Brits v Kommandantsdrift CC and Others

The case concerned a disputed piece of land called "the wedge" originally part of farm Onder Zandrift no. 119. In 1993, Meyer le Roux Snr subdivided the original farm, creating the wedge which was transferred to his son Michael. The wedge was consolidated with another portion to create farm 446. In 1997, Michael transferred farm 446 to Kommandantsdrift CC (owned by Meyer Jnr). In 2000, the CC sold farm 446 to Nico le Roux. In 2008, Nico sold farm 446 to the appellant Johannes Brits. Crucially, at the time of both sales, all parties believed the wedge was NOT part of farm 446 but rather part of the CC's farm (Kommandantsdrift). After the sales, Meyer Jnr continued farming the wedge and invested substantial money in establishing fruit orchards there from 2003. Brits never farmed the wedge. In 2013, Brits sued the CC for occupation of the wedge. In 2015, the CC and Nico instituted actions claiming the wedge, seeking declarations that both sale contracts were void due to common error.

• Whether the contracts of sale of land (2000 and 2008) were void ab initio due to common error by all contracting parties relating to a material term
• Whether the defence of prescription applied to bar the CC's claim for re-transfer or rectification
• Whether the CC was entitled to rectification of the deeds office registries to reflect it as owner of the wedge
• Whether the common error as to the wedge forming part of the merx was an error in substantia (material term) or merely an error in motive

The appeal was dismissed with costs. The matter was remitted to the Western Cape High Court for determination of the remainder of the issues, including whether the CC was entitled to rectification of the deeds office registries to reflect it as owner of the wedge.

A contract of sale is void ab initio where all parties to the contract share a common error relating to a material term that is fundamental to the transaction, such that none of the parties would have agreed to the contract if they had known the true situation. Such common error must relate to the substantia of the contract (the material identity of what is being sold), not merely the motive. On prescription: The party raising prescription bears the onus of proving the date upon which the claimant became aware of the facts underpinning the claim and the identity of the debtor, or alternatively the date upon which the claimant would have acquired such knowledge through reasonable care. The inception date for prescription must be pleaded. Without evidence establishing actual or constructive knowledge, prescription cannot be established.

The court noted with apparent concern the disconnect between the formal legal position (the wedge remaining registered in Brits' name) and the de facto position (the wedge being farmed by the CC as part of Kommandantsdrift). This observation highlighted the practical importance of completing the rectification proceedings. The court also implicitly commented on the importance of parties and courts ensuring that all issues agreed to be adjudicated are fully determined, noting that the high court "regrettably" failed to deal with the issue of whether the CC was entitled to claim rectification of the deeds office registries despite this being part of the agreed issues for determination.

This case clarifies important principles in South African contract law regarding common error (consensus ad idem) and when such error vitiates consent. It demonstrates the distinction between error in substantia (material error affecting the essence of the contract) and error in motive. The case emphasizes that where all parties to a contract share a common fundamental misapprehension about a material term - in this case the identity of the property being sold - the contract is void ab initio. The judgment also reinforces the strict requirements for establishing prescription, particularly the onus on the party raising prescription to prove when actual or constructive knowledge arose. It illustrates the importance of ensuring all agreed issues are properly adjudicated before matters are finalized.