The South African approach to the rectification of agreements subject to constitutive formalities : one step too many
CITATION: Myburgh, F. 2014. The South African approach to the rectification of agreements subject to constitutive formalities : one step too many? South African Law Journal, 131(4):787-818.
The original publication is available at https://journals.co.za/content/journal/ju_salj
This article examines the South African approach to the rectification of agreements subject to constitutive formal requirements. It focuses on the rule that such an agreement must first comply with formalities ex facie the document recording it, before a court may consider whether the traditional requirements for rectification have been met. In particular, the primary justifications for this rule are assessed: first, a void agreement cannot be rectified and, secondly, ex facie compliance promotes the functions of formalities. An analysis of South African case law reveals not only that these assumptions are questionable, but that the rule is inconsistently applied and leads to the drawing of tenuous distinctions. A brief investigation of both civilian and common-law approaches suggests further that the South African method is based on a misconception of the purpose of rectification: it conflates the correction of the document recording the agreement with the enforcement of that agreement once it is corrected. This leads to the conclusion that the requirement of ex facie compliance should be abolished as a preliminary step and that a South African court should rather consider whether awarding a claim for rectification would defeat the objects of formalities in general.