that the evidence, particularly that of Mrs Blumenthal, established that both parties intended the sale and purchase of the remainder of erf 10023, excluding the triangular portion ABF. The written agreement and deed of transfer did not accurately reflect this intention due to a mutual error. The respondent's version was found inherently improbable and contradicted by the conduct of the parties and the physical demarcation of the property. The court held that rectification of the deed of transfer was warranted to reflect the true intention, and that the respondent was required to remove the buildings encroaching on the appellant's property. The appeal was...

Citation
[1987] ZASCA 58
Parties
Appellant: Cyril J.F. Blumenthal; Respondent: Charles J. Harris
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 May 1987
Case Number
344/85
Procedural Posture
Civil Appeal / Appeal From Trial Court Judgment
Outcome
Appeal upheld; trial court's order set aside; rectification of deed of transfer granted; respondent ordered to remove encroaching buildings; costs awarded to appellant.
Judges
Joubert, Smalberger, Nestadt, Nicholas, Boshoff
Legal Topics
Rectification of Deed, Mutual Error, Boundary Dispute, Removal of Encroachment
Land and Property Civil Procedure Rectification of Deed Mutual Error Boundary Dispute Removal of Encroachment

Case Brief

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Parties

Cyril J.F. Blumenthal

Appellant

Charles J. Harris

Respondent

Procedural Posture

Civil Appeal / Appeal From Trial Court Judgment

Legal Issues

  1. 1 Whether the deed of transfer and sale agreement should be rectified to reflect the parties' true intention regarding the property sold.
  2. 2 Whether there was a mutual error in the description of the property in the sale documents.
  3. 3 Whether the respondent must remove buildings encroaching on the appellant's property.

Ratio Decidendi

The Supreme Court of Appeal found that the evidence, particularly that of Mrs Blumenthal, established that both parties intended the sale and purchase of the remainder of erf 10023, excluding the triangular portion ABF. The written agreement and deed of transfer did not accurately reflect this intention due to a mutual error. The respondent's version was found inherently improbable and contradicted by the conduct of the parties and the physical demarcation of the property. The court held that rectification of the deed of transfer was warranted to reflect the true intention, and that the respondent was required to remove the buildings encroaching on the appellant's property. The appeal was...

Court Disposition

Appeal upheld; trial court's order set aside; rectification of deed of transfer granted; respondent ordered to remove encroaching buildings; costs awarded to appellant.

Orders

  • The deed of transfer is rectified by deleting the description of the immovable property transferred and substituting 'Remainder Erf 10023 East London (Bonnie Doon Township Extension No 10) Municipality and Division of East London Measuring 1601 square metres'.
  • The respondent is directed to remove buildings encroaching upon the portion of immovable property marked ABF on the diagram annexure C to the particulars of claim, described as Portion 1 of Erf 10023.