Court name
High Court
Case number
512 of 2011
Title

Roads Contractor Company Ltd v Lemur Investment No. 26 CC and Others (512 of 2011) [2012] NAHC 269 (19 October 2012);

Media neutral citation
[2012] NAHC 269
Coram
Smith J





IN THE HIGH COURT OF NAMIBIA







REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA MAIN
DIVISION, WINDHOEK








JUDGMENT



Case no: I
512/2011








In the matter between:








THE ROADS CONTRACTOR COMPANY LTD
.......................................PLAINTIFF



and



LEMUR INVESTMENTS NO 26 CC
...............................................1ST
DEFENDANT



THE REGISTRAR OF DEEDS
........................................................2nd
DEFENDANT



THE MINISTRY OF SAFETY AND SECURITY
.............................3RD
DEFENDANT



STEPHANUS KAIZUKO
..................................................................4th
DEFENDANT



BANK WINDHOEK LTD
.................................................................5th
DEFENDANT








Neutral citation: The Roads
Contractor Company Ltd v Lemur Investment No. 26 CC (I 512/2011)
[2012] NAHCMD 34 (19 October 2012)








Coram: Smuts, J



Heard: 19 July 2012



Delivered: 19 October 2012








Flynote: Application in terms
of Rule 23(2) to strike portions of pleadings – requirement of
that sub-rule discussed – requirements of “irrelevance”
and “prejudice” considered in this context –
applications under Rule 23(2) not intended to determine preliminary
points of law








ORDER








The application to strike paragraphs
20 to 23 of the further amended particulars of claim is refused with
costs. These costs include the cost of one instructing and one
instructed counsel and are to be paid by the first and fifth
defendants.













JUDGMENT








SMUTS, J









  1. This is an interlocutory application
    to strike four paragraphs from the first alternative claim contained
    in the plaintiff’s amended particulars of claim. This
    application is brought under Rule 23 and is made by the first and
    fifth defendants.










  1. The allegedly offending paragraphs
    are to be considered in the context of the claims pleaded by the
    plaintiff. They are then to be viewed in the context of the test for
    striking out pleadings postulated by Rule 23. The plaintiff’s
    case as pleaded is first referred to including the paragraphs sought
    to be struck. The test for applications of this nature contemplated
    by Rule 23 is then set out. Its application to the pleadings in
    question follows.









Background









  1. The plaintiff is a parastatal entity
    incorporated in terms of section 2 of the Roads Contractor Company
    Act, No 14 of 1999. It instituted its action against the defendants.
    It comprises a main claim and three alternatives. The action arises
    from the sale of immovable property to the first defendant. The
    immovable property in question is described as a portion of a farm
    and is approximately 50 hectares in its extent. The purchase price
    of the property was N$411,000.00.










  1. In the main claim the plaintiff
    alleges that the sale was based upon a common assumption on the part
    of the parties that the property was vacant and without
    improvements. It is further alleged that this common assumption
    turned out to be incorrect as the property in question was not
    vacant but in fact has improvements upon it, comprising a police
    station, public ablutions, a cell block, store rooms, outbuildings
    as well as three dwellings with outbuildings valued at some N$4.7
    million. The plaintiff contends that, as a consequence of the failed
    common assumption, the agreement was void, alternatively voidable.










  1. The first alternative claim is
    brought on the basis that there was not a mistake common to the
    parties or the failure of a common assumption. It is contended that
    the plaintiff concluded the agreement in the erroneous belief that
    the property was vacant. It is then averred that this error was
    reasonable in the circumstances and that the plaintiff would not
    have concluded the agreement of sale had it been aware that the
    property contained any improvements. It is further contended that
    the plaintiff never intended to sell the property containing
    improvements at the price for which it was sold or at all. In a
    subsequent amendment, the plaintiff added five further paragraphs to
    this alternative cause of action. These are contained in paragraphs
    19 to 23 of the further amended particulars of claim. As these
    paragraphs are in contention – with the exception of paragraph
    19, I quote them in full:









19.
The plaintiff was further unaware of and the first defendant failed
to disclose that it was aware of improvements on the property at the
time it made the offer for the purchase of the property to the
plaintiff, alternatively at the time the agreement of sale was
concluded, alternatively at the time of or before or subsequent to
the registration of transfer of the property into the first
defendant’s name.








