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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

CASE NO: 6401/2007

DATE HEARD: 20 – 22/10/ 2010

DATED DELIVERED: 4 /11 2010

In the matter between

GAY BOOYSEN ….......................................................................................Plaintiff

vs

GEOFFREY LESTER WARREN-SMITH …...............................................Defendant

JUDGMENT

PICKERING J:

The plaintiff and the defendant entered into a written agreement of sale in terms whereof the plaintiff purchased from the defendant certain immovable property more fully described as a portion of erf 484, Morgan Bay, for a price of R250 000,00. The plaintiff and the defendant signed the deed of sale on 6 May 2003 and 21 April 2003 respectively. It is common cause that the plaintiff has paid the purchase price and associated costs in respect of the registration of the transfer of the said property but that, despite this, the defendant has refused to pass transfer thereof into her name. The plaintiff has accordingly instituted an action against defendant for, inter alia, an order calling upon the defendant to sign all documents and take all steps necessary to effect the registration of such transfer.

In his plea the defendant admits having entered into the written agreement but pleads that the deed of sale does not correctly reflect the common intention of the parties as it existed at the time when the agreement was reduced to writing. The defendant pleads that the special purpose for which the deed of sale was concluded and the “true, real and essential nature” of the transaction between himself and plaintiff was to enable the plaintiff to assist her daughter and son-in-law, one Jonathan Bosazza (“Bosazza”), to purchase the property for the social upliftment of the Morgan Bay rural community by providing the funding for the purchase price on certain specific conditions, which conditions I will refer to hereunder. The defendant pleads further that the failure to record the true agreement between the parties was occasioned by a common error of the parties. That common error, which resulted in a failure to insert the conditions in the contract, was occasioned by the bona fide but mistaken belief that the cordial relationship existing at the time of the signing of the agreement between the plaintiff, her daughter and her son-in-law would remain stable and that all parties and in particular the plaintiff would honour the reciprocal obligations undertaken between them. It was further pleaded that the sale was always intended by the parties to be conditional on the plaintiff transferring the property to Bosazza for development as an agricultural village and cultural tourist attraction for the upliftment of the rural community of Morgan Bay. It was further pleaded that the attorney who prepared the deed of sale was fully informed of this special purpose of the sale of the land to the plaintiff but nevertheless, because of the cordial relationship existing between the parties, decided not to include that condition in the agreement.

In his counterclaim the defendant repeats his plea that the deed of sale does not correctly record the true agreement between the parties in that it does not record the special purpose for which the property was sold to the plaintiff; that the failure to record such special purpose arose as a result of the common error of the parties referred to and pleads further that “the Deed of sale was signed in the bona fide but mistaken belief that it recorded as much of the true detail of the agreement between the parties as would be necessary to give effect to the envisaged project for community upliftment at Morgan Bay.”

The defendant pleads accordingly that the deed of sale should be rectified so as to conform with the common intention of the parties by the addition of paragraph 22 to the deed of sale in the following terms:

“Special condition

22.1 It is specifically recorded that it is the intention of the Purchaser and Seller that the Purchaser will take all necessary steps to transfer the subject property to Mr. J. Bosazza as soon as practicable after the property has been registered in the name of the Purchaser.

22.2 The parties hereto further record that the said property is sold subject to the following specific conditions:

22.2.1 that the Purchaser pass transfer to J. Bosazza as aforesaid, and

22.2.2 that Mr. Bosazza develop the property to the benefit of the local community at Morgan’s Bay by concluding a Joint Venture Agreement between himself, the Seller (Mr. G.L. Warren-Smith) and the elected representatives of the rural community of Morgan’s Bay, for the purposes of establishing a cultural village on the property, tourist accommodation and a centre for natural and sustainable agricultural training, and

22.2.3 that Mr. J. Bosazza subdivide a portion of the property, 1 000 square metres in extent, which portion will be retained by the Purchaser in lieu of repayment of the purchase price and related costs.”

An exception was taken to the defendant’s plea and counterclaim on the basis that in terms of the proposed clause 22 the transfer of the property from the plaintiff to Bosazza and a subsequent transfer by Bosazza to the plaintiff of a portion of property would constitute an alienation of land which would be of no force and effect unless contained in a deed of alienation signed by the parties. Because the defendant makes no allegation that such deeds of alienation had been completed and had not annexed such deeds of alienation to his plea or counterclaim the agreement was therefore void and unenforceable by reason of the provisions of the Alienation of Land Act no 68 of 1981.

This exception was heard and dismissed by Jansen J and the matter then proceeded to trial before me. Mr. Cole, who appeared on behalf of the defendant, accepted at the outset that the defendant bore the onus of establishing his claim for rectification and commenced with the leading of evidence.

Mr. Jonathan Bosazza testified on behalf of the defendant. He confirmed that at the time of signing the deed of sale he was the plaintiff’s son-in-law, being married at the time in terms of the accrual system to plaintiff’s daughter, Maryna. He is presently working as a thatching and building contractor but has a number of skills in other fields as diverse as vegetable gardening, welding, panel beating, screen printing and stained glass production.

From 1994 onwards he was living and working on a farm owned by his mother, Mrs. Jennifer Bosazza, at Brakfontein. At some stage he and his wife met up with another couple, Mr. and Mrs. Röhm, who were in the process of setting up a caravan park at Morgan Bay. He visited them at Morgan Bay and, whilst there, saw the particular property with which this case is concerned. He liked it and thought it would be suitable for growing vegetables for sale to the hotel and surrounding area. He accordingly spoke to the defendant, the owner of the property, about it. The defendant was interested and agreement was reached between them concerning his occupation of the property. Accordingly, Bosazza, his wife and young family moved onto the property during 1999, at first living in a small outbuilding and in tents. Eventually his mother sold the Brakfontein property and gave him the proceeds in order to assist him to build a house. Using these proceeds he built a double story thatched house as well as a workshop. He began a large scale vegetable garden, employing members of the local community, and setting up the necessary irrigation system. He was also assisted financially in the installation of the requisite pipes and water works by plaintiff who paid half of the costs thereof in an amount of R57 000,00.

Once the vegetable garden was operative he began supplying vegetables to the hotel and to East London. He was also involved in a project to train members of the local community in screen printing. At the same time he and his wife had a larger vision for the property, a vision which was shared by Mr. and Mrs. Röhm. Their ideas in this regard were encapsulated in a number of documents written by Maryna. These documents are contained in Exhibit A. In these documents the shared vision of Bosazza and Maryna is set out. Maryna states, inter alia, that they had “a very strong desire to create a community which is going to benefit the greater community of Morgan Bay and surrounding area.” It is not necessary to go into the detail thereof but it appears that their desire was also to inspire people to start their own gardens and to grow vegetables and fruit trees. In Exhibit A7 Maryna states that “some aspects of the vision are to make more people more self-sufficient; to make Morgan Bay more self sufficient; to help bridge the gap between people and environment; and for social interaction.”

