Malan v Syffert NO and Others (2444/14) [2015] ZAGPPHC 1119 (17 July 2015)

Malan v Syffert NO and Others (2444/14) [2015] ZAGPPHC 1119 (17 July 2015)

The court found that the applicant had, in fact, purchased both portions of the property, as evidenced by the intention of the parties, the occupation, and the exercise of the option by Irene Nel. The error in the sale agreement and transport deed, which referred only to Portion 1, was a clerical mistake that did not reflect the true agreement. Rectification is warranted to give effect to the parties' actual intention. The respondents' arguments based on a narrow reading of the documents and prescription were rejected, as the applicant only recently became aware of the error and prescription does not apply. The opposition was found to be opportunistic and contrary to the facts and law....

Citation
[2015] ZAGPPHC 1119
Parties
Applicant: D.F. Malan; Respondent: Mac Syffert N.O.; Respondent: C & C Delwerye CC; Respondent: E. Wagner N.O.; Respondent: Registrar of Deeds, Pretoria; Respondent: Master of the North Gauteng High Court; Respondent: Irene Nel
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 July 2015
Case Number
2444/14
Procedural Posture
Rectification Application / Judgment
Outcome
Application for rectification granted; counter-application for eviction dismissed.
Judges
C.P. Rabie
Legal Topics
Rectification of Contract, Rectification of Transport Deed, Registration of Property, Insolvency Proceedings, Prescription, Costs Order
Land and Property Civil Procedure Rectification of Contract Rectification of Transport Deed Registration of Property Insolvency Proceedings Prescription Costs Order

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Parties

D.F. Malan

Applicant

Mac Syffert N.O.

Respondent

C & C Delwerye CC

Respondent

E. Wagner N.O.

Respondent

Registrar of Deeds, Pretoria

Respondent

Master of the North Gauteng High Court

Respondent

Irene Nel

Respondent

Procedural Posture

Rectification Application / Judgment

Legal Issues

  1. 1 Whether the written sale agreement and two transport deeds relating to immovable property should be rectified to reflect the true intention of the parties.
  2. 2 Whether the applicant acquired rights to both portions of the property, including the portion subject to an option, and is entitled to registration thereof.
  3. 3 Whether prescription applies to the applicant's claim for rectification.

Ratio Decidendi

The court found that the applicant had, in fact, purchased both portions of the property, as evidenced by the intention of the parties, the occupation, and the exercise of the option by Irene Nel. The error in the sale agreement and transport deed, which referred only to Portion 1, was a clerical mistake that did not reflect the true agreement. Rectification is warranted to give effect to the parties' actual intention. The respondents' arguments based on a narrow reading of the documents and prescription were rejected, as the applicant only recently became aware of the error and prescription does not apply. The opposition was found to be opportunistic and contrary to the facts and law....

Court Disposition

Application for rectification granted; counter-application for eviction dismissed.

Orders

  • The written sale agreement between the applicant and the sixth respondent is rectified to describe the property as 'Portion 3 of Erf [...] of the town Schweizer Reneke, measuring 773 square metres'.
  • The applicant's transport deed (Deed T18324/04) is rectified to reflect the correct property description.