20.
The first defendant while knowing at all material times that the
property did not consist of vacant land alone but that it also
consisted of improvements which caused the property to be valued at
considerably more than what the plaintiff agreed to sell it to the
first defendant for, had a duty to enquire from the plaintiff as to
whether or not the intention expressed by the plaintiff was indeed
its true intention.








21.
The first defendant instead opted to remain silent in the knowledge
that the intention expressed by the plaintiff was not its true
intention and in doing so “snapped up the property for a
bargain”.








22.
As result of the first defendant failing in his “duty to speak”
and rather snapping up the property for a bargain his actions in the
circumstances were not bona fide.








23.
In the premise there was no consensus and thus no binding agreement
between the parties.”









  1. The first and fifth defendants
    applied to strike out paragraphs 20 to 23. They do so on the basis
    that these paragraphs serve no legal purpose and are irrelevant.
    They further contend that they are prejudiced by their inclusion.
    They do not object to the inclusion of paragraph 19. I return to
    this aspect later. They contend that the cause of action raised by
    the first alternative claim is that of a unilateral iustus error
    and that paragraphs 20 to 23 inclusively do not add anything to this
    cause of action and are thus irrelevant and should be struck.










  1. The first and fifth defendants,
    represented by Mr R Heathcote SC, and with him Mr J Schickerling, in
    a well researched argument contended that the distinction sought to
    be drawn in paragraph 20 between a true intention and an apparent
    intention on the part of the plaintiff is irrelevant and that the
    law is only concerned with the intention of the parties as
    externally manifested by its conduct and in this particular case, as
    expressed in the words used in the contract. They further contended
    that, in absence of fraud, there was no duty to speak as pleaded in
    paragraph 22 and contested the statement that the absence of bona
    fides
    on the part of a person in the position of the first
    defendant would vitiate consensus. They contended that, in the
    absence of a duty to enquire, it would not amount to the absence of
    being bona fide not to enquire as this was not required by
    law and that the pleading in that regard was irrelevant.










  1. Ms Chase who represented the
    plaintiff pointed out that the paragraphs in question were not
    objected to when they were included by way of amendment. She
    submitted that an issue to be determined at the trial would be
    whether the plaintiff’s unilateral mistake was justifiable and
    that it would be relevant in that context whether the first
    defendant had a duty to speak or whether the failure to do so
    amounted to snapping up a bargain. Those averments, she submitted,
    would be relevant in those circumstances. Both sides referred to
    extensive authorities in support of their respective positions.









Rule 23




  1. In determining whether the paragraphs
    in question fall to be struck, this would first need to be
    considered in the context of the test for striking out pleadings
    postulated by Rule 23. The relevant portion of Rule 23(2) dealing
    with applications to strike out portions of pleadings, provides as
    follows:









Where
any pleading contains averments which are scandalous, vexatious, or
irrelevant, the opposite party may, within the period allowed for
filing any subsequent pleading, apply for the striking out of the
matter aforesaid, and may set such application down for hearing in
terms of paragraph (f) of sub-rule (5) of rule 6, but the court shall
not grant the same unless it is satisfied that the applicant will be
prejudiced in the conduct of his or her claim or defence if it be not
granted.”









  1. The term “irrelevant” in
    striking out applications was explained by this Court to mean
    “allegations which do not apply to the matter in hand and do
    not contribute one way or the other to a decision of such matter”.
    1










  1. The court in that matter dealt with
    an application to strike allegations in affidavits in application
    proceedings under Rule 6. This definition would apply with equal
    force to applications under Rule 23 against pleadings on grounds of
    the irrelevance – or otherwise – of the impugned
    paragraphs. But there is one important difference to be taken into
    account in its application to Rule 23. The rule in question is one
    relating to pleading as opposed to an affidavit. As has been made
    clear in earlier cases, in an application brought under Rule 23(2),
    it is not “intended that on an application to strike the court
    should determine preliminary points of law. Thus matter will not be
    struck out as irrelevant merely because it raises a point on the
    pleadings which is bad in law.”2










  1. Furthermore, this court would not
    grant an application to strike out pleadings unless satisfied that
    the applicant seeking the striking out would be prejudiced in the
    conduct of its defence if the application were not to be granted. It
    is this peremptory requirement of prejudice which renders this
    application of a discretionary nature. 3










  1. A full court in South Africa recently
    stated the following in the context of an application of this nature
    – where an attack upon pleadings was also confined to
    irrelevance – after conducting a thorough survey of prior
    authorities:









'Irrelevant',
for the purposes of the Rule, means irrelevant to an issue or issues
in the action: see Stephens v De Wet (supra) and Meintjes v Wallachs
Ltd 1913 TPD 278 at 285. In the former of the two last-mentioned
decisions Innes CJ said at 282:








'(T)he
correct test to apply is whether the matter objected to is relevant
to an issue in the action. And no particular section can be
irrelevant within the meaning of the Rule if it is relevant to the
issue raised by the plea of which it forms a part. That plea may
eventually be held to be bad, but, until it is excepted to and set
aside, it embodies an issue by reference to which the relevancy of
the matter which it contains must be judged.'








