FACTORS TAINTING OR

EXCLUDING GENUINE AGREEMENT

(CONSENSUS)
Mistake: Where one or both of the parties is
mistaken about the true facts on which the
contract is based.
There appears to be consensus, but in reality
there is no consensus.
Effect: contract may be void.
Misrepresentation: Where one party makes a
false statement of fact to the other before
or at the time the contract is concluded.
There is consensus, but it was improperly
obtained.
Effect: contract may be voidable.
Relationship: Misrepresentation leads to
mistake.

VOID

VOIDABLE
1. Meaning?

No contract
Valid but flawed
2. Circumstances which lead to?
Misrep
Mistake Duress
Illegality
Undue influence
[Lack capacity] [Lack capacity]
3. Consequences/legal effect

Unenforceable Election:
Unjustified enrichment!!

Ratify OR Rescind

Restitutio in
Integrum

3. WHEN IS A MISTAKE

MATERIAL?
A) GENERAL RULE
B) SPECIFIC PRECEDENT
i. Error in negotio (type of contract)
ii. Error in corpore (subject-matter)
Pratley v Maritz (1894)

iii. Error in persona (other party)

iv. Error in motive

v. Error in substantia (quality/characteristics)

vi. Error as to terms of the contract NB!!!!

vii.Error of law?
Revenue 1992 (A)

Willis Faber Enthoven (Pty) Ltd v Receiver of

Examples
Type of mistake? Material or
non-material?
a. Car v Motorbike?
b. VW Polo v Toyota Corolla?
c. VW Polo v VW Golf?
d. VW Golf 3 v VW Golf 4?
e. Blue golf v red golf?
f. Top speed 140 v top speed
220?
g.Golden retriever v cocker
spaniel?
h.Golden retriever thinking it
a good guide dog?

4. WHEN IS A MISTAKE A
JUSTUS ERROR?
i. If party seeking to uphold contract
knew other party mistaken
ii. If party seeking to uphold contract
should have known other party
mistaken

Horty Investment v Interior

Acoustics 1984 (W)

iii. If party seeking to uphold contract

induced the mistake by
misrepresentation
i.e. party seeking to uphold contract knew
or should have known that no genuine
consensus but dissensus.

Karin has always wanted to own a Manx

Cat.
Sees a kitten for sale at a craft market.
Joyfully tells seller: My golly, a Manx
Kitten. How lovely. How much? Seller
says R500. Karin buys. Two days later
told by friend that just a tailless cat,
not a Manx Cat. Can Karin return cat
and claim money back, on basis that
contract is void by reason of mistake?

1. Common or unilateral mistake?

2. Material mistake?

3. Iustus error?

5. ERROR AS TO TERMS OF
THE CONTRACT & THE
CAVEAT SUBSCRIPTOR RULE
A.Caveat subscriptor
= let the signatory beware!
George v Fairmead Hotel 1958 (A)
Hartley v Pyramid Freight Couriers 2006 (SCA)

But even mistake re terms on signed

document CAN be a justus error!

B. WHEN WILL IT BE A JUSTUS

ERROR???
If specific duty to point out term on the facts of
that case!
Dlovo v Brian Porter Motors 1994 (C)
Spindrifter v Lester Donovan 1986 (A)

NB = no representation clauses.