A rough draft of a “constitution and development proposal” for erf 484 was prepared by Mrs. Röhm. (Exhibit A8) In terms of this proposal, inter alia, it was envisaged that the property would function as a “sustainable, functioning eco-village environment.” It was further envisaged that a portion of the property known as “the garden” or “agricultural zone 1” would be created in order to benefit the greater community of Morgan Bay. It would be, inter alia, a “centre for learning through action to inspire people in Morgan Bay to become more self-sufficient.” Furthermore, “marginal groups would be integrated by providing meaningful work offering the opportunity to participate on a partnership basis.”

Bosazza aligned himself with Mrs. Röhm’s vision for the “agricultural zone 1”. Discussions with defendant were ongoing. On 9 July 2000 defendant himself prepared a document setting out his vision for the area. (Exhibit A13).

Once Bosazza had finished building his house he began negotiating with the defendant for the purchase of the property. On 20 April 2001 the defendant prepared a document (Exhibit A14) in which he dealt with the issue of the purchase price of the property. After various negotiations a purchase price of R250 000,00 was agreed upon between defendant and Bosazza. It was their intention that Bosazza would purchase the property in his own name. He, however, did not have money available nor was he able at that stage to raise a bond. At this time plaintiff and her husband came to Morgan Bay on holiday. They were concerned that Bosazza had invested a large amount into a property in respect of which he had no title. Bosazza told plaintiff that he wanted to develop the property in a way that would benefit and uplift the local community. He told her that he intended to enter into a partnership with the local community so as to create sustainable employment opportunities for unemployed households as well as to impart agricultural skills to would-be gardeners. Plaintiff, as Bosazza put it, did not have a great opinion of these plans. She wanted, however, to secure the property for the sake of Bosazza and his family. She accordingly offered to purchase it as, in his words “a loan for us, to assist us, so that we did not have the pressures of an immediate loan of sorts.” She was, he said, “desperate for us to procure the property so that we could own the property.” It was agreed that she would in due course transfer the property to Bosazza and Maryna and would in some way receive recompense, one of the suggestions being the transfer to her of one or two plots. According to Bosazza no one was concerned at that stage with the actual mechanics of such recompense.

Bosazza stated that plaintiff was well aware of and understood what underlay the purchase of the property. Having negotiated the terms and price with defendant, Bosazza then left the rest up to plaintiff and played no part in the drafting or signature of the deed of sale. He was aware that the special conditions underlying the sale of the property did not appear in the deed of sale but he did not take this up with plaintiff because he knew nothing about such matters. He stated that at the time there were certain problems in his marriage. He had been obliged for financial reasons to seek work elsewhere during approximately 2001. This had put a strain on his marital relationship. He and his wife had eventually finally separated during 2005. Their separation was followed by lengthy and hostile divorce and custody litigation which only culminated in 2009, with Bosazza being awarded custody of the four children. As a result of the breakdown of his marriage his relationship with plaintiff deteriorated substantially, the custody dispute in particular driving a huge wedge between them.

In the meantime, the sub-division of the property, in accordance with the agreement reached with defendant who wished to retain a portion of erf 484, had not yet been approved. Clause 20.1 of the deed of sale provided that the sale was subject to the relevant authorities approving the sub-division of erf 484 so as to enable the sold portion to be sub-divided therefrom. It proceeded further to provide that the sale was subject to such approval being granted within 6 months from the date of the last signature thereof provided that, if such approval had not been obtained within that period, the plaintiff in her sole discretion could extend the period for a further 6 months.

At some stage Bosazza consulted with his own attorney concerning the deed of sale and it was pointed out to him that the time period provided for in clause 20.1 had long expired and that the sale had accordingly lapsed. Bosazza then spoke to defendant about this and consulted at defendant’s instance with defendant’s attorney, Mr. Kingon. Defendant readily agreed to delete the provisions relating to the time period. The deed of sale was amended accordingly and signed by both plaintiff and defendant during approximately September 2006.

At this time Maryna was still living on the property and, despite their break-up, they were in agreement that they proceed with the sale and thereafter with the plans envisaged for the property. According to Bosazza he had sought the deletion of the time periods in order to salvage the sale because he knew that in terms of the agreement the property would ultimately be transferred to him. Were this not so he would never have acted in such a manner. He stated that at that time his financial position had improved. He also had the option, previously mooted by defendant, of defendant raising a bond on his behalf and of him repaying the defendant.

After the amendment of the deed of sale plaintiff called a meeting which was attended by herself and her husband, Bosazza and Maryna, Bosazza’s parents and one Brian Berkowitz. To the best of Bosazza’s recollection this meeting was held during December 2006 although it was put to him by Mr. Schoeman, who appeared on behalf of plaintiff, that it was in fact held during April 2007. Nothing appears to turn on this issue.

According to Bosazza plaintiff opened the meeting and stated that she had changed her mind concerning the property and that rather than give effect to the prior oral agreement she was going to keep it for herself. She suggested that Bosazza and Maryna enter into some sort of business arrangement on the small portion of the property marked “C” on the map (Exhibit A4). Bosazza’s father was upset at this and he, Mrs. Bosazza and Bosazza walked out of the meeting. With regard to a document (Exhibit B) headed “Meeting with John Bosazza and his parents during April 2007” prepared by plaintiff, Bosazza stated that he had no recollection that the matters dealt with therein had been discussed. That document reads, inter alia, as follows:

“My proposals were:

1. The property says (sic) in my name

2. Sell the smaller plot that has been subdivided off. The proceeds from this would be used for:

• Pay SARS Capital Gains Tax

• Pay Agents commission

• Money set aside for the immediate assessment of the children and their near term schooling

• Money would be made available to start a business on the property. John and Maryna to form a cc to run this business. They will have to provide a business plan for this, and both will have to be involved in the business.

If John was not in agreement with this:

1. He can put in a claim through his lawyer for the amount he has spent on the farm.

2. We will put in a counter claim for what we have spent.

3. We will put in a claim for the money spent since the beginning of this year to help Maryna support herself and the children.

John was not in agreement with this and demanded a 1/3 share in the property. His father said if we did not agree to this, we would be taken to court. Thereafter, they terminated the meeting and walked out.”

Bosazza stated that he had no recollection that all the matters dealt with therein had been discussed and that, as far as he was concerned, the meeting had been very short and had terminated shortly after plaintiff had said that she had changed her mind.

It was put to him by Mr. Schoeman that he had threatened plaintiff, saying, inter alia, that “bad things” would happen to her. He denied this. He admitted having demanded a one third share in the property but stated that this had occurred during settlement negotiations after litigation had commenced.

He reiterated that it had never been the intention of the parties that plaintiff would purchase the property for her personal use. He reiterated that had he known that plaintiff had “changed her mind” in this regard he would never have negotiated the amendment of the subdivision clause in order to salvage the deed of sale. He would then rather have negotiated a new deed of sale with defendant in his own name. He stated further that he would not have carried on ploughing money into a property that did not belong to him after having done so for approximately 5 to 6 years.