The
Court will not concern itself with the validity or otherwise of the
claim, or whether it raises a cause of action: That may be a matter
for exception. All that concerns the Court is whether or not the
passage or passages sought to be struck out is or are relevant in
order to raise an issue on the pleadings: see Erasmus Superior Court
Practice at B1-161. In Golding v Torch Printing and Publishing Co
(Pty) Ltd and Others 1948 (3) SA 1067 (C) Ogilvie-Thompson AJ, as he
then was, said at 1090:








'A
decisive test is whether evidence could at the trial be led on the
allegations now challenged in the plea. If evidence on certain facts
would be admissible at the trial, those facts cannot be regarded as
irrelevant when pleaded'.”
4









  1. Where a court is in any doubt as to
    whether pleadings sought to be struck out as irrelevant are
    irrelevant, it would not strike out the passages in question. This
    was made clear in Richter v Town Council of Bloemfontein 5
    where it was stated:









'It
is further asked in the application that paras 4 and 5 of the
declaration be struck out on the ground that they are irrelevant and
superfluous. Now, I must admit that it is not clear to me that these
paragraphs are relevant, but, at the same time, I feel that it is not
impossible that they may become relevant in some way not yet
apparent. If there is that possibility, it would be proper to follow
the practice of the English Courts, which is that an application to
strike out irrelevant matter in a pleading will not be granted if a
doubt exists whether the matter is relevant or not (see Blake Odgers
Pleading and Practice, ch VIII). Even apart from that, it is possible
to regard both paras 4 and 5 as mere recitals of the history of the
case, and it therefore seems to me that the paragraphs should be
allowed to stand'. “









  1. These considerations are relevant to
    the context of the requirement prejudice which must be established.
    In the Vaatz matter, this court in considering the question
    of prejudice with regard to allegations sought to be struck in an
    affidavit in application proceedings dealt with that issue in the
    following way:




The
phrase 'prejudice to the applicant's case' clearly does not mean
that, if the offending allegations remain, the innocent party's
chances of success will be reduced. It is substantially less than
that. How much less depends on all the circumstances; for instance,
in motion proceedings it is necessary to answer the other party's
allegations and a party does not do so at his own risk. If a party is
required to deal with scandalous or irrelevant matter, the main issue
could be side-tracked, but if such matter is left unanswered, the
innocent party may well be defamed. The retention of such matter
would therefore be prejudicial to the innocent party.

6









  1. Before the equivalent of Rule 23 came
    into operation in South Africa, the courts had over the years not
    encouraged applications of this nature. 7
    This consideration is now strongly reinforced by the recent
    introduction of the judicial case management system in the Rules of
    Court. The objectives of judicial case management (JCM) are spelt
    out in Rule 37(r) to include:









(a)
to ensure the speedy disposal of any action or application;








(b)
to promote the prompt and economic disposal of any action or
application;








(c)
to use efficiently the available judicial, legal and administrative
resources;








(d)
to provide for a court-controlled process in litigation;








(e)
to identify issues in dispute at any early stage;








(f)
to determine the course of the proceedings so that the parties are
aware of succeeding events and stages and the likely time and costs
involved;








(g)
to curtail proceedings;








(h)
to reduce the delay and expense of interlocutory processes…"









  1. The purpose and objectives of JCM
    were recently referred to by the Supreme Court, albeit in a
    different context, in the following way:









The
main purpose of the JCM is to bring about a change in litigation
culture. The principal objectives of the JCM are to: ensure that
parties to litigation are brought as expeditiously as possible to a
resolution of their disputes, whether by way of adjudication or by
settlement; increase the cost effectiveness of the civil justice
system and to eliminate delays in litigation; promote active case
management by the courts and in doing so, not only facilitate the
expeditious resolution of disputes, but also bearing in mind the
position of other litigants and the courts‘ own resources; and
inculcate a culture among litigants and their legal representatives
that there exists a duty to assist the court in furthering the
objectives of JCM.”
8








