THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

CASE NO 103/06
Not reportable

In the matter between:
PROPFOKUS 49 (PTY) LIMITED                                  First Appellant
THOMAS NICHOLAS JOHN STEYNBERG             Second
Appellant
DAVID JOHANNES STEYNBERG                               Third Appellant
and
WENHANDEL
(PTY)
LIMITED
Respondent

Coram:           Nugent, Van Heerden et Combrinck JJA
Heard:             27 February 2007
Delivered:        20 March 2007
Summary:      Written agreement – rectification – requirements for
Neutral citation: This judgment may be referred to as Propfokus (Pty) Ltd v
Wenhandel (Pty) Ltd [2007] SCA 15 (RSA)

VAN HEERDEN JA:

[1]                  This is an appeal against a judgment of the Cape High Court
granting, on application, an order for rectification of a written agreement
for the sale of land.  The agreement was entered into between the first
appellant (Propfokus 49 (Pty) (Ltd)) and the respondent (Wenhandel 4
(Pty) (Ltd)) on 5 July 2004.  The second and third appellants are the only
two shareholders in Propfokus.  For the sake of convenience the
appellants will hereafter be referred to collectively as ‘Propfokus’ and the
respondent as ‘Wenhandel’.
[2]                  In terms of the agreement, Propfokus sold certain immovable
property known as Erf 1410 Kuils River, Western Cape (the property) to
Wenhandel, a property development company.  The purchase price was
formulated as follows in clause 2 of the original agreement:
‘Die Koopprys is die bedrag van R1 000 000-00 (EEN MILJOEN Rand) betaalbaar
op datum van Registrasie van Oordrag in die koper se naam plus 2 standaard eie titel
wooneenhede alternatiewelik 3 deeltiteleenhede met ’n gesamentlike waarde van
R800 000 (Agthonderd Duisend Rand) op die verkoper of sy genomineerde se naam
oorgedra te word so spoedig as moontlik. Die verkoper moet die eenhede op plan
nomineer binne 7 dae nadat die koper of sy agent daartoe versoek.’

[3]                  At a later stage, the parties agreed to amend clause 2 of the
written agreement to provide for the delivery of two standard separate
title units to the exclusion of any sectional title units.  The words ‘alter-
natiewelik 3 deeltiteleenhede’ were deleted and the words ‘[s]ien
aanhangsel A en B hierby aangeheg vir besonderhede oor die 2 eenhede’
were inserted at the end of clause 2.  There is an irreconcilable dispute on
the papers concerning the date upon which and the reasons why this
amendment was effected.
[4]                  In a subsequent development Wenhandel brought an urgent
application consisting of two parts before the court a quo.  The first part
sought a rule nisi prohibiting Propfokus from selling, burdening or
alienating, or attempting to sell, burden or alienate the property, or to
alter or attempt to alter the status of the property in any way pending the
final determination of the second part of the application, to which I will
refer as ‘the main application’.  In the main application, Wenhandel
sought, inter alia, an order rectifying clause 2 of the agreement by
amending the first sentence of the clause to read as follows:
‘Die Koopprys is die bedrag van R1 800 000.00 betaalbaar op die datum van
registrasie van oordrag in die koper se naam, alternatiewelik die bedrag van R1 000
000-00 (EEN MILJOEN Rand) betaalbaar op datum van registrasie van oordrag in die
koper se naam plus 2 wooneenhede in die beoogde ontwikkeling met ’n gesamentlike

