In hierdie artikel word die moontlikheid van die herklassifisering van die ekstrinsieke-getuienis-reël, of die moontlike ontwikkeling van die reël deur die Suid-Afrikaanse howe op een lyn met die ontwikkeling daarvan in die Engelse reg, ondersoek. In die eerste gedeelte van die artikel word daar derhalwe gefokus op die moontlikheid van die herklassifisering van die ekstrinsieke-getuienis-reël as synde deel van die materiële of substantiewe reg in teenstelling met die huidige, duidelik verkeerde klassifisering van die reël as deel van die Suid-Afrikaanse bewysreg. Daar word aangevoer dat die ekstrinsieke-getuienis-reël onbekend was aan die Romeins-Hollandse reg en dat die herklassifisering van die reël noodwendig sal meebring dat die Romeins-Hollandse reg, in teenstelling met die Engelse reg, gevolg sal word by die beoordeling van die aanbieding van ekstrinsieke getuienis buite om 'n skriftelike kontrak. In die tweede gedeelte van die artikel word daar op 'n tweede moontlikheid gefokus, naamlik die aanpassing van die integrasiereël op een lyn met die moderne toepassing van die reël in die Engelse reg. Daar word aangevoer dat die integrasiereël in die Engelse reg sodanig ontwikkel het sedert 30 Mei 1961 dat die essensie van die reël vir alle praktiese doeleindes in so 'n mate afgewater is dat dit tans slegs oor simboliese waarde beskik. Hierdie moderne benadering van die Engelse reg staan dan ook in skrille kontras met die huidige toepassing van die reël in die Suid-Afrikaanse kontraktereg. Die gevolgtrekking word egter gemaak dat die beginsels van regsekerheid en kontinuïteit, asook die gedagtegang dat, vir sover dit nie deur wetgewing gereël word nie, ons bewysreg "bevries" is in die gedaante wat die Engelse bewysreg op 30 Mei 1961 aangeneem het, in die pad sal staan van 'n herklassifisering van die reël of 'n soortgelyke ontwikkeling in die Suid-Afrikaanse reg aan dié wat plaasgevind het in die Engelse reg. Dit wil derhalwe lyk of wetgewing die enigste werkbare oplossing bied om die ekstrinsieke-getuienis-reël, en meer spesifiek die integrasiereël, af te skaf of te aan te pas in die Suid-Afrikaanse kontraktereg.
The parol evidence rule represents one of the most problematic legal doctrines in the South African law of evidence. This rule consists of two different components. The first component is known as the integration rule and essentially entails that where an agreement has been reduced to writing, no extrinsic evidence of any prior or collateral agreement may be given to contradict, alter, add to or vary the written terms of the written contract. The second component is known as the interpretation rule, which entails that when the terms of a written contract are clear and unambiguous no evidence may be given to alter such plain meaning. Both rules originated in England and have been distributed from there to the different common law countries as well as South Africa.
In the past there were several proponents that contended for the complete abolition of the parol evidence rule, or at least the component referred to in this article as the integration rule. In 1998 an extensive report was brought out by the South African law commission wherein certain recommendations were made to the minister of justice pertaining to, inter alia, the parol evidence rule, which essentially entailed that the rule should be abolished. But the recommendations by the law commission apparently died a slow death and there has been no attempt since to abolish or modify the rule in the South African legal system.
If it is clear that the rule should be abolished or modified, the question, of course, arises in what way this should be done. Legislation seems to be the logical solution. Legislation is, however, a drastic step which should serve only as a last resort and other, less drastic methods should first be considered. This article therefore focuses on the possibility of the reclassification of the parol evidence rule or the possible development of the integration rule by the South African courts in accordance with the development thereof in the English law.
The first part of the article focuses on the possibility of the reclassification of the parol evidence rule as part of material or substantive law, in contrast with the current, clearly incorrect classification of the rule as part of the South African law of evidence. The position had always been, and still is, that South African material or substantive law (in as far as it had not been amended by legislation), is based on Roman-Dutch law, but that South African formal or procedural law, including the law of evidence, is based on English law. The South African courts had, as far back as the early 20th century, already classified the parol evidence rule as part of formal or procedural law and therefore held that the application of the rule was governed by English law. There seems to be general consensus, however, between writers and courts alike that the parol evidence rule actually forms part of material or substantive law and not formal or procedural law. A reclassification by the South African courts of the parol evidence rule as part of material law would, therefore, automatically bring about the situation where Roman-Dutch law, as opposed to English law, would govern the presentation of 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