[18] The introduction of JCM and its
objectives would be further factors relevant to the exercise of this
court’s discretion in applications of this nature. Applications
under Rule 23, unlike exceptions, do not dispose of claims or
defences. On the contrary, they have the potential of undermining
some of the foremost objectives of JCM such as the speedy disposal of
actions or applications the prompt and economic disposal of actions
and the efficient use of the available judicial, legal and
administrative resources. That does not mean to say that Rule 23(2)
should no longer be invoked by parties where justified. But these are
factors which may in my view be taken into account in the exercise of
a court’s discretion.








Application of principles to
present application








[19] I have already
referred to the basis upon which the first and fifth defendants
object to the inclusion of paragraphs 20 to 23 inclusively in the
first alternative claim. They complain that the allegations and
reference to a duty to enquire from the plaintiff whether or not the
intention as expressed in the agreement was its true intention and
whether to remain silent in those circumstances (in the knowledge
that the intention expressed by the plaintiff was not its true
intention) constituted or amounted to snapping at a bargain and that
the first defendant’s conduct was thus not
bona
fide
. Those are the essential averments
which the first and fifth defendants object to on the grounds of
irrelevance because, so they contend, these do not assist in the
claim based upon a unilateral
iustus
error
. They contend that these further
allegations are not relevant in that context and that the paragraphs
in question should be struck.








[20] On their
behalf, Mr Heathcote in detailed written submissions as well as in
oral argument referred to several authorities relating to mistake,
especially in the absence of any alleged misrepresentation. He also
referred to the authorities with regard to the use of the phrase
“snapping up an offer” and most particularly Sonap
Petroleum SA (Pty) Ltd (formerly known as Sonarep (SA) (Pty) Ltd) v
Pappadougianis.
9
The first and fifth defendants also submitted that
in establishing a
iustus error,
the cases tend to show that a prospective buyer
would be permitted more latitude in raising this doctrine, as opposed
to a seller, as is attempted in this instance, particularly in the
circumstances giving rise to the deed of sale, which arose from a
tender, as is referred to in the pleadings.








[21] Ms Chase on
behalf of the plaintiff on the other hand contended that Rule 23(2)
was not intended to open the door for litigants to take technical
objections which do not serve to substantially benefit the offended
party but rather serve to increase costs, on both sides, with
reference to Anderson and Another v Port Elizabeth Municipality.
10
Ms Chase also referred to the function of
pleadings, as explained in Becks Theory and Principles of Pleadings
in Civil Actions
11
and to the test as to prejudice and contended that
the application was to be considered in this context. Ms Chase also
referred to authorities on the issue of mistake and also referred to
the passage in
Sonap matter
where the Court concluded that:








The
snapping up of a bargain in the knowledge of such a possibility would
not be
bona
fide
.
Whether there is a duty to speak will obviously be dependant upon the
facts of each case.”
12








[22] The defendants significantly did
not object to paragraph 19 which forms part of the first alternative
claim. It is quoted above. This paragraph refers to factual matter.
It contains an averment that the first defendant failed to disclose
that it was aware that there were improvements on the property at the
time it made the offer to purchase or at the time that the sale was
concluded or at any time before the registration of the transfer.
That paragraph also asserts that the plaintiff was unaware of that
fact at any of those stages. The further averments which are then
contained in paragraphs 20, 21 and 23 include an allegation that the
first defendant with the knowledge of the property not being vacant
land had a duty to enquire from the plaintiff whether the intention
expressed by it was its true intention. The factual averment in
support of this allegation is in this paragraph 20, namely that the
first defendant knew at all material times that the property did not
consist of vacant land alone. But this allegation does not raise any
further matter which was not previously pleaded in paragraph 19
(except for the consequence of a value being represented by the
improvements which was at a level higher than the seller had agreed
to sell). Paragraph 19 contends that the first defendant failed to
disclose that it was aware of the improvements on the property at a
time when the plaintiff was unaware of that.








