Jacobs v Southey and Others (724/14) [2015] ZANCHC 12 (24 April 2015)

Jacobs v Southey and Others (724/14) [2015] ZANCHC 12 (24 April 2015)

The court found that both parties were aware that the loan approved and paid was R675,000, not R750,000 as stated in the written agreement. Both parties acted in accordance with the oral agreement and ignored the non-variation clauses, with the property transferred and the reduced amount paid. The oral agreement, though not recorded, was consistent with the parties' conduct and intention. The court held that the requirements for rectification were met, as the written agreement did not reflect the true intention due to a mutual mistake. The exception to the counterclaim was dismissed, and rectification was granted to align the written agreement with the parties' actual agreement.

Citation
[2015] ZANCHC 12
Parties
Plaintiff: Albert Williams Jacobs; Defendant: Karen Southey; Defendant: Standard Bank of South Africa; Defendant: Registrar of Deeds
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
24 April 2015
Case Number
724/14
Procedural Posture
Civil Procedure / Exception to Counterclaim; Application for Rectification
Outcome
Exception dismissed with costs; application for rectification granted with costs; written agreement rectified as ordered.
Judges
BM Pakati
Legal Topics
Rectification of Contract, Non Variation Clause, Alienation of Land Act, Oral Agreement, Mutual Mistake
Land and Property Civil Procedure Rectification of Contract Non Variation Clause Alienation of Land Act Oral Agreement Mutual Mistake

Case Brief

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Parties

Albert Williams Jacobs

Plaintiff

Karen Southey

Defendant

Standard Bank of South Africa

Defendant

Registrar of Deeds

Defendant

Procedural Posture

Civil Procedure / Exception to Counterclaim; Application for Rectification

Legal Issues

  1. 1 Whether the first defendant's counterclaim discloses a cause of action for rectification of the written agreement.
  2. 2 Whether the oral agreement and subsequent conduct of the parties justify rectification despite the non-variation clauses.
  3. 3 Whether the requirements for rectification as set out in Propfokus and related authorities are met.

Ratio Decidendi

The court found that both parties were aware that the loan approved and paid was R675,000, not R750,000 as stated in the written agreement. Both parties acted in accordance with the oral agreement and ignored the non-variation clauses, with the property transferred and the reduced amount paid. The oral agreement, though not recorded, was consistent with the parties' conduct and intention. The court held that the requirements for rectification were met, as the written agreement did not reflect the true intention due to a mutual mistake. The exception to the counterclaim was dismissed, and rectification was granted to align the written agreement with the parties' actual agreement.

Court Disposition

Exception dismissed with costs; application for rectification granted with costs; written agreement rectified as ordered.

Orders

  • The exception is dismissed with costs.
  • The application for rectification is granted with costs.