Source:

South African Law Reports, The (1947 to date)/CHRONOLOGICAL LISTING OF CASES – January 1947 to January 2024/1994/Volume 1: 1 ­ 332 (January)/MARESKY
v MORKEL 1994 (1) SA 249 (C)

URL:
http://jutastat.juta.co.za/nxt/gateway.dll/salr/3/8250/8251/8269?f=templates$fn=default.htm

MARESKY v MORKEL 1994 (1) SA 249 (C)

1994 (1) SA p249

Citation 1994 (1) SA 249 (C)

Case No A1101/92

Court Cape Provincial Division

Judge Friedman JP, FARLAM AJ

Heard July 30, 1993

Judgment August 24, 1993

Annotations Link to Case Annotations

Flynote : Sleutelwoorde
H Contract ­ Reality of consent ­ Mistake ­ Plaintiff having purchased property under mistaken impression of its true location ­ Property having
been put up for auction but wrongly described in advertisement for auction ­ Plaintiff having arrived at auction after auctioneer had told
potential bidders that property being sold was not one at which auction was being held but one some 300 metres away ­ Plaintiff's initial offer
at auction I rejected, but subsequent higher offer made at auctioneer's office accepted ­ Auctioneer having pointed out to plaintiff true
position of property on street map but such not alerting him to fact that property not one on which auction held ­ Plaintiff's error having related
to identity of J property and not its qualities, and accordingly an error in corpore

1994 (1) SA p250

A ­ Providing that error justus, plaintiff's consent to entire contract vitiated and seller accordingly not entitled to invoke clause in agreement
precluding liability for misrepresentation ­ Auctioneer not having done enough to remove error, ie to make plaintiff aware what property was
being sold ­ Plaintiff's error accordingly justus ­ Purported agreement void. B
Headnote : Kopnota
The appellant appealed against a decision in a magistrate's court in terms of which he was ordered to repay the respondent a sum of
approximately R17 500 which the respondent had paid for a property purportedly sold in terms of a written agreement of sale. The respondent
alleged that he had entered into the agreement in the mistaken belief that the property described in C the agreement of sale was situated at a
certain place ('site A'), whereas in fact it was situated some 200­300 metres distant from that spot ('site B'). This mistake, the respondent
alleged, had been a justus error because the appellant's agent, one R (an auctioneer), had represented to him that the property was situated
at site A. It appeared that the property had been put up for auction on the day before the sale took place. On the day before the auction an
advertisement for the auction which had appeared in D a newspaper had described the property to be auctioned as being situated at site A. On
the day of the auction R's attention had been drawn to the fact that the place where the auction was being held and where the auction
advertising board was placed was in fact not the property being auctioned, and he had conveyed this fact to those then present, which group
had not included the respondent, who had arrived late. The respondent's bid at the auction was not accepted. The next day he went to R's
office and made a higher offer, which was accepted by the appellant. While there, R had E pointed out to him the true position of the property
on a street map and a site diagram. This had however not alerted the appellant to the fact that the appellant's property was not the one on
which the auction had been held. On appeal, the appellant, inter alia, relied on clause 16 of the agreement, which precluded liability of the seller
or his agents for any misrepresentations.
Held, that it was clear that the respondent had intended to buy the property at site A, and not that at site B, that his error thus related to F
the identity of the property and not merely to its qualities, and that it followed that the respondent's error had been an error in corpore. (At
256F­G.)
Held, further, that this meant that the respondent's consent to the entire agreement was vitiated (provided of course that his error had been
justus), and that the appellant's attempt to invoke clause 16 of the agreement accordingly did not assist him. (At 256G/H­H.)
G Held, further, as to the question whether the respondent's error had indeed been justus, that, applying the test laid down in George v
Fairmead (Pty) Ltd 1958 (2) SA 465 (A) at 471A­D, it was clear that R should have realised that there was a real possibility of a mistake on the
part of the respondent, and that he should either have enquired whether respondent really intended to purchase the property at site B, or made
it clear to him that it was the property at site B and not that at site A that was for sale. (At 258D­E read with 257A/B­D.)
HHeld, further, that what R had done had not been enough to remove the error that had been brought about by his misleading advertisement
and the fact that he had held the auction at site A. (At 258E/F­F.)
Held, accordingly, that the respondent's error had been justus and that the purported agreement was void. (At 258F.) Appeal dismissed. I