[23] The averment essentially objected
to, as I understand the argument, is that which refers to a duty to
enquire from the plaintiff as to whether the intention expressed by
it was its true intention. But that seeks to contend for a conclusion
of law – as to whether such a legal obligation exists- which
may or may not arise from the facts pleaded and which are to be
established at the trial. The further averments that the first
defendant by remaining silent in the knowledge that the intention
expressed by the plaintiff was not its true intention and thus that
it snapped up a bargain and the further averment that, by failing in
its duty to speak and snapping up the property and then contending
that the actions of the first defendant were not bona fide
that there was no consensus as a consequence of the actions on the
part of the first defendant, are essentially conclusions of law to be
drawn from those facts – of knowledge of the improvements and
the plaintiffs ignorance of the improvements and not adverting the
plaintiff to the existence of such improvements.








[24] It is correct
that, in absence of fraud (which is not contended in this matter),
the courts are primarily concerned with the intention of a party as
shown by its conduct and expressed in the words used in a contract.
Despite the distinguishable nature of the facts in the Sonap matter,
the snapping up of a bargain where a party was aware that the true
intention of the other was incorrectly reflected in the agreement and
whether this could give rise to a duty to speak and whether it would
not be
bona fide on
the part of the contracting party in the position of the first
defendant to have remained silent are matters for the trial court to
determine upon all the facts and circumstances. A conclusion that the
first defendant lacked good faith and whether this may have the legal
consequences as pleaded, particularly given the manner in which the
law of contract has recently developed in other areas in view of the
roles of public policy,
bona fides
and contractual equity as was referred to by Van
Heerden DCJ in the (South African) Supreme Court of Appeal in NBS
Boland Bank Ltd v One Berg River Drive CC and others,
13
would in my view be a matter for a trial court to
consider. Although those sentiments were expressed in an entirely
different context (of the power of a bank to vary interest rates of
mortgage repayments unilaterally in terms of a contractual
provision), the court in the NBS Boland Bank matter expressed the
view upon common law principles that this may not have been a
completely unfettered discretion and that it may need to measure up
to a standard of objective reasonableness akin to
arbitrium
bona vire.
14
Although also in an entirely different context,
the courts have also considered the question of good faith – or
a lack of it – in the context of the enforceability of a
contractual term to negotiate in good faith and enforce such a duty
where there was a deadlock breaking mechanism in a contract
15
. The role of public policy in contracts –
also in an entirely different context - has also received attention
in the context of constitutional values.
16
So too, may I add, on the other hand, is the
importance stressed in recent judgments of the
caveat
subscriptor
rule and the doctrine pacta
sunt servanda. The
latter has rightly been referred to as the cornerstone of the law of
contract and which has, with respect, correctly been referred to as
giving effect to the central constitutional values of freedom and
dignity and that the Constitution requires in general that parties
comply with contractual obligations freely and voluntarily
undertaken.
17








[25] The prejudice contended for by Mr
Heathcote on the part of the first and fifth defendants was that they
would need to plead to the averments in paragraphs 20 to 23
unnecessarily if they were irrelevant (and that evidence could be led
on the matters raised in the paragraphs). The averments in the
impugned paragraphs however directly relate to the allegations of
fact which precede them. Certain of the factual matter contained in
them (and upon which the legal conclusions sought to be drawn are
premised) such as the plaintiff’s lack of knowledge of the
property having improvements and the first defendant’s
knowledge of them have, as I have said, been included in paragraph 19
already. Evidence would thus be permissible on those allegations of
fact.








[26] One of the considerations
referred to in the Vaatz judgment concerning prejudice such as being
sidetracked would thus hardly arise. Nor would the issue of a party
being defamed. The complaints raised by the defendants against the
allegedly offending paragraphs, as I understand them, rather relate
to the conclusions of law or legal duties or obligations which the
plaintiff seeks to draw from factual matter already contained in the
pleadings such as a duty to enquire on the part of the first
defendant as to whether the plaintiff’s true intention was that
as expressed and where not speaking in the circumstances would amount
to “snapping up a bargain” and whether the first
defendant’s actions would not in the circumstances be bona
fide
.








[27] The issue
before me in this application is not whether these allegations would
amount to a cause of action as would arise in an exception. But this
would appear to be the way the first and fifth defendants have
approached this application. They essentially argue that the
plaintiff’s approach by including them is bad in law. As the
authorities make it clear and as was correctly conceded by
Mr
Heathcote, this court does not concern itself with the validity or
otherwise of the first alternative claim but rather whether the
paragraphs in question should be struck on the basis of irrelevance
and as to whether their inclusion would amount to prejudice to the
first and fifth defendants. It would seem that the first and fifth
defendants would seek a determination on questions of law relating to
the complex question of the ambit of the doctrine of iustus error and
the excusability of a contract denier’s mistake.
18
As was spelt out by Erasmus, with reference to
authorities, referred to above, this would not be the intention of
Rule 23(2). I agree with that view which is strongly underpinned by
the objectives of JCM.








