of the Scheme. The court rejected the evidence of Spendley where it differed from that of the plaintiff. [20] The high court accepted, however, that Spendley had forgotten that he had signed the approval for the sub-division of unit 2. That is why he was shocked by the correspondence found by Watson which revealed that he had done so. Accordingly the court accepted that the fact of the sub-division was unknown to him at the time of concluding the agreement of sale with the plaintiff. The court accepted that since it had occurred in 2007 and had related to a proposal by Southern Palace Investments, prior to its liquidation, he had considered that the intervening liquidation would have brought that to an end. Since Spendley had heard nothing further about the matter he had simply forgotten about it thereafter. [21] The high court accordingly found that the misrepresentation in regard to the defendant’s two units comprising the scheme, and the existence of an effective right of veto in respect of the proposed sub-division, had not been made intentionally. In the circumstances the court found that there was no scope for a finding that the plaintiff had established the requisites of fraudulent misrepresentation upon which its case, in the main, was based. [22] The high court found, however, in favour of the plaintiff on the alternative basis upon which it sought to avoid the agreement of sale: that Thompson, as a result of the misrepresentation, had made a fundamental mistake as to the nature of the property that he was buying. [23] For purposes of this appeal it is not necessary to enquire into whether the high court was correct in concluding that fraudulent misrepresentation on the part of Spendley had not been established. We are required to consider the effect of an innocent misrepresentation by Spendley on the agreement between the parties. Relying on Trollip v Jordaan, counsel for the defendant submitted that the agreement of sale between the parties was not void because the misrepresentation by Spendley had been made innocently. In the Jordaan case the majority held that a contract of sale was not void as a result of an innocent misrepresentation that did not give rise to an error in corpore, and therefore that a non-misrepresentation clause contained therein applied, and precluded reliance on the misrepresentation. In Jordaan the dispute turned on the effect of the misrepresentation: the majority said:
of the Scheme. The court rejected the evidence of Spendley where it differed from that of the plaintiff. [20] The high court accepted, however, that Spendley had forgotten that he had signed the approval for the sub-division of unit 2. That is why he was shocked by the correspondence found by Watson which revealed that he had done so. Accordingly the court accepted that the fact of the sub-division was unknown to him at the time of concluding the agreement of sale with the plaintiff. The court accepted that since it had occurred in 2007 and had related to a proposal by Southern Palace Investments, prior to its liquidation, he had considered that the intervening liquidation would have brought that to an end. Since Spendley had heard nothing further about the matter he had simply forgotten about it thereafter. [21] The high court accordingly found that the defendant’s misrepresentation in regard to the two units comprising the scheme, and the existence of an effective right of veto in respect of the proposed sub-division, had not been made intentionally. In the circumstances the court found that there was no scope for a finding that the plaintiff had established the requisites of fraudulent misrepresentation upon which its case, in the main, was based. [22] The high court found, however, in favour of the plaintiff on the alternative basis upon which it sought to avoid the agreement of sale: that Thompson, as a result of the misrepresentation, had made a fundamental mistake as to the nature of the property that he was buying. [23] For purposes of this appeal it is not necessary to enquire into whether the high court was correct in concluding that fraudulent misrepresentation on the part of Spendley had not been established. We are required to consider the effect of an innocent misrepresentation by Spendley on the agreement between the parties. Relying on Trollip v Jordaan, counsel for the defendant submitted that the agreement of sale between the parties was not void because the misrepresentation by Spendley had been made innocently. In the Jordaan case the majority held that a contract of sale was not void as a result of an innocent misrepresentation that did not give rise to an error in corpore, and therefore that a non-misrepresentation clause contained therein applied, and precluded reliance on the misrepresentation. In Jordaan the dispute turned on the effect of the misrepresentation: the majority said: