Swartzberg v Leon Swartzberg & Company (Pty) Ltd. (373/95) [1997] ZASCA 10 (14 March 1997)

Swartzberg v Leon Swartzberg & Company (Pty) Ltd. (373/95) [1997] ZASCA 10 (14 March 1997)

The Supreme Court of Appeal found that the evidence, including board minutes and witness testimony, established a continuing common intention that the Swartzberg lease and the Bradmarc lease would terminate concurrently. The written lease contained a mistake regarding the year of termination, resulting from a common error. The court held that rectification was justified, substituting the true intention for the erroneous written terms. The purported exercise of the renewal option in August 1988 was too late under the rectified contract, and the lease terminated on 28 February 1993. The appellant failed to allege or prove a new agreement for occupation beyond that date. Accordingly, the...

Citation
[1997] ZASCA 10
Parties
Appellant: Leon Swartzberg; Respondent: Leon Swartzberg & Company (Proprietary) Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
14 March 1997
Case Number
373/95
Procedural Posture
Civil Appeal / Appeal From Witwatersrand Local Division
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Mahomed, E M Grosskopf, Nienaber, Howie, Streicher
Legal Topics
Rectification of Contract, Lease Agreement, Common Error, Option to Renew, Contractual Intention
Commercial and Corporate Land and Property Rectification of Contract Lease Agreement Common Error Option to Renew Contractual Intention

Case Brief

Summary, issues, holding and outcome

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Parties

Leon Swartzberg

Appellant

Leon Swartzberg & Company (Proprietary) Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From Witwatersrand Local Division

Legal Issues

  1. 1 Whether the Swartzberg lease was still current during the month for which the appellant claimed rental.
  2. 2 Whether the written lease should be rectified to reflect the parties' true intention that both leases terminate concurrently.
  3. 3 Whether a common error justified rectification of the lease agreement.

Ratio Decidendi

The Supreme Court of Appeal found that the evidence, including board minutes and witness testimony, established a continuing common intention that the Swartzberg lease and the Bradmarc lease would terminate concurrently. The written lease contained a mistake regarding the year of termination, resulting from a common error. The court held that rectification was justified, substituting the true intention for the erroneous written terms. The purported exercise of the renewal option in August 1988 was too late under the rectified contract, and the lease terminated on 28 February 1993. The appellant failed to allege or prove a new agreement for occupation beyond that date. Accordingly, the...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.