SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	

IN THE HIGH COURT OF SOUTH AFRICA

CASE NO: 5181/2010
DATE:11/02/2011

In the matter between:

and

JUDGMENT

MNGQIBISA-THUSI J

[1] The plaintiff issued summons in terms of which it is seeking rectification of clause 3 of a written agreement he alleges he concluded with the defendant on 25 March 2009.

[2] In its particulars of claim the plaintiff alleges that clause 3 of the alleged agreement does not reflect the common intention of the parties at the time the agreement was concluded.

[3]     Clause 3 which the plaintiff seeks to be rectified reads as follows:
"... D will have the rights to occupy this property or to operate the lodge on this property, subject to the following conditions. As D is desirous to revert to her maiden name, an attorney will be instructed to re-register the deed of ownership in the names of the two parties on conclusion of the divorce. From the date of divorce, D:
a       Will be fully responsible for all expenses relating to the farm and the lodge such as electricity, rates and taxes, levies and the like; b  Will be entitled to all profits and responsible for all losses stemming from operating a lodge on this property."

[5] In his particulars of claim the plaintiff further alleges that at the time the agreement was reduced to writing, the plaintiff and the respondent's common intention was that:

[6]     The plaintiff is seeking that the above -mentioned portions of clause 3
of the agreement be deleted and replaced by the following:
"A and D will both be entitled to occupation of the property and D will be entitled to operate a lodge thereon, subject to the following conditions. As D is desirous to revert to her maiden name, an attorney will be instructed to re-register the deed of ownership in the names of the two parties on conclusion of the divorce. From the date of the divorce:
a A will be responsible for the payment of all levies in respect of the property;
b D will be responsible for all remaining expenses relating to the property and the lodge such as electricity, rates and taxes and the like;
c D will be entitled to all profits and responsible for all losses stemming from operating a lodge on the property."

[7]     The defendant has taken an exception to the plaintiff's particulars of claim on the ground that it lacks averments necessary to sustain a cause of action. The defendant's exception reads, in part, as follows:

[8] Attached to the defendant's Notice of exception is a copy of an agreement whose content is identical to the agreement attached to the plaintiff's particulars of claim except for the fact that the agreement attached to the defendant's notice also bears the following:

[9] The defendant has taken an exception to the plaintiff's particulars of claim on two grounds:

[10] Although in his submissions, counsel for the plaintiff did not address me on the discrepancies revealed above between the agreement it sought to be rectified and the agreement made an order of court, nothing turns on the defendant's first ground as indicated in paragraph 8 above, the agreement attached to the plaintiff's particulars of claim is identical in content to the settlement agreement incorporated to the court order and attached to the defendant's Notice of Exception except for the fact that the agreement filed by the plaintiff lacks the formal aspects of a settlement agreement made an order of court.

[13] The thrust of the defendant's argument in noting an exception to the plaintiff's particulars of claim is that:

[14]    It is submitted on behalf of the defendant that since the plaintiff seems to rely in his claim on clause 3 of a settlement agreement which was made an order of court, it was material for the plaintiff to have averred in his pleadings to this fact since a judgment which is final cannot be rectified.

There are, however, a few exceptions to that rule which are mentioned in the old authorities and have been authoritatively accepted by this Court. Thus, provided the court is approached within a reasonable time of its pronouncing the judgment or order, it may correct, alter, or supplement it in one or more of the following cases:

[16] It was submitted on behalf of the plaintiff that the notice of exception does not attack the particulars of claim as it stands and that the defendant cannot rely on facts extraneous to the particulars of claim. Further that the court must look at the pleading as it stands and cannot have reference to any other document.

placed on what Flemming J stated at 810 that:
"Counsel for both parties apparently at the time believed that the undertaking (when made part of the order) would or might well open the way for contempt of court proceedings. The Court must interpret the order as it is found unless it is amended pursuant to rectification properly asked and obtained. Neither party attempted to obtain an amendment and an amendment would in any event not alter the absence of a legal basis for committal on the ground of behaviour in the period before the order is in fact amended."

thereof which read as follows:

[14] Rectification should be sought by way of action unless there is no dispute of fact and that which is sought to be rectified is common cause between the parties. In casu the rectification sought is nowhere near common cause and is vehemently disputed therefore the respondent knew or ought to have known that motion proceedings would be fatally flawed. As early as June 2003 the Respondent became aware that a serious dispute of fact was bound to develop...."

[21] In its particulars of claim the plaintiff gives no indication that the agreement it seeks rectified was made an order of court when the parties were divorced on 5 June 2009, nor was this disputed during argument. This was a material averment which should have been made. Furthermore, except for saying that as a result of a common error between the parties, which allegation is disputed by the defendant, the plaintiff gives no indication as to how the error occurred when the agreement was reduced to writing.

rectified. What the court dealt with in that matter was a case relating to the construction of its own judgment or order. In this case, the plaintiff in its particulars of claim clearly sets out the ground on which it seeks rectification of the order granted by Mayat J, namely, a common mistake. Whether this is true will be decided at the trial.

[24] However, I am of the view that the exception should be upheld in that the plaintiff in its particulars of claim did not allege the fact that the agreement it is seeking to be rectified was made an order of court and thereby lacks material averments necessary. The particulars of claim need to be amended accordingly.

[25]   Accordingly the following order is made:

MNGIBISA-THUSI
Judge of the North Gauteng High Court