Shoprite Checkers (Pty) Ltd v Bumpers Schwarmas CC and Others (231/2002) [2003] ZASCA 57; [2003] 3 All SA 123 (SCA); 2003 (5) SA 354 (SCA) (30 May 2003)

Shoprite Checkers (Pty) Ltd v Bumpers Schwarmas CC and Others (231/2002) [2003] ZASCA 57; [2003] 3 All SA 123 (SCA); 2003 (5) SA 354 (SCA) (30 May 2003)

The Supreme Court of Appeal found that the respondents failed to discharge the onus of proving a common continuing intention that the lease to be negotiated would be on the same terms as the Palmer lease, save for period and rental. The evidence of Hirschfield and Fine, representatives of the owner of the premises, established that both parties to the sale agreement were aware that the owner required a development clause obliging the tenant to vacate the premises for redevelopment. This clause was not present in the Palmer lease. The court held that the respondents' version was improbable and unsupported by the evidence, and that the trial court erred in granting rectification. The appeal...

Citation
[2003] ZASCA 57
Parties
Appellant: Shoprite Checkers (Pty) Ltd; Respondent: Bumpers Schwarmas CC; Respondent: Rudolf Jacobus Klopper; Respondent: Madelaine Johanna Klopper
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 May 2003
Case Number
231/2002
Procedural Posture
Civil Appeal / Appeal From High Court, With Leave
Outcome
Appeal upheld. Rectification of the sale agreement refused. Costs awarded against the respondents.
Judges
Marais JA, Cloete JA, Heher AJA
Legal Topics
Rectification of Contract, Lease Agreement, Onus of Proof, Costs Award
Commercial and Corporate Civil Procedure Rectification of Contract Lease Agreement Onus of Proof Costs Award

Case Brief

Summary, issues, holding and outcome

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Parties

Shoprite Checkers (Pty) Ltd

Appellant

Bumpers Schwarmas CC

Respondent

Rudolf Jacobus Klopper

Respondent

Madelaine Johanna Klopper

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court, With Leave

Legal Issues

  1. 1 Whether the respondents discharged the onus of proving that the sale agreement should be rectified to include an obligation on the appellant to negotiate a lease on the same terms as the Palmer lease, save for period and rental.
  2. 2 Whether the evidence justified the rectification sought by the respondents.
  3. 3 Whether the appellant was obliged to secure a lease for the first respondent on the terms alleged.

Ratio Decidendi

The Supreme Court of Appeal found that the respondents failed to discharge the onus of proving a common continuing intention that the lease to be negotiated would be on the same terms as the Palmer lease, save for period and rental. The evidence of Hirschfield and Fine, representatives of the owner of the premises, established that both parties to the sale agreement were aware that the owner required a development clause obliging the tenant to vacate the premises for redevelopment. This clause was not present in the Palmer lease. The court held that the respondents' version was improbable and unsupported by the evidence, and that the trial court erred in granting rectification. The appeal...

Court Disposition

Appeal upheld. Rectification of the sale agreement refused. Costs awarded against the respondents.

Orders

  • The costs of the appellant's application for condonation for the late filing of the notice of appeal are made costs in the appeal.
  • The respondents' application for amendments to the counterclaim is dismissed, and the respondents are ordered to pay the appellant's costs in connection therewith jointly and severally.