Mrs. Jennifer Bosazza, the mother of Jonathan Bosazza, confirmed in her testimony that after Bosazza and Maryna left Brakfontein farm and moved to Morgan Bay that farm was sold. She paid her share of the proceeds, approximately R120 000,00, over to Bosazza to help him to get started with the building of the house and workshop and the development of the vegetable garden. Bosazza told her at some stage that he was negotiating the purchase of the property from defendant and outlined his plans for the development thereof.

During 2005 her son’s marital relationship finally fell apart. During December 2006 she attended the meeting called by plaintiff in Morgan Bay with her husband. She had assumed that the purpose of the meeting was to come to an agreement that Bosazza and Maryna would have title to the property.

She stated that plaintiff took charge of the meeting, saying that she was distressed at the break up of the marriage. Plaintiff then said that in the light of the problems she had changed her mind and was going to keep the property. She suggested that Bosazza and Maryna might set up a commercial venture on a small portion of the property, a suggestion, which according to Mrs. Bosazza, was quite impractical given the family circumstances.

Her husband, who has since died, was shocked and angry at plaintiff’s change of mind and the Bosazza family then stood up and left the meeting.

Mrs. Bosazza stated that she was unsure whether the matters listed in the alleged minutes (Exhibit B) had been discussed. It was put to her under cross examination by Mr. Schoeman that it was strange that she could not recall this. She replied that this was because she and her husband had been shocked by plaintiff’s statement concerning her change of mind. She conceded, however, in view of her recollection that the meeting had taken approximately half an hour to three quarters of an hour that those issues may well have been discussed.

Mr. Röhm testified that he was presently the owner of a tourism business at Morgan Bay where he had been resident for 12 years. He had started the caravan park at Morgan Bay with defendant, renting the property from defendant for that purpose. He confirmed Bosazza’s evidence as to their shared vision for the disputed property. He and his wife had drawn up the document (Exhibit A8 – 12) detailing their proposal for development of the property. They had done so after informal meetings between Bosazza and defendant from which it was clear that defendant shared their vision and that he would never have contemplated selling the property to a private individual. He stated that there was an extremely high level of unemployment at Morgan Bay and that they wanted to assist the local community.

Defendant himself testified. His father had started the Morgan Bay hotel and he had joined him during 1962. From that time he had been concerned about the plight of the local black community and the lack of proper housing and facilities for them. Defendant was at the forefront of efforts to improve the living conditions of that community, including approximately 50 members of staff who were employed by the hotel. His efforts to secure proper housing for the black members of the local community in the apartheid years had resulted in a criminal conviction for which he had received a suspended sentence. He confirmed that Röhm leased the caravan park from him. According to him he and Röhm got on “famously”. They both shared the same vision of uplifting the local black community.

During 1999 Bosazza and Maryna came to Morgan Bay. They too were concerned with the upliftment of the community and had certain ideas and visions with which he fully agreed. They entered into certain discussions as a result of which, on 9 July 2000, he set out in writing some of his thoughts on the way forward (Exhibit A13). It is not necessary to detail these views here except to state that defendant envisaged, as also explained by him in his evidence, that workers on the project would be trained and eventually become partners.

Defendant stated that at some stage Bosazza offered to purchase the property. He was only prepared to sell it on the basis that the future development thereof involved the local community and its upliftment. He was not prepared to sell it to a private individual with nothing but a personal interest therein.

A price of R250 000,00 was agreed upon which defendant regarded as being on the low side. Bosazza, however, could not raise the requisite finance. Some time thereafter Bosazza advised him that his mother-in-law, the plaintiff, would back him. Defendant accordingly consulted with his attorney, Mr. Kingon, telling him that he was creating something for the local community. He stated that he was not sure if Mr. Kingon agreed with him, but nevertheless, the deed of sale (Exhibit A to the particulars of claim) was prepared in its present form. The specific conditions on which it was being sold were not included because, according to defendant, he had shaken hands with Bosazza on the deal. He trusted everyone and believed that the deal would be honoured. He, by his own admission naively, did not believe that there would be any problems down the line. In retrospect, so he said, those conditions should have been included in the deed of sale.

At the time, however, he believed that the property would eventually be transferred into Bosazza’s name and he told Mr. Kingon that Bosazza was in fact the purchaser. His instructions in this regard were conveyed by Mr. Kingon in a letter dated 15 May 2003, to the surveyors tasked with the subdivision of the property (Exhibit A15) in the following terms:

“Please note that although the property is being transferred to Mrs. Booysen, this is being done because she is supplying the finance for the purchase of the property. The actual beneficial owners of the property will be Mr. John Bosazza and his partners.”

Up to the time that both parties signed the deed of sale he had not spoken to plaintiff and had no dealings with her. He stated that he had no idea what was in her mind or not, save that he believed from what he had been told that she was stepping in to assist her son-in-law. As to the conditions which he now sought to include in the deed of sale he stated that he was not sure as to the person to whom plaintiff would be obliged to transfer it but Bosazza had been the driving force behind the purchase of the property and he presumed that it would go into Bosazza’s name. In this regard his evidence became somewhat vague and confused. Asked about plaintiff’s obligations in terms of the deed of sale and, in particular, to whom she was obliged to re-transfer it in due course he stated: “To the Bosazzas yes.” (My underlying).

Under cross-examination the following exchange occurred:

“Q You say in your view this property was going to go into Johnny’s name individually not Maryna her daughter?

A Well they were man and, I am not sure under what sort of ante-nuptial contract they were but I presume they were an entity.

Q You say the deal was that it was going to go to Johnny’s name, he is the individual? There is no talk that you say it should have gone to Maryna [interrupted].

A Well he was the driving force, yes.

Q So answer the question please.

A Into Johnny’s name.

Q Nothing to do with Maryna the daughter of the plaintiff?

A Not in writing but she had helped him up to that point yes.

Q Listen please [interrupted]

A Alright, how do you want it, into Johnny’s name.

Q Yes, not into Maryna’s name?

A No not to anybody else’s name, yes.”

He confirmed that he was unaware of regime governing the Bosazzas’ marriage. He was later asked:

“Q Your intention in selling the property was ultimately to benefit the local community?

A And the mother to help her children.

Q And the mother helps children through that joint venture?

A That is right.”

With regard to his intention in signing the deed of sale he stated:

“A (T)he fact is we sold it to plaintiff, that is my word, I signed yes. But that wasn’t the intention, yes.

Q But that was the intention between you and Johnny [interrupted].

A Absolutely.

Q We have covered that, I am not going to go there again.

A And Maryna yes.”

He confirmed that Bosazza and Maryna “would have the beneficial use”.

Asked whether the property was to go into “some sort of an entity where Johnny Bosazza was involved” he replied “His family yes.”

He stated that he had no concern with the issue as to whether or not Bosazza would in some manner repay plaintiff, had never discussed this with Bosazza and knew nothing of it at all. He had not intended this to be part of the contract.

With regard to the condition contained in the prospective clause 22.2.2 he said that there had only been some loose talk between himself and Bosazza concerning the joint venture to be entered into. Nothing firm had been decided in that regard.