The foundational principle of the law of succession is that property owners have a right to choose to whom to leave their property when they die. This simple proposition, that
individuals enjoy freedom of testation, is the lynchpin of the whole of the law of succession. Even the default rules of intestate succession are best-understood as a tacit exercise of
freedom of testation, since the rules are premised on the presumed intention of the deceased. The concepts of private property and freedom of testation are conjoined. Private
property presupposes that individuals can acquire property. Since property is finite, this in turn requires that individuals be able to dispose of property. Freedom of property is
meaningless if it does not include the freedom to dispose of property, which must include the power to dispose both in life and on death. Simply as an incident of the right to
property, the rationale for freedom of testation is a powerful one. Amongst its justifications is that it incentivises intergenerational savings and equity. Those who know that the
fruits of their industry or thrift will survive their deaths, and benefit someone they wish to advantage, have a reason to want to save. Those who know that property will not
survive their deaths, or who know they have no control over who the ultimate recipients will be, have no similar incentive.
The justification extends beyond the right to property, however. It goes to the dignity of the testator, by acknowledging that the relationships that mattered to the testator in life, and
which informed her testamentary choices, are worthy of respect. To override an individuals testamentary choices is to criticise those choices, and the criticism is not only of the
testators proprietary choices, but of her personal choices. It says of the testator that her subjective world view, her personal loyalties and attachments and sense of duty, were so
unreasonable for being contrary to societys expectations as to warrant being overridden. At its worst, legislative or judicial intervention may dictate to testators whom they may and
may not love, and may sanction the testators preferred heirs by denying them the property and the freedoms that accompany it.
Freedom of testation thus implicates the right to property and the right to dignity, the latter in a particularly fundamental way. Legislatures should be slow to limit these rights by too
readily interfering with an individuals testamentary freedom. When they do, the case for intervention should be compelling.
These arguments for freedom of testation notwithstanding, lawmakers through the ages have felt compelled to limit it. The South African legislature is no exception, although it has
done so far more recently, or belatedly, than its sister jurisdictions. Freedom of testation has been considerably circumscribed, by the Maintenance of Surviving Spouses Act and the
Pension Funds Act in particular. The extent to which these Acts limit freedom of testation is not, I believe, widely appreciated. For the majority of South Africans, freedom of
testation is today more illusory than it is real.
This article has three objectives. The first objective is to demonstrate how restricted freedom of testation has in fact become. The second is to provide a brief historical account of
changing attitudes to freedom of testation in Roman, Roman-Dutch and English law, both in order to explain, and to serve as a counterpoint to, modern South African law. The third
objective is to show that despite perceptions to the contrary, freedom of testation is in some senses arguably more restricted in South Africa than it is in our sister jurisdictions.
These objectives have a common purpose. That purpose is to remind readers of the values that underpin freedom of testation and that it is difficult to design restrictions that promote
the public interest in the ways intended, without also giving rise to unintended and undesirable consequences. The article sounds the caution that the existing and proposed
restrictions may not be as reasonable, in an open and democratic society based on respect for human dignity, freedom and equality, as they first appear to be.
II: SOUTH AFRICA IN THE 20TH CENTURY: FROM TESTAMENTARY FREEDOM TO TESTAMENTARY DUTY
The point of departure for this article and the law of succession equally, is freedom of testation. South Africas modern law of succession has been described as one which places a
high premium on freedom of testation. This premium was for a time so great that South Africa was criticised for taking freedom of testation further than any other Western legal
system. Underlying the criticism was the concern that property owners could abuse their freedom by capriciously or maliciously disinheriting financially dependent family members
towards whom they owed a moral duty of support, and towards whom they had owed a legal duty of support in life. The only exception to this absolute power of disinheritance lay
in respect of dependent minor children.
The ability to disinherit even financially dependent family members was thought to be inconsistent with the legally enforceable duty of support the deceased owed them while alive.
It was felt to be particularly anomalous that a divorcee, in whose favour a maintenance order had been granted, could claim support from a deceased ex-spouses estate while a
widow or widower, married to the deceased at the time of his or her death, could not *Senior Lecturer, Faculty of Law, University of Cape Town.
For a helpful discussion on general theories underpinning the law of intestate succession, see RJ Scalise Honor thy father and mother?: how intestacy law goes too far in protecting
parents (2006-2007) 37 Seton Hall Law Review 171. The preferences of the majority continue to play a role in shaping intestacy laws, but they are not determinative of intestacy
