Introduction 

Rectification entails the re-wording of a contract to conform to the common intention of the  contracting parties, due to an error or mistake. The only actual amendment or rectification that  takes place is of the written instrument itself to be in accordance with the underlying consensus,  after clarity is established regarding the parties’ intention. Such clarity is established through  interpretation. The mistake does not substantively relate to the underlying agreement but in the  conclusion of the written document itself. It is therefore relevant to explore the meaning of  ‘mistake’ concerning rectification.

Mistake 

Judge Knoll found in Brits v Van Heerden that it was evident that a mistake of some sort had to  be present concerning rectification. It was elaborated further that “the mistake does not have to  relate to the writing itself, but might relate to the consequences thereof. The mistake may be one  common to both parties; the mistake may be that of only one party; the mistake may be induced  by misrepresentation or fraud. But there must be a mistake.” Furthermore, that “the crux of the  matter is that the mistake, be it a misunderstanding of fact or law or be it an incorrect drafting of  the document, must have the effect of the written memorial not correctly reflecting the parties’ true  agreement.” It is therefore clear that a mistake as to the written agreement for rectification to  prevail shall depend on the circumstances of the case and where it would amount to the  underlying agreement not being accurately endorsed. What is important when it comes to  rectification is to ascertain the true “common continuing intention of the parties”, as it existed at  the time when the agreement was reduced to writing. Such intention is ascertained through  interpretation, which must now be the modern approach as developed by case law.

Modern approach to interpretation 

Case law has radically developed concerning the interpretation of contracts, which has led to a  significant ‘trimming’ of the parol evidence rule. The parol evidence rule dictates that the written  contract expressly constitutes the consensus reached between the parties and that extrinsic  evidence is not permitted to prove otherwise. The modern interpretational approach to contracts  or other written instruments has been well settled in a line of cases from the Supreme Court of  Appeal, which were all taken into account in the recent matter of V vs. V in comprehensively  confirming the approach. This is that an “integrated interpretation process” now reigns, by considering the relevant factual matrix and language of provisions within the context of the  document as a whole. Although interpretational principles have evolved over the years, the parol  evidence rule is still part of our law and that extrinsic evidence (factual matrix) can be taken into  account to contextualise the underlying agreement. The agreement may not be amended,  modified or contrary to the signatories’ intention, unless the written contract is sought to be  changed through rectification to conform to the parties underlying agreement.

Conclusion 

Although a mistake must be present for rectification, how the mistake occurred may be relevant  in today’s commercial world in view of the modern approach to interpretation. This is in view of  the relevant factual matrix that can be considered as well that existed at the time of the conclusion  of the contract and the parol evidence rule being of limited application currently.