He confirmed that he had agreed to delete the subdivision provision relating to time periods during September 2006, thereby reviving the deed of sale which had lapsed. Although the market price of the property would have risen in the intervening three years he was happy and willing to sell it at the previously agreed price because he wanted to keep the deal alive for the benefit of the community. Had he known that plaintiff was at that stage intending to keep the property for herself he would never have signed the amendment.

He stated that he had met plaintiff for the first time during August 2007. He had heard that Bosazza and Maryna had marital problems and was aware at some stage that only Maryna was living on the property. He heard also that the deal agreed upon with Bosazza was not going to happen. He consulted with Mr. Kingon as to whether he could substitute Bosazza as the purchaser but was advised to the contrary. During August 2007 plaintiff and her husband came to see him at the hotel. He could not dispute that she had done so because she had heard of his intention to cancel the sale. He could only remember one meeting but conceded under cross-examination that there might have been two as was alleged by plaintiff. They met in the lounge of the hotel and there was a heated discussion concerning the usage of the property. His evidence in this regard was as follows:

“She wanted to change, she wanted to tell me that she wanted to take the property for herself and I said sorry that is off with its head, I can’t allow that and she basically threw her toys out of the cot.”

Under cross-examination he reiterated that plaintiff and her husband asked “to change the usage and I said no.”

There was, he said, an unedifying scene in which, according to him, she acted as a woman scorned.

Plaintiff herself testified. She is currently a pensioner and the mother of Maryna, the ex-wife of Bosazza. She stated that after Bosazza and Maryna moved from Brakfontein to Morgan Bay she and her husband visited them on a number of occasions. It was clear to her that Bosazza and Maryna were struggling financially. She and her husband assisted them in a number of ways including loaning them money for the running of a farmstall and for fencing as well as grading the road up to the house.

During April 2003 she and her husband visited Morgan Bay over a weekend. They were looking for property to buy. Her husband suggested that rather than purchase a property for themselves they should purchase the defendant’s property so as to secure the future of Maryna and the children. Her husband accordingly went to see the defendant and offered him a price of R200 000,00 for the property. Defendant told him that he would think about it. Before defendant came back to them, however, Bosazza, on the same weekend, went of his own accord to defendant, without plaintiff’s knowledge, and offered him a further R50 000,00 in respect of the property. She initially stated that all the negotiations had been done by her husband before, reluctantly, conceding under cross-examination that the final deal had indeed been struck between defendant and Bosazza. She stated that Bosazza had returned and told her that defendant had accepted the price of R250 000,00. She conceded that she did not know whether he had offered an extra R50 000,00 or whether defendant had merely told Bosazza that he was prepared to sell the property for R250 000,00. Bosazza did not disclose to her the nature of his discussions with defendant. Plaintiff was prepared to purchase the property at the price of R250 000,00 and accordingly the deed of sale was drawn up by Mr. Kingon and in due course signed by plaintiff. She denied that she was merely the financier of the deal. It was always her intention to purchase the property in her own name. Although she initially disputed that it was the common intention of Bosazza and defendant that the property be developed for the upliftment of the local community through eco-friendly projects, she later conceded that she could not dispute this because she had not been present during their negotiations.

The money for the purchase price was obtained from the sale of a plot which she owned in Plettenberg Bay. This money has been paid to defendant’s attorney pending transfer.

At the time of signing the deed of sale plaintiff was aware that Bosazza and Maryna were experiencing marital problems and she was very concerned about this. According to her, her intention was always to be owner “because I felt I was holding it in security for the family.” It was put to her under cross-examination that she was intending to keep the property to the exclusion of Bosazza. She replied that she would have stipulated in her will that the property devolve upon Maryna and the children on her death and that if Bosazza was married to Maryna at the time he would benefit from this.

She attended to the subdivision of the property and paid for it in the sum of R17 000,00. She also paid R57 000,00 in respect of the installation of certain water pipelines. Up until the present day she has been paying the occupational rental in respect of the property.

She denied that there had ever been any agreement between herself and Bosazza to the effect that she would, after transfer of the property to her, retransfer it to him. She stated also that nothing had been mentioned to her concerning the usage of the property being for the upliftment of the local black community of Morgan Bay.

After the breakup of Bosazza’s marriage to her daughter Bosazza phoned her husband in December 2006 and aggressively demanded one third of the property. He made threats that terrible and bad things would happen to them should they not accede to this request.

Thereafter plaintiff called the meeting of the two families in April 2007 to discuss the various issues concerning the property. At this meeting she stated that the property would stay in her name because that had been her intention from the outset. She then set out the proposals contained in her minutes of the meeting (Exhibit B). She confirmed what had been put to Bosazza, namely that he had demanded one third of the property and that his father had said that if that demand was not acceded to they would take the plaintiff to court. The meeting ended with the Bosazza family becoming angry and walking out.

On 15 August 2007 plaintiff and her husband went to visit Maryna at Morgan Bay where she was now living alone with her children. They had heard that defendant and Bosazza had been to see Mr. Kingon in an attempt to amend the deed of sale by substituting Bosazza as the purchaser. They accordingly went to see the defendant at the hotel. In the course of the meeting he told them that he was no longer willing to sell and that he was cancelling the sale. According to plaintiff he mentioned his vision for the property involving Bosazza and the black community. This, according to plaintiff, was the first time that she had heard about what defendant’s vision for the property was. Under cross-examination she stated that she could not remember defendant having mentioned Bosazza’s name in this regard, although her earlier evidence had been to that effect. She stated further that defendant’s mention of the black community did not ring a bell with her because that was the first time that she had heard about the involvement of the black community. It was put to her that she had earlier testified that Bosazza and Maryna had themselves mentioned the black community to her. She stated that if they had done so it had been in the context of what they were doing with certain projects on the farms. These were not in depth discussions because much of the time she was busy with her grandchildren.

She agreed that she had a good and close relationship with Maryna. During her visits to Morgan Bay there was sometimes “loose talk” about growing vegetables and putting up chalets for people to come and sleep. She did not know anything concerning their plans for the upliftment of the local community. She stated that they had never said a word to her about that. All that she was aware of was that they were going to Morgan Bay to make a living for themselves, growing vegetables and providing accommodation for, amongst others, backpackers.

She stated that she knew that Bosazza and Maryna had been to see defendant on several occasions but she did not know what they had discussed. She then said that they had in fact told her that they had tried to negotiate the sale of the property with defendant but that they were not getting anywhere.

She then stated that when she had earlier said that she had never been told about their plans for the upliftment of the black community she had meant that it had never been discussed with her that she was purchasing the property for Bosazza and that she had to transfer it into his name for purposes of the said upliftment. Under further questioning she said that “they showed us the farm, they told us about the chalets, they told us about the backpackers, and that they would be employing people, so I presumed that was their vision for the black community, the employment.”

Reverting to the meeting with defendant plaintiff stated that they gave defendant a document setting out what their expenditure on the property over the years had been. He told them that he would think about it and they should return on Friday 17 August. They did so. He then told them that he was cancelling the deed of sale and that they could find out his reasons from his attorney.

