IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

JUDGMENT

[1] This is an application in which the applicant seeks an order that a deed of sale which was entered into between appficant and first respondent. On 12 July 2006 the sale of the immovable property situate at 66 Lily Street, Bellville South (the "property") be declared void.

[3] Furthermore, applicant alleges that first respondent unduly influenced and manipulated the applicant to aEienate the property for less than its market value. In addition, applicant alleged that the agreement was entered into without the consent of the second respondent {first respondent's wife) and the agreement was accordingly void.

[4] Further affidavits were filed pursuant to this application. Additional allegations were then made by first applicant. I shall not dwell on them all but, significantly, in a further affidavit, applicant averred that he had been subject to duress in circumstances where first and second respondent had indeed exploited his penchant for drinking and that he was an alcoholic. None of these averments were pursued in the final stages of this case when it was contended by applicant that, in essence, the agreement was void because of a common mistake.

[5] It appears to me, having examined the papers, that the issue of common mistake as the justification for the relief sought by applicant was, at the very least, comprehensively raised for the first time on 13 May 2008. At that hearing, applicant's legal representatives abandoned ail legal arguments which were raised previously and the argument of common mistake was only one with which he persisted.

[6] In order to assist in this particular examination as to whether there was a justification for the relief sought by applicant on the grounds of common mistake, I requested further supplementary heads of argument from both legal representatives. I am indebted to both counsel for having supplied me with written arguments.

[7] There is a further difficulty to which I must make reference. In examining the question of mistake, I was not entirely certain as to the form of mistake upon which the case was based, f must assume that the mistake to which the applicant refers is a mistake which is referred to in the literature as a "common mistake". That itself raises a problem because the question arises as to the nature of a common mistake. When parties share the same   mistake,   they   are   in   essence   in   complete agreement. There is a consensus between the parties but it is based on a common false supposition that a certain state of affairs exists when in fact the converse is the case.

"This error common to both parties is not in dispute and the real issues in the case were what was the nature of the transaction which led to the payment and what legal consequences flowed therefrom".

[13] The common error was that the car delivered was car (A) and not car (B) That was common cause. In this case that assumption cannot be employed, the submissions of applicant's counsel notwithstanding, that many of the facts were common cause. The facts are somewhat more complicated when considered within the context of the law that I have briefly outlined. Applicant relies on an answering affidavit in which at paragraph 24 thereof, first respondent states:
"I wrote the purchase price being R93 000 in the agreement. I thought that the price was reasonable and I was desperate to that area(sic). I also thought that the rates invoice represented the value of the property"
Applicant appears to rely on the last sentence of this paragraph to contend that both parties believed that the municipal rates invoice reflected the market value of the property.

[14] Further in the affidavit, first respondent explains the basis on which he considered that R93 000 represented a fair price for the property. Accordingly, he states thus:

I thought that the price would be between R80 000 to R100 000 as it was in a worse state than the house in the same road which sold for R80 000. I understood that we would negotiate the exact purchase price later".
A further material statement by first respondent is the
following:
"When I got to the portion of the document which is blank for the purchase price to be inserted I asked how much the applicant wanted to sell the house for. The applicant stated that he had a rate invoice and produced it from his pocket. The applicant stated that according to the rate invoice the value of the property was R93 000. I checked the rate invoice and I saw that the property was valued at R93 000... I deny that I kept the true market value of the property from applicant as I was of the opinion that R93 000 was a fair price for the property based on the fact that another house was sold in the same street for R80 000 a year earlier. It was the applicant who suggested the purchase price and not me. I was prepared to pay the amount of R93 000".

"It is my respectful submission that first respondent intentionally kept the true state of affairs as to the actual market-related value of the property from me and induces(sic) me to alienate and sell my property far(sic) less to what the market-related value was". Later he says:
"It is my humble submission that the first respondent misrepresented himself by conveying to me information based on the false premise and in so doing induced me to sell the property to him for R93 000".
There is a further allegation that the fault fay at the door of first respondent's attorneys who should have so informed the applicant and that accordingly he was misled.

[20] It was suggested that our Constitution introduces a concept of good faith into our law of contract and that courts should utilise this concept to protect the weak and those who have suffered from an abuse of contractual power. Leaving aside the controversy relating to these questions of contract in our constitutional error, courts have to base an analysis upon the facts. Neither of these parties had a significant amount of contractual power. This was a relatively simple transaction between two individuals, neither of whom appears to be an owner of any means of production.

[21] The facts illustrate that the price which was agreed was R93 000. The facts do not indicate that first respondent knew or reasonably could have known that R93 000 was not the fair value of the house because, as he averred, he had information about a comparative sale on the same street approximately a year earlier. On the factual matrix which must inform the application of the law, there is no room in this case for utilising concepts of good faith to trump the facts which have been set out on the affidavits.

1.      The application is dismissed.
2.	The applicant is ordered to pay the first and second respondents' costs, such costs to include the costs on the postponement of this matter on 30 November and the hearing on 13 May 2008.