Maart 2013: jaargang 10, nommer 1 - LitNet

LitNet Akademies Jaargang 10 (1), Maart 2013
extrinsic evidence apart from a written agreement. It is submitted that the parol evidence rule
was unknown to Roman-Dutch law and that the reclassification of the rule would therefore
result in the abolition of the rule and the situation where the presentation of any extrinsic
evidence would be allowed in order to ascertain the true intention of the parties. The
conclusion will, however, be made that the principles of legal certainty and continuity would
in all probability prevent a reclassification of the parol evidence rule by the South African
courts.
The second part of the article focuses on a second possibility, namely the modification of the
integration rule in line with the modern application of the rule in English law. At first glance
it seems as if there is no real difference between the current application of the integration rule
in the South African and English legal systems. Both legal systems recognise that extrinsic
evidence of a prior or collateral agreement may be adduced where there hasn’t been a total
integration of the parties’ agreement in the written contract. The South African courts also
recognise, to an extent, the English doctrine of the collateral agreement. There is however
one very important difference between the two legal systems. The South African courts will
allow only the presentation of extrinsic evidence (where of course the existence of a collateral
agreement or collateral agreement which is not integrated in the written contract can be
proven), where this separate agreement is not in contradiction with the terms of the written
agreement. But the English courts do admit this evidence, even though it may contradict the
terms of the written agreement.
It is therefore submitted that the integration rule developed in such a way in English law since
30 May 1961 that the essence of the rule has been watered down to such an extent that it has
currently, for all practical purposes, only symbolic value. This modern approach of English
law stands in stark contrast to the current application of the rule in the South African law of
contract. The conclusion is, however, once again made that the principles of legal certainty
and continuity, as well as the train of thought that, in so far as it is not governed by
legislation, South African law of evidence is “frozen” in the guise which English law of
evidence assumed on 30 May 1961, will stand solidly in the way of a similar development in
South African law to what took place in the English law. It therefore seems that legislation
would be the only workable solution to abolish or modify the parol evidence rule, and more
specifically the integration rule, in the South African law of contract
Keywords Abolish; continuity; collateral agreement; contradicts; development; English law;
extrinsic evidence; frozen; integration rule; law of contract; law of evidence; legal certainty;
legislation; material law; modern application; modify; parol evidence rule; prior agreement;
re-classification; Roman-Dutch law; written contract
110