Case Information
Appeal from a decision in a magistrate's court. The facts appear from the reasons for judgment.
A R Sholto­Douglas for the appellant.
D A Lenhoff for the respondent.
Cur adv vult.
J Postea (August 24).

1994 (1) SA p251

Judgment
A Farlam AJ: Appellant appeals against the judgment of an additional magistrate for the district of the Cape who (a) ordered him to repay to
respondent the sum of R17 579,50 which respondent had paid to him on account of the purchase price of a property purportedly sold in terms of
a written agreement of sale; and (b) dismissed his counterclaim for damages allegedly suffered by him in consequence of respondent's alleged B
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repudiation (Pty) Ltd. which he accepted.
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The property which forms the subject­matter of the purported agreement of sale is described therein as 'portion 1 of the Farm 715, Cape Road,
 Judgment
A Farlam AJ: Appellant appeals against the judgment of an additional magistrate for the district of the Cape who (a) ordered him to repay to
respondent the sum of R17 579,50 which respondent had paid to him on account of the purchase price of a property purportedly sold in terms of
a written agreement of sale; and (b) dismissed his counterclaim for damages allegedly suffered by him in consequence of respondent's alleged B
repudiation of the agreement which he accepted.
The property which forms the subject­matter of the purported agreement of sale is described therein as 'portion 1 of the Farm 715, Cape Road,
in extent 8 568 square metres situate on Ottery Varkensvlei Road, Philippi'. Respondent alleged that he entered into the purported agreement in
the mistaken belief that the property sold was situated next to 11 Ottery C Varkensvlei Road, Philippi, whereas the property so described was
'some 200 to 300 metres away from 11 Ottery Varkensvlei Road in a low­lying damp area close to a nearby squatter camp'.
He alleged further that the error on his part was justus, in that by reason of the fact that appellant's agent, one S Radowsky of WP Sales D
Estate Agents and Auctioneers, represented to him, before the conclusion of the purported agreement, that the property was situate next to
11 Ottery Varkensvlei Road, and material in that, had he known the true state of affairs, he would not have entered into the purported
agreement.
In his judgment the magistrate referred to the property which is next to E 11 Ottery Varkensvlei Road, Philippi, as 'property B', and the property
described in the purported agreement of sale as 'property A': in what follows I shall do the same.
In this plea appellant admitted that the property 'sold' in terms of the purported agreement was some 200­300 metres away from 11 Ottery
Varkensvlei Road. He averred further that prior to the conclusion of the F purported agreement respondent was
'made aware and did know that the property that was being sold was not situated next to 11 Ottery Varkensvlei Road but was in fact situated some 200­300
metres away therefrom'.

It is common cause between the parties that on the day before respondent G signed the purported agreement appellant's property was put up
for auction by Mr Radowsky, acting as appellant's agent. The advertisement which appeared in the Argus newspaper on the day before the
auction, and which respondent saw, was in the following terms:
[zPicz]