waarde van R800 000-00 (Agthonderd Duisend Rand) op die verkoper of sy
genomineerde se naam oorgedra te word so spoedig as moontlik.’
It is worth noting that clause 2, as sought to be rectified, makes no
mention of the type of dwelling unit to be transferred.
[5]                  The rule nisi was granted on 27 May 2005 by agreement between
the parties.  On 8 December 2005, Allie J granted an order for
rectification of the agreement in the terms set out above, together with a
further order declaring the agreement as rectified to be valid and
enforceable.  Propfokus was also ordered to do everything necessary to
transfer the property to Wenhandel within seven days of the date of the
order ‘teen betaling van die volle koopprys’, failing which the Registrar
of the High Court was ordered to take the necessary steps to effect the
transfer on behalf of Propfokus.  With the leave of the High Court,
Propfokus now appeals against this order.
[6]                  Wenhandel purchased the property for the purpose of erecting
dwelling units thereon.  Prior to the amendment of the agreement and for
some time thereafter, the parties laboured under the impression that the
relevant local authority would permit separate title units to be built upon
the property.  That impression was gained from information which
Wenhandel had received from the local authority.  Pursuant to the

agreement as amended, Propfokus chose two separate title dwelling units
off plan and, in October 2004, concluded purchase and building
agreements with Wenhandel in respect of each of these units.
[7]                  The local authority thereafter decided to zone the property
exclusively for sectional title development.  Propfokus apparently became
aware of this decision only on 20 April 2005, when Wenhandel’s attorney
wrote to Propfokus’ attorney in respect of the delays relating to
registration of transfer of the property and stated that:
‘Ons wil vir die rekord daarop wys dat dit nie langer eie titel eenhede is nie, maar
deeltitel eenhede ooreenkomstig die magtiging deur die plaaslike owerheid’
[8]                  In subsequent correspondence between the respective attorneys,
Propfokus referred to the amendment to the agreement and insisted that it
had never intended to accept two sectional title units as part payment for
the property, but only two separate title units.  In these circumstances, so
Propfokus contended, the nature of the property rights attached to the
dwelling units had changed materially from that stipulated in the
amended agreement.  Propfokus accordingly purported to cancel the
agreement.  Wenhandel subsequently tendered to pay R1 800 000.00
against registration of transfer of the property, but this was refused by
Propfokus.  Wenhandel regarded the cancellation as unlawful, while

Propfokus adopted the stance that, even if it were to be found that the
agreement was not validly cancelled, it was on Wenhandel’s own version
not possible for it to perform in terms thereof.
[9]                  After settlement negotiations between the parties had failed,
Wenhandel launched the application culminating in the order which is the
subject of this appeal.
[10]              At the hearing before us, counsel for Wenhandel argued that,
even in the absence of rectification, a proper interpretation of the
agreement between the parties entitled Wenhandel to an order that
Propfokus transfer the property to the former against payment of ‘the full
purchase price’ of R1 800 000.  Relying on a number of cases dealing
with the legal nature of so-called ‘trade-in agreements’ in the context of
the sale of motor vehicles,[1] counsel submitted that that the agreement,
properly construed, provided for a purchase price of R1 800 000, part of
which was to be paid, at the option of the purchaser, in the form of two
units.  Thus, so it was contended, Wenhandel as purchaser was entitled to
tender R1 800 000 in payment of the purchase price if (for example)
transfer of the two units became impossible.  According to counsel,

[1] Viz where the parties to a contract of sale of a motor vehicle agree that the purchase price is to be
paid partly in cash and partly by the trade-in by the purchaser of another motor vehicle: see Antonie v
The Price Controller & Another 1946 TPD 190; Massyn’s Motors v Van Rooyen 1965 (3) SA 717 (O);
Wastie v Security Motors (Pty) Ltd 1972 (2) SA 129 (C); Mountbatten Investments (Pty) Ltd v
Mahomed 1989 (1) SA 172 (D). See also G J Dawson (Clapham) Ltd v H & G Dutfield [1936] 2 All
ER 232 (KB).