Although plaintiff admitted having left the room at that stage as was stated by defendant, she denied that she had done so because she was angry or that she had “thrown her toys out of the cot”. She was in fact suffering from a migraine at the time. She had never asked defendant “to change the usage of the property.”

As to the specific conditions in respect of which defendant seeks rectification she denied that it had ever been agreed that she would transfer the property to Bosazza. She had no knowledge whatsoever of the condition relating to the development of the property and only became aware thereof for the first time when she saw defendant’s plea in February 2008. She denied also any knowledge of any suggestion that a plot or two be given to her as recompense for her loan.

She stated that at the time she met up with defendant during August 2007 Bosazza had left the property and Maryna was carrying on with the growing of vegetables. The vegetable operation then was no different to what it had been at the time of signature of the deed of sale in 2003. She eventually conceded that she in fact had no knowledge of the vegetable operation on the farm and had no basis at all for having said that there had been no difference in production.

She agreed that her relationship with Bosazza had soured from the time the divorce proceedings commenced. As to the custody dispute she stated that what Bosazza had done had broken their hearts. She insisted, however, that she did not dislike him but that certain behaviour of his had made her very unhappy. She stated that she did try to see his good points.

Plaintiff thereafter closed her case.

It would be convenient at this stage to state that although the pleadings flirt with the now discredited “common assumption as to a future state of affairs” concept, expounded in Williams v Evans 1978 (1) SA 1170 (C) – as to which see Christie: Law of Contract, 5^th Ed, at 327–8 – the real basis of the defendant’s case as it appears from the evidence led, is, in my view, as to the effect of the omission of the oral agreement from the written agreement. This is foreshadowed in paragraph 5.3 of the defendant’s counterclaim where it is pleaded that the deed of sale was signed “in the bona fide but mistaken belief that it recorded as much of the true detail of the agreement between the parties as would be necessary to give effect to the envisaged project for community upliftment at Morgan’s Bay, as set out in the defendant’s plea”.

It will have been seen from the summary of the evidence which I have set out above that the respective versions of the plaintiff and the defendant are irreconcilable and mutually destructive. This being the case the approach to be adopted is that expressed in National Employers’ General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E), most recently approved by the Supreme Court of Appeal in Baring Eiendomme Bpk v Roux [2001] 1 All SA 399 (SCA). At 440 D – G of the Jagers case, Eksteen AJP, with whom Zietsman J and Van Rensburg J agreed, stated as follows:

“It seems to me, with respect, that in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff’s allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true. If however the probabilities are evenly balanced in the sense that they do not favour the plaintiff’s case any more than they do the defendant’s, the plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the defendant’s version is false.”

I have approached the evidence of Bosazza with some degree of caution bearing in mind that on defendant’s case the contract was for his benefit and he clearly therefore had an interest in the successful outcome thereof.

In my view, however, Bosazza was an excellent witness whose clear evidence remained unshaken under cross-examination save in respect of his recollection of the date of the break up of his marriage. Mr. Schoeman made much of this supposed contradiction in his evidence, as well as of the fact that, as later transpired, he had spoken to his mother about the date during the luncheon adjournment. In my view nothing turns on this issue and his overall credibility is not affected thereby. In any event, some of the confusion arose from the somewhat confusing, double-barrelled nature of Mr. Schoeman’s question, namely, “the stage when your marriage broke down, I am trying to put a time frame on it, were there problems, when did problems first arise in the marriage?”

Mrs. Bosazza was also in my view an excellent witness. It might be argued that she had the motive of assisting her son to obtain the property but this proposition was never put to her under cross-examination and I certainly did not gain the impression that she was anything other than an honest witness.

Defendant too made an excellent impression upon me. He impressed me as a man of impeccable integrity who testified in a completely fair and honest manner. He is obviously a God-fearing man who believes that his word is his bond and that a handshake is sufficient to close a deal.

Plaintiff, on the other hand, was a far from impressive witness. As Mr. Schoeman himself was obliged to concede she was extremely long winded in her replies to straight forward questions. She often failed to answer the question which was being asked and created an overall impression of evasiveness and a lack of candour. Apart from the fact that her evidence was in certain material respects contradictory it was also, having regard to the evidence as a whole, improbable.

Bosazza’s evidence that he negotiated the sale of the property with defendant who was only prepared to sell it to him provided that it was utilised for the upliftment of the local black community is fully corroborated by the defendant. It is not disputed by plaintiff that defendant’s intention in selling the property to plaintiff was that she should thereafter transfer it to Bosazza who would utilise it in such a manner as to uplift the local community of Morgan Bay and that as far as he was concerned, plaintiff had agreed to this.

Plaintiff denies, however, that at the time of signing the deed of sale she was aware of defendant’s intention in this regard. She denies too that such was her own intention. In my view, however, the probabilities are overwhelmingly against her version.

Defendant’s evidence lends corroboration to Bosazza’s evidence that plaintiff’s role in the matter was limited in effect to that of a financier of the purchase price. Defendant confirmed that Bosazza told him this, saying that plaintiff had offered to lend him the money. It is telling, in my view, that less than ten days after plaintiff had signed the deed of sale, the defendant’s attorney, Mr. Kingon, wrote to the surveyors in respect of the subdivision of the property pointing out that plaintiff was merely the financier of the deal. This must obviously have been in accordance with instructions received by him from defendant on the basis of what Bosazza had told him. It is, in my view, quite improbable that Bosazza would at that stage, when he was still married to Maryna, have lied to defendant concerning plaintiff’s role in the matter. He had no reason whatsoever to have done so.

At the time the deed of sale was entered into, Bosazza and Maryna were still married and living together, whatever stresses and strains on their relationship there might have been. The plan to develop the property, agreed jointly between them, was in accordance with their overall vision thereof. In the circumstances it is not in the least improbable that plaintiff would have been prepared to advance the money for the property in order to secure their future together. It was only later that her dislike and hostility towards Bosazza came to the fore after the breakup of the marriage and the bitter custody dispute. In this regard plaintiff’s dislike of Bosazza was apparent in her evidence despite her protestations that she had attempted to see his good points.

Plaintiff denied having had any knowledge of the planned usage of the property. In my view, her contradictory evidence that she had never discussed this in any sort of detail with Maryna is improbable and unconvincing. She had a close relationship with Maryna; she was concerned about Maryna’s future; Maryna, as appears from the documents drawn up by her contained in Exhibit A, was passionate about ecological and environmental matters and the documents spell out the plans to involve and uplift the local community. It is improbable that she would not have informed plaintiff of these. It is clear, in my view, that plaintiff throughout her evidence was at pains to distance herself from any suggestion that she might have known of the plans for the future usage of the property.

After Bosazza and Maryna had separated it came to light, because of Bosazza’s queries, that the deed of sale had lapsed. It was Bosazza who immediately approached defendant with a view to obtaining the amendment of the offending subdivision clause, thereby reviving the deed of sale. It does not appear that plaintiff was even aware of this problem until such time as the amended deed of sale was sent to her for signature. As appears from the evidence, Bosazza could at that stage have entered into a new agreement of sale with defendant at the same price and could have obtained the necessary finance to do so, instead of reviving the sale of the property into his mother-in-law’s name with whom he was no longer on good terms. It is, in my view, quite improbable that Bosazza would have acted in such a manner unless he knew that he was intended to be the ultimate beneficiary.