1994 (1) SA p252

FARLAM AJ
A It is thus clear that what was advertised for sale was not appellant's property, property B, but property A.
At the trial one William Jan Frederick Wynand Boer, the owner of property A, who was called as a witness for appellant, testified that before the
auction began he spoke to Mr Radowsky and drew his attention to the fact B that the property where he and the people who had come to
attend the auction were standing, belonged to him, Mr Boer, whereupon Mr Radowsky announced to those present that the property being sold
was further down the road and was not where the auction advertisement board was and where they were standing. It was not clear from Boer's
evidence whether C respondent was present when the announcement to which I have referred was made.
Mr Radowsky, who was also called as a witness for appellant, stated in his evidence that respondent was present when the announcement was
made. It is common cause that respondent's bid at the auction was not accepted and that on the following day respondent called at
Radowsky's office where he made a higher offer, which was accepted by appellant. Radowsky testified D that when respondent came to see him
the following day, when the purported agreement was signed, he pointed out to him that the property being sold was not that next to No 11.
He said that because he wanted to make sure that respondent was not making an error.
In answer to a question whether he conceded that there was a possibility E that respondent could have been misled at the auction he replied:
'I had to make sure, because at the end of the day he's going to point fingers at me.'

Under further cross­examination Radowsky stated that what he had done on the day the purported agreement was signed was to point out on a
street F map (which was handed in as exh E1) that the plot he was selling was adjacent to Highlands Estate. Respondent's evidence was to the
effect that he arrived late for the auction (which, it will be recalled, was held on property A), that no announcement was made in his presence
as to the true location of the property being sold and that the following day, when he made an increased offer for the property, he was not told
that the G property where the auction took place was not the property being sold. He said that he asked Mr Radowsky for the diagram of the
property and was given a street map (exh E1) and a site diagram (exh E2) and was told that the property abuts on Highlands Estate. He stated
that he did not know where the edge of Highlands Estate was with the result that what Mr H Radowsky told him did not alert him to the fact
that appellant's property, which was the merx set out in the purported agreement of sale, was not next to No 11 Ottery Varkensvlei Road but
some 200­300 metres away. He stated further that property A was not suitable for the purpose for which he bought it.
I Respondent testified that he took his manager, Mr C D McNaughton (who was called to corroborate this part of his evidence), to property A
so that they could make plans as to what they were going to do there. Subsequently, he said, he was informed by his land surveyor, to whom
he had sent the site diagram with an instruction to locate the pegs, that the property he had purportedly bought was not next to No 11 (as
Radowsky had J told him) but 300 yards down the road.

1994 (1) SA p253

FARLAM AJ
A The case was fought in the magistrate's court very largely on the issue as to whether respondent knew that the property being sold was
property B and whether he accordingly intended to buy property B. The magistrate, as I have said, gave judgment in favour of respondent both
on the claim for repayment of moneys paid on account of the purchase price of the property B and on the counterclaim. He accepted
respondent's evidence that he was not present when the announcement to which I have referred was made. He also found that Mr Radowsky,
by giving respondent the street map and the site diagram, did not do enough to rectify the mistake in the advertisement. He C stated in this
regard that exhs E1 and E2 do not take the matter any further and do not clearly indicate which property was sold, so that, even if Mr
Radowsky pointed out the property marked X on exh E1, the mistake that had been made was not in any way rectified by exhs E1 and E2. He
proceeded to find that the error made by respondent was a justus error and he accordingly gave judgment for respondent for the amount
claimed with interest and costs.
D In support of his finding that respondent's error was a justus one the magistrate said:
'. . . once there has been this error based on a misrepresentation, the onus does shift to the person who had made the misrepresentation to correct it. It is the
court's opinion that this was not done.'

E Appellant appealed against this judgment, essentially on two grounds:

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(a) the magistrate should have found that respondent was present when Mr Radowsky announced the situation of the property to be
sold and when Mr Boer stated that the property upon which the auction was being held was not for sale; and
 D In support of his finding that respondent's error was a justus one the magistrate said:
'. . . once there has been this error based on a misrepresentation, the onus does shift to the person who had made the misrepresentation to correct it. It is the
court's opinion that this was not done.'