laws. See for example S van Erp The New Dutch Law of Succession in K Reid, MJ de Waal & R Zimmermann (eds) Exploring the Law of Succession (2007) at 207 and JC
Sonnekus Freedom of testation and the ageing testator in Reid (above) at 81.
Restrictions that apply only on death, to property transfers via inheritance, can be avoided by inter vivos transfers or the use of trusts, which only the wealthy can readily afford.
This is a point critics of inheritance seem not to appreciate. See for example M Orgain Death comes to us all, but through inheritance the rich can get richer: inheritance and the
Federal Estate Tax (2011) 4 Estate Planning and Community Property Law Journal 173.
Cockurn CJ in Banks v Goodfellow (1870) 5 LR QB 549 put it thus: [T]here can be no doubt that it operates as a useful incentive to industry in the acquisition of wealth, and to
thrift and frugality in the enjoyment of it. (at 564). Cf J Gold Freedom of testation: the Inheritance (Family Provision) Bill (1938) 1 Modern Law Review 296, whose criticisms
include that it has been the dominant factor in the emergence of extreme wealth inequalities in society, and that it encourages idleness amongst beneficiaries (at 296).
An infamous example of this is the American case of Hinds v Brazealle 3 Miss. 837 (1838), in which the intestate heirs of an American slave owner successfully challenged the
terms of his will. The testator fathered a child with a slave. He wished to emancipate mother and son and to institute his son as his testamentary heir. He was not permitted to
emancipate them without legislative approval under the law of his home state (Mississippi). He consequently took them to Ohio to effect the emancipation, and on their return to
Mississippi he confirmed the emancipation in his will and nominated his son as his sole testamentary heir. On his death his intestate heirs contested the will, and both the
emancipation and his sons institution as heir were overturned. The court held that the emancipation was ineffective and that mother and son were consequently still slaves incapable
of owning property in their own right. Instead they themselves were held to constitute property and as such to form part of the estate inherited by his intestate heirs.
See In Re BoE Trust Limited NNO and Others 2013 (3) SA 236 (SCA) para 27: Indeed, not to give due recognition to freedom of testation, will, to my mind, also fly in the face of
the founding constitutional principle of human dignity. The right to dignity allows the living, and the dying, the peace of mind of knowing that their last wishes would be respected
after they have passed away.
For a discussion of the role of dignity as a right and a fundamental value in our constitutional order, see in particular Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC),
especially para 36.
Act 27 of 1990 and Act 24 of 1954.
Other articles charting its history include MJ de Waal Law, society & the individual: the limits of testation in D Visser (ed) Essays on the History of Law (1989) 300; F du Toit
The impact of social and economic factors on freedom of testation in Roman Law and Roman Dutch Law (1999) 10 SLR 232; F du Toit Succession Law in South Africa a
Historical Perspective in Reid (n 1) 67.
The danger of policy choices giving rise to undesirable consequences has been most famously recognised and analysed by Nobel laureate Ronald Coase in his seminal work The
problem of social cost (1960) 3 Journal of Law & Economics 1.
As required by section 36 of the Constitution of the Republic of South Africa, 1996.
MJ de Waal & MC Schoeman Law of Succession Students Handbook 3ed (2003) 87.
MM Corbett, HR Hahlo & G Hofmeyer The Law of Succession in South Africa (1980) 33; The statement is repeated almost verbatim in the second edition - see MM Corbett, G
Hofmeyer & E Kahn The Law of Succession in South Africa 2ed (2001) 40.
Roman-Dutch law imposes reciprocal duties of support on spouses, all ascendants and descendants in the vertical line and on siblings in the horizontal line. The duty is an inter
vivos duty only and terminates on the death of either the provider or dependent. For a comprehensive discussion of the common law duty of support, see P Boberg The Law of
Persons and the Family (1977) 249-278. Under African Customary Law, duties of support may be owed to all members of the extended family, see TW Bennett African Land
A History of Dispossession in R Zimmermann & D Visser (eds) Southern Cross: Civil Law & Common Law in South Africa (1996) at 72. Under the common law duties of support
do not arise as between aunts/uncles and nieces/nephews. Duties will only arise pursuant to a formal adoption under the Childrens Act 38 of 2005. By contrast the duty has been
held to arise both in the context of a customary-law adoption by an aunt of her nephew (Kewana v Santam Ins Co Ltd 1993 (4) SA 771 (TkA)) and in the context of a possibly de
facto adoption by an uncle of his nephew and niece (Metiso v Padongelukfonds 2001 (3) SA 1142 (T)), notwithstanding the fact that the statutory requirements for a formal adoption
had not been satisfied in either case, and notwithstanding the fact that the customary-law requirements for adoption may not have been satisfied in the latter case.
Carelse v Estate de Vries (1906) 23 SC 532. In the first edition of The Law of Succession Corbett et al discuss the duty as one which applies exclusively to minor children, (n 12)
35. Following the decision in Hoffmann v Herdan NO 1982 (2) SA (T) that view has changed and the second edition states that a deceased parents estate may, in appropriate
circumstances, be under a duty to support a major child (at 41). Notwithstanding the decision in Hoffmann, the existence and scope of the duty as it applies to major children
remains uncertain. Hoffmann is persuasive authority only, and the claimant daughter suffered from ill-health.

