Van Huyssteen N.O. and another v Milla Investment and Holding Company (Pty) Ltd

The respondent, Milla Investment and Holding Company (Pty) Ltd, sued as cessionary of a claim originally held by Attfund Limited, the owner of a shopping centre. The claim was for allegedly underpaid rental by the Sport City Trust (represented by the appellants as trustees) in respect of larger premises occupied by the Trust for its Tekkie Town business. An original written lease from 2005 existed for smaller premises (shop 17). In 2006 Cape Gate, the developer, sent an offer to lease larger premises to the Trust. Mr van Huyssteen, on behalf of the Trust, made handwritten amendments to this offer (including lower escalation and no escalation after year one) and returned it, but it was never seen or accepted by Cape Gate. Despite this, the Trust took occupation of the larger premises and paid rental calculated on the basis of the old 2005 lease. After a dispute arose, Attfund claimed the difference between rental paid and what it alleged was payable under the amended offer, which claim was later ceded to Milla.

The appeal was upheld with costs. The order of the high court was set aside and replaced with an order dismissing the action with costs.

The case clarifies the proper application and limits of the doctrine of quasi-mutual assent and the 'battle of the forms' in South African contract law. It confirms that the reliance theory cannot be used to bind a party to contractual terms it does not seek to enforce, and that a plaintiff must still prove the existence and terms of the contract relied upon.