E Appellant appealed against this judgment, essentially on two grounds:

(a) the magistrate should have found that respondent was present when Mr Radowsky announced the situation of the property to be
sold and when Mr Boer stated that the property upon which the auction was being held was not for sale; and
(b) the magistrate having found that the mistake relied upon by F respondent in his pleadings and his evidence was an 'error based on a
misrepresentation', he should have non­suited respondent because liability for misrepresentation had been expressly excluded by
the terms of the agreement of sale clause 16 of which provided:
'Save as is recorded herein the buyer/bidder acknowledges that G no warranties or representations or misstatements of any
description have been made by the seller, his agent or any other persons and that this purchase shall be strictly limited to the
terms and conditions hereof.'
In view of the fact that clause 16 of the purported agreement had not been pleaded as a defence in the magistrate's court, appellant brought
an H application on notice of motion at the hearing of the appeal asking for leave to amend his plea by inserting at the end of para 6 thereof
the following new subparagraph:
'(c) Alternatively, and only in the event of this honourable court finding that defendant's agent made the alleged representation,
defendant pleads:
I (i) that the aforesaid representation was made innocently, alternatively negligently; and
(ii) defendant's liability for such misrepresentation is expressly excluded by the provisions of clause 16 of (the deed of sale).'
This application, which was argued together with the appeal, was opposed J by respondent on the grounds that (1) no reasons had been
furnished for

1994 (1) SA p254

FARLAM AJ
A the belated application and (2) the amendment would in any event render the plea excipiable. In view of the conclusion to which I have
come on the second ground of objection it is not necessary to deal with the first ground.
Mr Sholto­Douglas, who appeared in this Court on behalf of appellant, contended that the respondent in this case is very much in the same B
position as the purchaser of the farm in Trollip v Jordaan 1961 (1) SA 238 (A), who, the majority of the Appellate Division held, was bound by a
deed of sale which contained a clause in which it was acknowledged, inter alia, that no representations whatsoever had been made by either
party or his agents other than such as were included in the agreement and signed by the C parties. Trollip v Jordaan (supra) was an appeal
against a judgment of the Transvaal Provincial Division upholding an exception to the appellant's declaration in which it was alleged that a deed
of sale signed by the parties was void because of the appellant buyer's belief that the farm allegedly purchased, a farm known as 'Klipdraai No
225, district Pietersburg . . . and certain portions marked "A" of the farm Waterval No D 2395, district Pietersburg', was
'of a particular shape and was in a particular position and included a substantial area of valuable afforested land comprising approximately 400 to 600 acres
and containing about 300 000 planted and established pines'

whereas the farm E

'according to its actual boundaries was of materially different shapes and part of it was in a materially different position and it only included about 100 acres of
afforested land with approximately 50 000 pine trees'

as a result of which the buyer, if he had

F 'known the true shape and position of the said farm and that it only included the said 100 acres of afforested land . . . would not have concluded and signed
the said deed of sale',

which was accordingly void.

In a reply to a request for further particulars the buyer stated that he acquired the mistaken belief referred to in his declaration as a result of G
statements made at various times by the defendant seller personally and by two persons who were the defendant's agents to sell the farms.
The defendant seller's exception, which as we have seen was upheld both by the Court a quo and the majority of the Appellate Division, was
based on clauses in the deed of sale which provided that no representations (other H than those included in the deed) had been made by either
party or his agents. Both Hoexter JA (who gave judgment on behalf of the majority) and Steyn CJ (who gave judgment on behalf of the
minority) considered the question as to whether the buyer's mistake could be regarded as an error in corpore. Both Judges appear to have been
in agreement that, if the buyer's mistake could be described as an error in corpore, then the sale I may well have been void: Hoexter JA was,
however, of the view that the buyer's mistake was not an error in corpore. He said (at 253E­F) that the buyer
'was at all relevant times aware of the identity of the merx and . . . was misled by the misrepresentation as to the shape and position of that merx in relation
to its northern boundary and as to the area of afforested land J included therein'.