clause 2 had to be interpreted to mean that Wenhandel always had the
option of paying the ‘full purchase price’ of R1 800 000 in cash against
registration of transfer of the property.
[11]              I do not think that this is the correct construction of the
agreement.  The cases relied upon by counsel deal with a materially
different factual matrix and are not in point.[2]  Moreover, the construction
sought to be placed on clause 2 of the agreement as amended goes
contrary to the well-established rules for the interpretation of contracts.
As was stated by Joubert JA in Coopers & Lybrand & others v Bryant[3]
with regard to the ‘golden rule’ of interpretation, the language in the
document is to be given its grammatical and ordinary meaning, unless
this would result in some absurdity, or some repugnancy or inconsistency
with the rest of the instrument.
[12]              In this case, giving the wording of clause 2 (as amended), its
grammatical and ordinary meaning does not result in any ambiguity,
absurdity or inconsistency with the rest of the agreement.  The wording of
clause 2 is clear: the purchase price of the property is R1 000 000 plus
two separate title dwelling units in the proposed development (as
nominated by the seller off plan and with a combined value of

[2] Quite apart from any other differences, a trade-in motor vehicle is generally an asset which will not
appreciate in value over time, while in this case, it is common cause that the units in the proposed
development could very well increase in value after the conclusion of the agreement.
[3] 1995 (3) SA 761 (A) at 767E–768A.

R800 000)[4].  The construction contended for by counsel would have
made no commercial sense for Propfokus.  Not only would Wenhandel
have had the benefit of not being obliged to pay the full price in cash ‘up
front’ upon registration of transfer but, should the value of the dwelling
units increase after the date of conclusion of the agreement, Propfokus
would be unable to insist on reaping the benefit of this increase in value.
To my mind, such an interpretation would in fact conflict with the ‘nature
and purpose’ of clause 2 as amended.
[13]              I turn now to the aspect of rectification.  In order to succeed with
its claim for rectification, Wenhandel had to allege and prove the
following:
(a)       that an agreement had been concluded between the parties and
reduced to writing;
(b)       that the written document does not reflect the true intention of the
parties – this requires that the common continuing intention of the
parties, as it existed at the time when the agreement was reduced
to writing, be established;

[4] It is common cause on the papers that the reference in clause 2 to ‘a combined value of R800 000’
meant a minimum combined value.

(c)       an intention by both parties to reduce the agreement to writing – in
the present case, the agreement was for the sale of land and,
therefore, had to be in writing in order to be valid and binding;
(d)       a mistake in drafting the document, which mistake could have
been the result of an intentional act of the other party or a bona
fide common error; and
(e)       the actual wording of the true agreement.[5]
[14]              It is to requirement (b) that I immediately turn for it seems to me
that it is at that level that the case for rectification fails.
[15]              Propfokus’ case throughout the proceedings was that the true
agreement between the parties is correctly reflected in the written agree-
ment, as amended. Wenhandel never disputed this stance during the
course of the correspondence exchanged between the parties’ respective
attorneys.  So, for example, when Propfokus’ attorney, in a letter dated 8
April 2005, purported to put Wenhandel to terms as a result of ‘die
onnodige vertraging in hierdie oordrag’ and (incorrectly) claimed
payment of R1 800 000 within 14 days ‘in terme van klousule 12 van die
koopkontrak’, the response of Wenhandel’s attorney was to suggest that
the sum of R1 000 000 immediately be placed in trust for Propfokus’

[5] LTC Harms Amler’s Precedents of Pleadings 6ed (2003) p 298-299 and the cases there cited.

benefit pending registration of transfer of the property, and further to
refer to ‘die eenhede wat u kliënt toekom’.  Moreover, after Propfokus’
attorney had purported to cancel the agreement on its behalf,
Wenhandel’s attorney threatened Propfokus, on 5 May 2005, with ‘’n
aansoek vir ‘n verklarende bevel dat gemelde koopkontrak geldig en
afdwingbaar is en vir ‘n bevel wat oordrag gelas’.  There is nothing in the
correspondence preceding the launch of the proceedings by Wenhandel to
indicate that it was of the view that the written agreement as amended did
not reflect the common intention of the parties and, accordingly, fell to be
rectified.
[16]              As was contended by counsel for Propfokus, notwithstanding the
fact that Propfokus’ attitude towards clause 2 of the written agreement as
amended was conveyed several times to Wenhandel, the latter did not
challenge this attitude at any time prior to the launch of the application.
On the contrary, the issue of rectification was raised by Wenhandel for
the very first time in the notice of motion.  That being so, Wenhandel
could hardly have established that its intention, independently of
Propfokus, was different to that reflected in the written agreement as
amended.  Much less could Wenhandel have established that both parties
had an intention which differed to that appearing from the (amended)
written agreement.