There is also the meeting of either 2006 or 2007. In my view the dispute between the parties as to the date of that meeting is not important. What is important is that by that stage the battle lines between plaintiff and Bosazza had largely been drawn. The evidence of Bosazza and Mrs. Bosazza was that plaintiff had stated categorically that she had changed her mind and had decided to keep the property. Both Bosazza and his mother were, as I have said, excellent witnesses and I accept their evidence in this regard. That evidence is, in any event, consistent with the statement by plaintiff in her own minutes (Exhibit B) to the effect “that the property stays in my name.” It receives material corroboration also from defendant’s evidence, which I accept, that when plaintiff and her husband came to see him at the hotel in August 2007 she told him that she wanted to change the usage and take the property for herself.

In my view the most plausible, if not the only, inference to be drawn from plaintiff’s statement that she had changed her mind and had decided to keep the property is that she was fully aware of the underlying oral agreement governing the written agreement and that her original intention in signing the deed of sale had been to give effect thereto. In my view the probabilities are overwhelmingly to the effect that it was only when the marital relationship between Bosazza and Maryna broke down that she became concerned that Bosazza should not benefit at the expense of Maryna and the grandchildren.

It is common cause that Bosazza’s father has since died and that plaintiff’s husband is not in a condition to be able to testify. Mr. Cole submitted, however, that the failure by plaintiff to call her daughter Maryna, with whom she had a very close relationship, to testify as to plaintiff’s knowledge of the prior oral agreement as well as to the events at the meeting called by plaintiff justified the inference that her evidence would in some way be unfavourable to plaintiff. As was stated in the well-known case of Elgin Fireclays Limited v Webb 1947 (4) SA 744 (AD) at 749 – 750, “it is true that if a party fails to place the evidence of a witness, who is available and able to elucidate the facts, before the trial Court, this failure leads naturally to the inference that he fears that such evidence will expose facts unfavourable to him. (See Wigmore 285 and 286). But the inference is only a proper one if the evidence is available and if it would elucidate the facts.”

In the present case Maryna was, according to the plaintiff, not available to give evidence because there was no-one to look after her children if she had to attend Court. In my view, this reason for the failure to call her is spurious. It would have been a relatively simple matter for the necessary arrangements to have been made so as to enable Maryna to attend Court, even if such arrangements occasioned some inconvenience to Maryna and the children. I am satisfied therefore that she was available and that plaintiff deliberately chose not to call her.

In Sampson v Pim 1918 AD 657, a matter arising out of a collision, the plaintiff’s passenger had been subpoenaed and was available, but was not called as a witness. At 662 Solomon JA stated:

“The inference is irresistible that his evidence would not have supported the plaintiff’s case. It might of course have been negative, as he may not have been keeping a look-out and so may not have been able to assist the Court one way or the other. But if he could have given evidence favourable to the plaintiff it is inconceivable that he should not have been called.”

Maryna, as is clear from the evidence, had a very close relationship with her mother. She must have been able to cast light on the existence or otherwise of any prior oral agreement concerning the transfer and usage of the property and of plaintiff’s role in the matter. If plaintiff had agreed to act merely as the financier of the deal she must have been aware thereof. She was also present at the meeting called by plaintiff. It is, in my view, inconceivable that she should not have been called if she could have given evidence favourable to the plaintiff, more particularly in the light of the evidence adduced by Bosazza and Mrs. Bosazza concerning the statements made by her at the meeting.

In all the circumstances I accept the evidence tendered on behalf of the defendant and I reject that of plaintiff to the contrary.

I turn then to consider the legal principles applicable to the present matter.

It is trite that a claimant for rectification of a written agreement must prove a common intention which the parties intended to express in the written contract, but which through a mistake they failed to express. See: Weinerlein v Goch Buildings Ltd 1925 AD 282; Meyer v Merchants’ Trust Ltd 1942 AD 244 at 253; Standard Bank of SA Ltd v Cohen (2) 1993 (3) SA 854 (SECLD) at 861H – 862B; Humphrys v Laser Transport Holdings Ltd and Another 1994 (4) SA 388 (C) at 395.

In Humphrys case supra reference is made at 396D - E to the possibility of one of the contracting parties having intentionally remained silent on realising that the written agreement did not reflect the terms of an earlier oral agreement in order to secure a better bargain. That, it was held, would be “a case of ‘snatching a bargain’ which also, in principle, entitles the ‘innocent’ party to ask for rectification. (See, for example Otto en ‘n Ander v Heymans 1972 (4) SA 148 (T) at 156 E – H; Benjamin v Gurewitz 1973 (1) SA 418 (A) at 426 A.)”

In Otto en ‘n Ander v Heyman’s supra Marais J stated as follows at 156 E – G:

“Wat (ii) betref – of ‘mutual error’ altyd aanwesig moet wees – skyn dit meer ‘n geval van logiese afleiding as van feitelike bewys te wees. As daar eenmaal bewys is dat albei partye in volgehoue bedoelinge of verstandhouding gehad het (vgl Meyer v Merchants’ Trust Ltd 1942 AD 244) om ‘n ander ooreenkoms te sluit as wat in die geskrewe stuk deur hulle beliggaam is, moet ‘n afleiding van foutiewe teboekstelling prima facie gemaak word. Hoe die fout ontstaan het – deur ‘n “error calculi”, ‘n vergissing teen opsigte van name, verkeerde identifikasie, bedrog of wat ook – verg ‘n afsonderlike ondersoek, nes die vraag of die Hof een of ander party regshulp sal moet verleen. ‘Mutual error’, soos dit in die betrokke gewysdes voorkom, skyn my niks meer te wees as ‘n samevatting van die onderliggende begrip van volgehoue opset wat nie in die geskrewe kontrak volledige of juiste uiting gevind het nie.”

At 156H the learned Judge continued:

“Bedrog, of ander laakbare of oneerbare optrede wat die Hof tot regshulp aan die beswaarde party noop, het niks te maak met die vraag of die fout op ‘n mistasting van die reg dan wel op die feitelike posisie slaan nie. Die vraag is enkel of die teenparty toegelaat moet word om voordeel te trek uit die fout.”

In Tesven CC and Another v South African Bank of Athens 2000 (1) SA 268 (SCA) the learned Judge in the Court a quo had held that the facts alleged by the defendants in a summary judgment application did not entitle them to rectification of certain written documents, stating, inter alia, that the remedy of rectification “has no application where the document correctly reflects the words which the parties intended to record, but the words so used do not correctly reflect the parties’ prior agreement or common intention.” The learned Judge continued that the alleged mistake of the deponent to the defendants’ affidavits was “merely in believing that the prior oral agreements would prevail over the writing which was in conflict therewith.”