1994 (1) SA p255

FARLAM AJ
A Later he referred to Digest 18.1.9 pr where Ulpian is reported as having said:
'It is obvious that in contracts of sale there must be consent; the sale is invalid if there is disagreement either as to the fact of sale or the price or any other
matter. If therefore I thought I was buying the B Cornelian estate and knew that you were selling the Sempronian, the sale is void on the ground that we were
not at one as to the thing sold.'

(De Zulueta's translation in The Roman Law of Sale at 89.)

Hoexter JA said in this regard (at 254A­D):
C 'The present case is quite different from that referred to in the Digest 18.1.9 pr . . . . In the present case the seller is selling and the buyer is buying the
Sempronian estate, but the seller has misrepresented the amount of afforested land included in that estate. It is hardly necessary to say that a mistake as to the
amount of afforested land included in the property cannot be regarded as an error in corpore.
To sum up at this stage, in my opinion the mistake of the appellant, induced by the respondent's innocent misrepresentation, was neither a D common mistake
nor an error in corpore.
The appellant relies on his own unilateral error, not by itself, but because it was induced by a misrepresentation. In such a case it is the misrepresentation
which is the true cause of action. No doubt the pleader wished to avoid reliance on a misrepresentation as such by reason of the provisions of clauses 1 and 8 of
the deed of sale, but he cannot improve his position by relying on the mistaken belief which is the inevitable E result of the misrepresentation.
It is obvious that any actionable misrepresentation must have as its effect a mistaken belief on the part of the representee. If clauses 1 and 8 of the deed of
sale prevent the appellant from relying on any innocent misrepresentation, then they are equally effective in preventing him from relying on a mistake induced
solely by that very misrepresentation.' F

In Allen v Sixteen Stirling Investments (Pty) Ltd 1974 (4) SA 164 (D), a case which is virtually on all fours with the present case, Howard J held
that, where there was an error in corpore, which vitiated consent to the whole contract, a clause such as clause 16 in the purported
agreement in this case does not avail the party who seeks to contend that the purported G agreement must be enforced, even where the error
in corpore relied on was induced by a misrepresentation. In support of this conclusion Howard J quoted with approval the comment made by the
late Dr P M A Hunt in his note on Trollip v Jordaan (supra) in 1961 Annual Survey of South African Law at 95 where the learned author said:
H 'Prima facie it would seem that the vice taints consent to the whole contract, including the exemption clause. All the terms of the contract together regulate
the contract's object, and it is difficult to see how the consent can but stand or fall as a whole. It seems impermissible to find a separate untainted consent to the
exemption clause.'

Howard J added the following observation of his own (at 171B­F): I

'I can find no fault with that reasoning, provided that the "vice" is understood as meaning something in the nature of an essential error which vitiates consent
and renders the contract void ab initio. Subject to that qualification, there seems to be no legal or practical difficulty in taking the argument to its logical
conclusion, namely that the parties to a contract can never validly agree, in terms of the contract, that such J "vices of consent" will not affect its operation.
Moreover, the
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1994 (1) SA p256
 Howard J added the following observation of his own (at 171B­F): I
'I can find no fault with that reasoning, provided that the "vice" is understood as meaning something in the nature of an essential error which vitiates consent
and renders the contract void ab initio. Subject to that qualification, there seems to be no legal or practical difficulty in taking the argument to its logical
conclusion, namely that the parties to a contract can never validly agree, in terms of the contract, that such J "vices of consent" will not affect its operation.
Moreover, the

1994 (1) SA p256

FARLAM AJ
A argument is supported by authority. In Maritz v Pratley (supra) the Court held that an auction sale was void by reason of an error in corpore, and it
apparently rejected the seller's contention that the conditions of sale (requiring purchasers to acquaint themselves with the merx and making the sale voetstoots)
precluded the purchaser from relying upon that mistake. The following dictum of Viscount Simon LC in Heyman v Darwins Ltd [1942] AC 356 at 366 is also
relevant:
B "If the dispute is as to whether the contract which contains the clause has ever been entered into at all, that issue cannot go to arbitration under the clause,
for the party who denies that he has ever entered into the contract is thereby denying that he has ever joined in the submission. Similarly, if one party to the
alleged contract is contending that it is void ab initio (because, for example, the making C of such a contract is illegal), the arbitration clause cannot operate, for
on this view the clause itself is void."
The passage in which this dictum occurs was cited with approval by the Appellate Division in Scriven Bros v Rhodesian Hides & Produce Co Ltd and Others 1943
AD 393 at 400. Although the dictum has reference to the scope of an arbitration clause in a contract, the second sentence thereof is applicable to, and in my view
decisive of, the point which is under consideration now.' D