[17]              Moreover, clause 2 of the agreement, as rectified by the High
Court, gives Wenhandel the choice of either paying R1 800 000 against
transfer, alternatively R1 000 000 plus two units in the envisaged
development.  As indicated above, the units would of course be sectional
title units.  The papers do not, however, establish that, at any stage after
the amendment of clause 2 by the deletion of the reference to three
sectional title units, Propfokus was prepared to accept two sectional title
units.  On the contrary, in its answering affidavit, Propfokus dealt in
detail with its reasons for not being prepared to accept sectional title units
and claimed that, since August 2004, it was not interested in sectional
title units at all and that the agreement was accordingly expressly
amended, as set out above.
[18]              Insofar as there may be any factual dispute in this regard, the
matter must be decided on the version advanced by Propfokus.[6]  As
pointed out by counsel for Propfokus, the deponent to the answering
affidavit filed on its behalf stated the following in opposition to
Wenhandel’s claim for rectification:
‘Dit word ontken dat daar enige grondslag bestaan waarop hierdie agbare Hof genader
kan word vir die rektifikasie van klousule 2 van die koopkontrak. Daar word nie
namens die Appellant verwys na enige feite wat daarop dui dat die koopkontrak,

[6] Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634C-635C.

aanhangsel CM1, soos uitdruklik gewysig deur die verdere kontrak, aanhangsel CM3,
nie die gemeenskaplike bedoeling van die partye weerspieël nie. Daar word ook nie
beweer of bewys dat die bewoording van aanhangsel CM3 verkeerd of foutief is as
gevolg van ‘n gemeenskaplike dwaling veroorsaak deur die Respondente nie.’
[19]              It cannot be said that Propfokus’ allegations or denials of the
facts relevant to the aspect of rectification are so far-fetched or clearly
untenable that the court would be justified in rejecting them merely on the
papers.[7]  Applying the Plascon-Evans rule, it is thus clear that the papers
before the court do not establish the essentials of rectification and that
Wenhandel’s claim should not have succeeded.
[20]              It follows that the appeal must be upheld.  As far as costs are
concerned, although Propfokus was represented before us – and, it would
appear, in the High Court – by two counsel, I do not consider that the
nature and complexity of the matter warranted the employment of more
than one counsel.
Order
[21]              In the circumstances, the following order is made:
1.        The appeal is upheld with costs.

[7] See Plascon-Evans Paints above at 635C.

2.        The order made by the Cape High Court on 8 December
2005 is set aside and substituted with the following:
‘The application is dismissed with costs.’

B J VAN HEERDEN
JUDGE OF APPEAL
CONCUR:
NUGENT JA
COMBRINCK JA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

PRESS RELEASE

20 March 2007

STATUS: Immediate

Propfokus 49 (Pty) Ltd and Others v Wenhandel 4 (Pty) Ltd
Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

The Supreme Court of Appeal today upheld an appeal against a judgment of the Cape
High Court granting, on application, an order for rectification of a written agreement for the
sale of land.

An agreement was entered into between the first appellant and the respondent. The
essence of the dispute related to the interpretation of the purchase price clause contained
in the agreement and whether the method of payment reflected the true intention of the
parties.

The Supreme Court of Appeal held that the clause containing the method of payment, if
given its grammatical and ordinary meaning, did not result in any ambiguity, absurdity or
inconsistency. The wording of the clause clearly reflected the intention of the parties as it
was when the agreement was concluded and subsequently amended. The court went on
to say that, as the respondent could not establish that the parties’ common intention was
different to that reflected in the written agreement as amended, it had failed to establish
the essential requirements for rectification.