On appeal, this decision was set aside. In doing so, Farlam AJA (as he then was) stated as follows at 274H – 275E:

“[15] The learned Judge’s view that for a claim for rectification to be competent the mistake relied on must relate to the writing in the document and that a Court cannot have regard to any other kind of mistake is not supported by authority nor is there any reason based on principle that can be relied on in support of it: See, for example, Offit Enterprises (Pty) Ltd and Others v Knysna Development Co (Pty) Ltd and Others 1987 (4) SA 24 (C) at 27D – E.

[16] To allow the words the parties actually used in the documents to override their prior agreement or the common intention that they intended to record is to enforce what was not agreed and so overthrow the basis on which contracts rest in our law; the application of no contractual theory leads to such a result.

[17] I am also of the view that Mouton v Hanekom (1959 (3) SA 35(A)) is not distinguishable in this matter and that the ratio thereof is directly contrary to the conclusion to which Nugent J came.

In Mouton v Hanekom (supra) the parties entered into a written contract of sale and an oral pactum de retrovendendo which they agreed would not be incorporated into their written contract. Despite the fact that the terms of the oral agreement were intentionally omitted from the written contract, rectification was allowed. This Court assumed that parol evidence of the oral pactum would contradict the written contract but held that it was admissible to rectify the latter because of the parties’ mistake, not as to what was recorded, but as to its effect, which was to prevent their oral agreement from operating with their written contract; See at 39H – 40A and the comment by Trollip J in Von Ziegler’s case at 411A – E.

[18] In the present matter also the signatories were not mistaken as to what was contained in the document signed by second defendant. The mistake which she says she and the plaintiff made was in thinking that, despite the contents of those documents, the preceding oral agreements would still be operative. This mistake was clearly capable of rectification on the strength of the principle affirmed in Mouton v Hanekom.”

I would refer also to Brits v Van Heerden 2001 (3) SA 257 (C) where, at 283 B Knoll J stated that:

“[A]lthough this Court may have no broad general equitable jurisdiction and cases must be decided on general principles of law, the equity is to be found in the remedy of rectification which has been expanded over the years to give full meaning to the basic principle on which it operates and that is that rectification may be granted where the written memorial of an agreement does not reflect the true consensus of the parties.”

At 282C – E the learned Judge stated further that it was apparent from the authorities that it was necessary that there be a mistake of some sort. She continued:

“However, the mistake does not have to relate to the writing itself, but might relate to the consequences thereof. The mistake may be one common to both parties; the mistake may be that of only one party; the mistake may be induced by misrepresentation or fraud. But there must be a mistake. In my view, the crux of the matter is that the mistake, be it a misunderstanding of fact or law or be it an incorrect drafting of the document, must have the effect of the written memorial not correctly reflecting the parties’ true agreement.”

See too Joubert: General Principles of the Law of Contract at 165 referred to by Knoll J at 268A – D.

In Shoprite Checkers (Pty) Ltd v Bumpers Schwarmas CC and Others 2002 (6) SA 202 (C) Davis J, with reference to the Brits case supra, stated that he was “somewhat uncertain” as to the need for recourse to considerations of equity in an action for rectification. He stated further as follows as 215G – 216P:

“The crisp question turns on the nature of that which was agreed between the parties. An examination of the content of the consensus prompts a consideration of the concept of bona fides which underpins contractual relationships. The concept of bona fides has proved to be somewhat elusive with regard to its definition and scope. … Whatever the uncertainty, the principle of good faith must require that the parties act honestly in their commercial dealings. Where one party promotes its own interest at the expense of another in so an unreasonable a manner as to destroy the very basis of consensus between the two parties, the principle of good faith can be employed to trump the public interest inherent in the principle of the enforcement of a contract.

This concept of good faith is congruent with the underlying vision of our Constitution to the extent that our Constitution seeks to transform our society from its past. … To rely on the strict written words of a contract and to ignore an underlying oral agreement which not only shaped the written agreement but which forms part of the essential consensus would be to enforce the very antithesis of integrity and good faith in contractual arrangements.”

This decision was set aside on appeal (Shoprite Checkers (Pty) Ltd v Bumpers Schwarmas CC and Others 2003 (5) SA 354 (SCA) but on the facts.

What was said in Weinerlein v Goch Buildings Ltd 1925 AD 282 is also in my view apposite. At page 291-2 Wessels JA stated:

“From the earliest times the Roman law has set its face against a person benefitting himself by his own fraud or by a mutual mistake even if the strict interpretation of the law seems at first blush to give him that right. It is true that the maxim ‘qui suo jure utitur nominem laedat’ applies to our law, but a claimant cannot avail himself of a right which he obtained fraudulently or under a mutual error.”

At 292 – 293 the learned Judge continued:

“It is therefore clear that under the civil law the Courts refused to allow a person to make an unconscionable claim even though his claim might be supported by a strict reading of the law. This inherent equitable jurisdiction of the Roman Courts (and of our Courts) to refuse to allow a particular plaintiff to enforce an unconscionable claim against a particular defendant where under the special circumstances it would be inequitable, dates back to remote antiquity and is embodied in the maxim ‘summum jus ab aequite dissidens jus non est.’”

(“Law in its extreme form is no law when it is in conflict with fairness.” See: Hiemstra and Gonin: Tri-lingual Legal Dictionary, second edition.)

In the same matter Kotzè JA stated as follows at 297:

“We have thus the principle recognised that a contract, like an account, can be revised or rectified on the ground of a mistake. This is based on equitable considerations, which have been adopted and become part of the civil law. And similarly we see the influence of equity in the adoption of the well-settled rule, both in the jurisprudence of Rome and of the Netherlands, that no one is allowed to draw a profit or enrich himself at the expense of another. … I have already observed that the rectification of a written document, on good cause shown, is a well-settled rule with us in South Africa; and it is derived, where most equitable rules have originated, from the Corpus Juris. To allow the plaintiffs, who are the present appellants, to succeed in this matter, will be to permit them to continue to enjoy a benefit to which they in law are not entitled, to the prejudice of the defendants. It would operate in fraud of the latter’s rights.”

With these principles in mind I turn to consider the question whether, on an acceptance of defendant’s evidence, he has discharged the onus of proving his claim for rectification on a balance of probabilities.

Mr. Schoeman submitted strenuously that that evidence failed to prove the existence of any intention other than the intention of defendant to pass unconditional ownership of the property to plaintiff. He submitted that no verbal agreement had been concluded by defendant with plaintiff and that, in any event, even were the matter to fall within the ambit of the principles governing rectification the evidence led on behalf of defendant as to the alleged conditions of sale was so vague as to render it impossible to formulate such conditions with any degree of certainty. See, for example, Levin v Zoutendijk 1979 (3) SA 1145 (W) at 1147H – 1148A.

In my view, however, the acceptable evidence of Bosazza and defendant discloses that it was never the intention of plaintiff and defendant that ownership of the property would be passed by defendant to plaintiff unconditionally, despite plaintiff and defendant never having met or spoken to each other prior to signing the deed of sale. It is clear, in my view, that defendant’s intentions with regard to the sale of the property were conveyed to Bosazza. Bosazza in turn conveyed these intentions to plaintiff who was prepared to enter into the agreement on that basis as the financier of the purchase and nothing more.

