Booysen v Warren-Smith (6104/07) [2008] ZAECHC 50 (16 May 2008)

Booysen v Warren-Smith (6104/07) [2008] ZAECHC 50 (16 May 2008)

The court held that, for purposes of deciding an exception, the factual allegations in the pleadings must be assumed correct unless clearly untrue or improbable. The defendant's plea and counterclaim, when so interpreted, disclosed sufficient averments to sustain a claim for rectification based on common error. The fact that the omitted conditions may be vague or embarrassing was not relevant to the ground on which the exception was taken. The plaintiff failed to persuade the court that no cause of action was disclosed on any reasonable interpretation of the pleadings. Accordingly, the exception was dismissed.

Citation
[2008] ZAECHC 50
Parties
Plaintiff: Gay Booysen; Defendant: Geoffrey Lyster Warren-Smith
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
16 May 2008
Case Number
6104/07
Procedural Posture
Civil Procedure / Exception to Plea and Counterclaim
Outcome
Exception dismissed with costs.
Judges
J C H Jansen
Legal Topics
Rectification of Contract, Alienation of Land Act, Exception Procedure, Specific Performance
Civil Procedure Land and Property Rectification of Contract Alienation of Land Act Exception Procedure Specific Performance

Case Brief

Summary, issues, holding and outcome

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Parties

Gay Booysen

Plaintiff

Geoffrey Lyster Warren-Smith

Defendant

Procedural Posture

Civil Procedure / Exception to Plea and Counterclaim

Legal Issues

  1. 1 Whether the defendant's plea and counterclaim disclose averments necessary to sustain a defence and claim for rectification of the Deed of Sale.
  2. 2 Whether the omission of a special condition in the written agreement constitutes a common error justifying rectification.
  3. 3 Whether the requirements of the Alienation of Land Act render the agreement void or unenforceable.

Ratio Decidendi

The court held that, for purposes of deciding an exception, the factual allegations in the pleadings must be assumed correct unless clearly untrue or improbable. The defendant's plea and counterclaim, when so interpreted, disclosed sufficient averments to sustain a claim for rectification based on common error. The fact that the omitted conditions may be vague or embarrassing was not relevant to the ground on which the exception was taken. The plaintiff failed to persuade the court that no cause of action was disclosed on any reasonable interpretation of the pleadings. Accordingly, the exception was dismissed.

Court Disposition

Exception dismissed with costs.

Orders

  • The exception is dismissed with costs.