Mr Sholto­Douglas submitted that there was no error in corpore in this case because both parties intended the property known as 'portion 1 of
the Farm 715 Cape Road in extent 8 568 metres situate on Ottery Varkensvlei, Philippi' to be the subject­matter of the contract of sale and that
respondent's error related to the situation of that property. He contended E further that any evidence from respondent that he intended to
purchase some property other than the one described in the written consent was inadmissible as being in conflict with the parol evidence rule. I
cannot agree that the parol evidence rules apply in this case. Evidence may be adduced to prove that a transaction embodied in a document is
void for F mistake: see Munnik and Munnik v Sydney Clow & Co Ltd 1965 (4) SA 312 (T). It is clear in my view from the evidence adduced by
respondent, which the magistrate correctly accepted, that he intended to buy the property which is next to No 11 Ottery Varkensvlei Road,
Philippi, which belonged to Mr Boer (property A) and not property B. In Trollip v Jordaan (supra) on the other hand, the buyer at all times
intended to buy the farm described in G the deed of sale, his error, on the majority view, did not relate to the identity of the farm but its
qualities. It follows that respondent's error was an error in corpore and on the authority of Digest 18.1.9 pr the agreement was void, provided,
of course, that his error was justus, a point with which I shall deal presently. I am accordingly of the view that H appellant's attempt to invoke
clause 16 of the purported agreement does not assist him and his application to amend his notice of appeal should be dismissed with costs.
The next question to be considered is whether respondent's error can be said to be a justus error rendering the purported agreement void.
Before the legal position can be considered it is necessary to be clear as to the I facts to which the law is to be applied. As I have already
stated, the magistrate found that respondent was not present on the day of the auction when Mr Boer told Mr Radowsky that the property he
was proposing to auction belonged to him, Mr Boer, and when Mr Radowsky made the announcement to which I have referred above and that
what Mr Radowsky did J the next day, when respondent made the offer to purchase which appellant

1994 (1) SA p257

FARLAM AJ
A accepted, was not enough to rectify the mistake. I am satisfied that the magistrate's findings in this regard were correct as there was
abundant evidence on the record to justify them.
The law to be applied in a case such as this was set out by Fagan CJ in George v Fairmead (Pty) Ltd 1958 (2) SA 465 (A) at 471A­D:
B 'When can an error be said to be justus for the purpose of entitling a man to repudiate his apparent assent to a contractual term? As I read the decisions,
our Courts, in applying the test, have taken into account the fact that there is another party involved and have considered his position. They have, in effect, said:
Has the first party ­ the one who is trying to resile ­ been to blame in the sense that by his conduct he has C led the other party, as a reasonable man, to believe
that he was binding himself? (Vide Logan v Beit 7 SC 197; I Pieters & Company v Salomon 1911 AD 121, esp at 130, 137; Van Ryn Wine and Spirit Company v
Chandos Bar 1928 TPD 417, esp at 422, 423, 424; Hodgson Bros v South African Railways 1928 CPD 257 at 261.) If his mistake is due to a misrepresentation,
whether innocent or fraudulent, by the other party, then, of course, it is the second party who is to blame and the first party is not bound.' D