CONSUMER PROTECTION ACT 2008

Prohibited transactions, agreements,
terms or conditions
51. (1) A supplier must not make a
transaction or agreement subject to
any term or
condition if
(g) it falsely expresses an acknowledgement
by the consumer that
(i) before the agreement was made, no
representations or warranties were made
in connection with the agreement by the
supplier or a person on behalf of the
supplier;

(3)A purported transaction or agreement,

provision, term or condition of a
transaction or agreement, or notice to
which a transaction or agreement is
purported to be subject, is void to the
extent that it contravenes this section.

Right to fair, just and reasonable terms and conditions

48. (1) A supplier must not
(a) offer to supply, supply, or enter into an agreement to supply, any
goods or services
(i) at a price that is unfair, unreasonable or unjust; or
(ii) on terms that are unfair, unreasonable or unjust;
(b) market any goods or services, or negotiate, enter into or administer
a transaction or an agreement for the supply of any goods or
services, in a manner that is unfair, unreasonable or unjust; or
(c) require a consumer, or other person to whom any goods or services
are supplied at the direction of the consumer
(i) to waive any rights;
(ii) assume any obligation; or
(iii) waive any liability of the supplier,
on terms that are unfair, unreasonable or unjust, or impose any such
terms as a condition of entering into a transaction.
(2) A term or condition of a transaction or agreement, or a notice to
which a term or condition is purportedly subject, is unfair,
unreasonable or unjust if
(a) it is excessively one-sided in favour of any person other than the
consumer or other person to whom goods or services are to be
supplied;
(b) the terms of the transaction or agreement are so adverse to the
consumer as to be inequitable;
(c) the consumer relied upon a false, misleading or deceptive
representation, as contemplated in section 41 or a statement of
opinion provided by or on behalf of the supplier, to the detriment of
the consumer; or

A lecturer at UCT buys a chair from a

supplier of office furniture for R10 000.
The reason the lecturer has bought
the chair is because she has a back
problem, and needs a special
ergonomically-designed chair to
ensure her back problem does not
worsen as a result of the hours she
spends sitting at work. After using the
chair a few days, the lecturer discovers
that the chair is unsuitable for her
particular back problem, and that it is
actually aggravating her problem
rather than alleviating it. The supplier
refuses to cancel the contract by
agreement. The supplier did not
market the chair as an ergonomicchair designed or as one suited to
alleviating back problems. The
lecturer approaches you for advice as
to whether there is any basis on which
she can get out of the contract.
Advise the lecturer.

SOLUTION?

RECTIFICATION
Mistake on document, not in minds
parties.
IS agreement, but document
doesnt accurately reflect the
agreement.
Apply to court to have document
rectified.
Applicant must prove:
a) That document inaccurate
b) What true agreement was, and how
document should therefore read.
Cf Horty Investments v Interior
Acoustics
Obvious difficulty facing applicant?

This lease shall commence on 1 May

1981 and shall continue for a period
of two years until 30 April 1983.
This lease shall not upon expiry of
such period come to an end but
shall continue otherwise on the
same terms and conditions as a
monthly tenancy subject to three
calendar months notice on either
side, which notice shall be given in
writing by registered post or by
delivery, but under no
circumstances shall such notice
commence to run before 1 May
1993.
Year 1: R700 pm
Year 2: R756 pm
Thereafter: R816 pm