[28] Like the Court in the Richter
matter referred to above I must similarly confess that it is not
entirely clear to me that all of the paragraphs as presently worded
would be relevant but, as in that matter, it is certainly not
impossible that they may become relevant in some way. They may yet be
relevant in determining whether a unilateral mistake in those
particular circumstances was justifiable (iustus) or not. Once this
is apparent, as it would certainly appear to me to be so, then it
would in my view be salutary to follow the English practice referred
to in the Richter judgment that, in the case of doubt existing, as it
certainly does appear to me, as to whether the paragraphs are
relevant or not as a matter of pleading, then the application
should not be granted. In reaching this view, I also take into
account that the factual issues raised by these paragraphs are quite
confined and follow upon the averments which precede them. They
include and refer to allegations contained elsewhere in the
particulars of claim. It would not seem to me that the first and
fifth defendants would be unduly prejudiced in dealing with, and
pleading to them, particularly given their confined factual nature
and by reason of the fact that the impugned paragraphs for the large
part attempt rather to raise conclusions of law to be drawn from
limited factual matter, only marginally amplified by the paragraphs
in question. It would rather appear that at the heart of the approach
of the first and fifth defendants that the issues raised by the
impugned paragraphs are bad in law. As I have already pointed out
with reference to the applicable authorities, it is not the purpose
Rule of 23(2) to determine preliminary points of law.








[29] Given the doubt that I have
concerning the issue of relevance and particularly whether the
matters raised in these paragraphs are relevant or not.



I am thus unpersuaded that the
paragraphs under attack by the first and fifth defendants are
irrelevant to the issues in this action for the purpose of the Rule
23(2) application. I am also of the view that the first and fifth
defendants are not unduly prejudiced by their inclusion. In the
exercise of my discretion, I conclude that the application to strike
out the alleged offending averments should be refused.








[30] The order I accordingly make is
as follows: The application to strike paragraphs 20 to 23 of the
further amended particulars of claim is refused with costs. These
costs include the costs of one instructing and one instructed counsel
and are to be paid by the first and fifth defendants.













______________________



DF SMUTS



Judge











































APPEARANCES








PLAINTIFF: Adv E Schimming-Chase



Instructed by Shikongo Law Chambers








FIRST AND FIFTH



DEFENDANTS: Adv R Heathcote SC



(with him Adv J Schickerling)



Instructed by Koep & Partners



(for first defendant)



Dr Weder Kauta & Hoveka Inc



(for fifth defendant)









1Vaatz
v Law Society of Namibia 1990 NR 332 (HC) at 334 H – 335 A.





2Erasmus
Superior Court Practice (Revised edition) at B1-161 and the
authorities collected in footnotes and





3Stephens
v De Wet 1920 AD 279 at 282





4Rail
Communters’ Action Group and Others v Transnet Ltd and Others
2006(6) SA 68 (C) at 83





51920
OPD 161 at 673-4





6Supra
at p 335





7Herbstein
and Van Winsen: The Civil Practice of the High Court and Supreme
Court of Appeal of South Africa (5 d) vol 1 at p 656 and the
authorities collected in footnote 40.





8Aussenkehr
Farms (Pty) Ltd v Namibia Development Corporation Ltd, unreported
Supreme Court 13/08/2012 (Case No SA 23/2010) at par [89]





91992(3)
SA 234 (A)





101954(2)
SA 299 (E) at 309 E.





11(6th
ed) at 44





12Supra
at 240





131999(4)
SA 928 at (SCA) 937 (G) – par [28]





14Supra
at 937 E – par [26]





15Southernport
Developments (Pty) Ltd v Transnet Ltd 2005(2) SA 202 (SCA)



See also: Andrew
Hutchison : Agreements to agree: can there every be an enforceable
duty to negotiate in good faith (2011) 128 SALJ 273 – 296.





16Barkhuizen
v Napier 2007(5) SA 323 (cc)





17Supra
at par 57





18See
Minette Nortje,‘Unexpected terms’ and caveat
subscriptor’ SALJ Vol 128(part4) (2011) at 741 for an
informative discussion of mistake and iustus error in the context of
‘unexpected terms’.