This passage was considered by Harms AJA (with whom Joubert JA and Botha JA concurred) in Sonap Petroleum (SA) (Pty) Ltd (formerly known
as Sonarep (SA) (Pty) Ltd) v Pappadogianis 1992 (3) SA 234 (A), in which case it was stated (at 239I­240B) that
'the decisive question in a case like the present is this: did the party E whose actual intention did not conform to the common intention expressed lead the
other party to believe that his declared intention represented his actual intention? . . . To answer this question, a three­fold enquiry is usually necessary, namely,
firstly, was there a misrepresentation as to one party's intention; secondly, who made that representation; and, thirdly, was the other party misled thereby? . . .
The last question postulates two possibilities: was he actually misled and would a reasonable man have been misled?' F

In the Sonap case the mistake of the party 'whose actual intention did not conform to the common intention expressed' was not due to a
misrepresentation by the other party or his agent. In that respect the present case is distinguishable from the Sonap decision. The latter case
G is nevertheless of assistance in the present context because of its ratio, which appears from the following passage in the judgment (at 240J­
241A):
'In the present case the appellant represented to the respondent that his intention was to reduce the period of the lease. One has then to determine whether
the misrepresentation had any effect, ie whether the respondent H was misled thereby. If he realised (or should have realised as a reasonable man) that there
was a real possibility of a mistake in the offer, he would have had a duty to speak and to enquire whether the expressed offer was the intended offer. Only
thereafter could he accept.'

Later in the judgment (at 241D) the learned Judge said:

I '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 depend on the
facts of each case.'

At 242B Harms AJA stated his conclusion as follows:

'. . . as a matter of probabilities, the respondent was not misled by the appellant to believe that it was its intention to amend the period, but, J on the contrary,
...

1994 (1) SA p258

FARLAM AJ
A he was alive to the real possibility of a mistake and . . . he had, in the circumstances, a duty to speak and to enquire. He did not but decided to snatch the
bargain. That he could not do. There was, therefore, no consensus, actual or imputed, on this issue . . . . This conclusion makes it unnecessary to consider
whether the respondent, objectively speaking, as a reasonable man, should have appreciated the real possibility of a unilateral mistake.'

B In the present case respondent's mistake was due to a misrepresentation by the appellant's agent which is attributable to him (see Allen v
Sixteen Stirling Investments (Pty) Ltd (supra at 169E)). He cannot, therefore, say that as a reasonable man he believed that respondent had
made an offer to purchase property B, unless he had removed the effect of the misrepresentation which had been made by telling respondent
that the C property for sale was property B and not property A. This follows from an application of the test set forth by Fagan CJ in George v
Fairmead (Pty) Ltd (supra at 471D).
Furthermore, on the facts of this case, appellant should (through his D agent, Mr Radowsky, who not only received the offer but conducted all
the negotiations on behalf of his principal) have realised that there was a real possibility of a mistake on the part of respondent and he should
either have enquired whether respondent really intended to purchase property B, rather than property A, or made it clear to him that it was
property B and not property A which was for sale. Mr Radowsky conceded E that there was a possibility of an error and said that he pointed out
the position of the property on the street map 'because I wanted to make sure that he wasn't making an error'. The magistrate found, and I
agree with him, that what Radowsky did was not enough to remove the error which had been brought about by his misleading advertisement
and the fact that he F held the auction at property A. It follows, in my view, that respondent's error was justus and that the purported
agreement was void.
In the circumstances both the appeal and the application to amend the plea should, in my view, be dismissed with costs.
Friedman JP concurred. G
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Appellant's Attorneys: Minde, Schapiro & Smith, Bellville. Respondent's Attorneys: Herold, Gie & Broadhead, Cape Town.
 and the fact that he F held the auction at property A. It follows, in my view, that respondent's error was justus and that the purported
agreement was void.
In the circumstances both the appeal and the application to amend the plea should, in my view, be dismissed with costs.
Friedman JP concurred. G

Appellant's Attorneys: Minde, Schapiro & Smith, Bellville. Respondent's Attorneys: Herold, Gie & Broadhead, Cape Town.

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