Mr. Schoeman criticised defendant’s evidence concerning the omission of the oral agreement from the written agreement, pointing out under cross-examination that defendant had been for some, albeit limited time, an estate agent whom one would expect to know the law concerning the validity of written agreements of sale where land is concerned. A similar argument was dismissed by Knoll J in Brits v Van Heerden supra at 283F-G, the learned Judge pointing out that it was not necessary that the mistake made be a reasonable one and that the probabilities supported the plaintiff’s assertion that it now occurred to her that she would not be able to enforce the agreement. So too in the present matter.

Mr. Schoeman submitted that the evidence of defendant as to whom the plaintiff was obliged to re-transfer the property was vague and self contradictory as well as being contradictory of the evidence of Bosazza. It is so that defendant’s own evidence in this regard was somewhat vague and uncertain. It is clear that he did not pay particular attention to this issue and that his recollection of events was not entirely clear. As appears from the summary of his evidence set out above he initially stated that because Bosazza had been the driving force behind the purchase of the property he presumed it would be transferred to him. He then stated, however, that it was to be transferred to the Bosazzas. He stated further that Bosazza and Maryna would have the beneficial use of the property. Asked specifically if he had intended the property to be transferred to some sort of entity where Bosazza was involved he replied “his family yes.” In my view his evidence establishes that he intended Bosazza and Maryna to benefit and his evidence is accordingly not in conflict with that of Bosazza, whose own evidence on this issue was clear and to the effect that it was intended by defendant that the property would be transferred to himself and Maryna and that plaintiff agreed thereto.

The evidence also discloses that it was the intention of the parties that, upon the aforesaid transfer, the property would be developed in such a manner as to benefit the local community at Morgan Bay.

It is clear from defendant’s evidence, however, that there had been no more than loose talk about a possible joint venture and that it was never his intention that any condition relating to such joint venture be incorporated in the deed of sale. Similarly, defendant knew nothing whatsoever concerning the agreement between Bosazza and plaintiff as to her eventual recompense in return for having loaned the money for the purchase of the property. This was, and remains, a matter between Bosazza and plaintiff themselves.

In all the circumstances I am satisfied that defendant has proved on a balance of probabilities that there was a common continuing intention between himself and plaintiff that, after transfer of the property to plaintiff, she would take all necessary steps to transfer it to Bosazza and Maryna in equal shares. They in turn would utilise the property with the aim of uplifting the local community of Morgan Bay. Although the parties deliberately omitted this from the written contract it is clear from the evidence that they did not intend thereby to amend or vary their true agreement.

In this regard what was said in Mouton v Hanekom, supra, at 39H – 40D is relevant, namely:

“Die feit dat die partye uitdruklik ooreengekom het dat die ooreenkoms van terugkoop nie in die koopbrief vermeld sal word nie kan rektifikasie nie verydel nie.

Die gemeenskaplike bedoeling van beide partye was dat eiser die reg van terugkoop sal hê en as daar dan bepalings of woorde in die koopbrief is wat hierdie bedoeling onuitvoerbaar maak of in stryd daarmee is, dan is dit duidelik dat sodanige bepalings of woorde deur die partye per abuis ingeskryf is en is eiser geregtig op rektifikasie van die koopbrief ten einde dit in ooreenstemming te bring met die gemeenskaplike bedoeling van beide van die partye.

As ek Mnr. Banks reg verstaan het, dan het hy betoog dat ‘n party tot ‘n geskrewe ooreenkoms nie onder die dekmantel van rektifikasie die reëls van bewysleer kan omseil nie; dit is so, maar ewe min kan agter dieselfde reëls skuiling gesoek word vir die beoefening van bedrog of die ontduiking van ‘n kontraktuele verpligting.”

The written agreement, which purports to confer unconditional rights of ownership of the property on plaintiff is, however, in conflict with the common intention of the parties as expressed in their prior oral agreement and renders that common intention inoperative. The common mistake made by the parties at the time of conclusion of the agreement of sale was in thinking that, despite the provisions of the written deed of sale, the prior oral agreement omitted therefrom would still be operative and be enforceable. (Compare Tesven’s case, supra, para 18).

Plaintiff, in now seeking to enforce the contract, is attempting to achieve a result which she knows was never intended by herself and defendant and which she knows is contrary to their common intention at the time of entering into the agreement. Her conduct in so doing is, in my view, unconscionable.

In all the circumstances I am of the view that defendant is entitled to rectification of the written agreement to the limited extent which I have set out above in order to bring it into harmony with the true intention of both parties.

The English headnote of Akasia Road Surfacing (Pty) Ltd v Shoredits Holdings Ltd 2002 (3) SA 346 (SCA) reads as follows:

“Rectification of a contract has as its purpose the bringing of the written document into harmony with the true intention of the contracting parties, which intention they failed, by reason of a common mistake, to put into writing. If that true intention is vague, it might affect the validity of the rectified contract but not a defendant’s claim for the rectification of the contract. The law is not, after all, that effect should be given to a written document which incorrectly reflects the agreement between the parties on the ground that the incorrect written version does indeed constitute a valid contract while that upon which the parties actually agreed does not constitute a valid contract.”

Insofar as it may be said that the true intention of the parties, as expressed in their oral agreement, is vague, this does not, in the circumstances, affect the defendant’s claim for the rectification of the contract.

It will of course be for Bosazza and Maryna to decide whether to accept the stipulations in their favour.

Accordingly the following order will issue:

1. The plaintiff’s claim is dismissed with costs.

2. The defendant’s counter-claim for rectification succeeds and the deed of sale is rectified by the addition of the following paragraph 22 thereto, in the following terms:

“22. SPECIAL CONDITIONS

22.1 It is specifically recorded that it is the intention of the purchaser and seller that the purchaser will take all necessary steps to transfer the subject property to Jonathan Bosazza and to Maryna Bosazza (born Booysen) in equal shares as soon as practicable after the property has been registered in the name of the purchaser.

22.2 The parties hereto further record that the said property is sold subject to the following specific conditions:

22.2.1 that the purchaser pass transfer to Jonathan Bosazza and Maryna Bosazza in equal shares as aforesaid, and

22.2.2 that Jonathan Bosazza and Maryna Bosazza develop the property to the benefit of the local community at Morgan Bay.

3. Plaintiff is ordered to pay defendant’s cost of suit together with interest thereon calculated at the legal rate from a date 14 days after taxation to date of payment.

________________

J.D. PICKERING

JUDGE OF THE HIGH COURT

Appearing for Plaintiff: Adv. N. Schoeman

Instructed by McCallum Attorneys, Mr. McCallum

Appearing for Defendant: Adv. S. Cole

Instructed by Borman & Botha, Mr. Powers

Date of hearing: 20, 21 and 22 October 2010

Judgment reserved: 22 October 2010

Judgment delivered: 4 November 2010

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