About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2016
>>
[2016] ZAGPJHC 180
|
|
Absa Bank Limited v Amien and Others (24878/2012) [2016] ZAGPJHC 180 (24 March 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
Number: 24878/2012
DATE:
24 MARCH 2016
ABSA
BANK
LIMITED
..............................................................................
APPLICANT/PLAINTIFF
And
AMIEN,
NHAZLEE
..........................................................................................
FIRST
RESPONDENT
HARRISON,
ROWAN
..................................................................................
SECOND
RESPONDENT
MEYER,
GEORGE
..........................................................................................
THIRD
RESPONDENT
THE
REGISTRAR OF DEED,
JOHANNESBURG
.................................
FOURTH
RESPONDENT
THE
SHERIFF OF THE COURT
FOR
THE DISTRICT OF
ROODEPOORT
...................................................
FIRTH
RESPONDENT
CITY
OF
JOHANNESBURG
..........................................................................
SIXTH
RESPONDENT
JUDGMENT
MODIBA
J:
[1]
The applicant has applied for an order declaring a notarial tie
agreement that ties two properties owned by the first respondent
to
be of no force of effect. The notarial tie agreement is registered
against the properties as a condition of title. As a result,
the two
properties are held under one title deed, being title deed number:
T..........
[2]
In the title deed, the properties are respectively described as
HOLDING 3….. A…… A……. H……
REGISTRATION DIVISION I.Q., THE PROVINCE OF GAUTENG IN EXTENT 2,59209
(TWO COMMA FIVE NINE TWO ZERO) HECTERS (referred to herein
as ‘the
first property’) FIRST TRANSFERRED BY DEED OF TRANSFER NO.T
1…….. WITH DIAGRAM ANNEXED THERETO
AND HELD BY DEED OF
TRANSFER NO T1…… and PORTION 1 OF HOLDING 3…..
A…… A…….. H…….
REGISTRATION
DIVISION I.Q., THE PROVINCE OF GAUTENG IN EXTENT 2,192 (TWO THOUSAND
ONE HUNDRED AND NINETY TWO) SQUARE METERS; FIRST
TRANSFERRED BY DEED
OF TRANSFER NO 5……. WITH DIAGRAM SG NO A 7…..
ANNEXED THERETO (referred to herein as ‘the
second property’).
[3]
The importance of untying these two properties for the applicant is
that it has sold them in execution to separate purchasers
to recover
payment of a judgment debt owed to it by the first respondent. The
applicant was hamstrung to approach this court for
the relief prayed
for in the notice of motion because the Registrar of Deeds would not
effect separate transfer of registration
of the two properties
without an order of court, despite the applicant’s contention
that the notarial tie agreement has lapsed.
[4]
It is common cause that prior to the promulgation of the Abolition of
Certain Title Conditions Act 43 of 1999 (‘ACTC Act’),
a
notarial tie agreement could only be cancelled with the consent of
the Administrator of the Transvaal. This official has been
superseded
by the MEC of the Gauteng Provincial Government, Department of
Development Planning and Local Government (‘the
MEC’).
[1]
The applicant contends that the ACTC Act, which came into effect on
24 November 1999, has rendered the notarial tie agreement to
be of no
force or effect. The ACTC Act was promulgated to waive the consent of
the MEC required to cancel certain conditions of
title. The notarial
tie agreement in dispute falls within the scope of the ACTC Act. The
applicant has premised its contention
on section 1 read with the
preamble to the ACTC Act.
[2]
[5]
The first respondent vehemently disagrees with the applicant. She
contends that section 2 of the ACTC Act excludes the notarial
tie
agreement from the scope of the ACTC Act. Therefore the relief sought
by the applicant is misplaced. The consent of the MEC
is still
required to cancel the notarial tie agreement in dispute. In terms of
section 2 (a), (b) and (c) of the ACTC Act, the
consent of the MEC is
still required if the condition of title sought to be cancelled:
“
(a)
is imposed under any town planning scheme;
(b)
is imposed under a land use control mechanism having the effect of a
town planning scheme;
(c)
affects rights to minerals.”
[6]
The Registrar of Deeds (the Registrar) has filed a report, expressing
his constraint by the notarial tie agreement to transfer
the two
properties as separate lots to separate owners. Such a transfer will
result in a contravention of section 5 of the Agricultural
Holdings
(Transvaal) Registration Act 22 of 1919 (ACT 22 of 1919) in that the
two properties were tied to allow them to be registered
as a single
property and as such qualify as an agricultural holding as defined in
that Act.
[3]
If transferred
separately, the second property will lose its qualification as an
agricultural holding because it measures less
than one Morgan in
extent. However, the Registrar did not object to the relief sought by
the applicant.
[7]
Rather than approach the MEC for consent to cancel the notarial tie
agreement, the applicant opted to approach this court for
an order
declaring the notarial tie agreement to be of no force and effect.
[8]
The legal question to be determined between the parties is whether
the ACTC Act applies to the relevant notarial tie agreement.
If I
find that it does not apply, then the applicant is not entitled to
the relief sought.
[9]
Before I consider the merits of this application, it is apposite that
I first pay attention to three preliminary issues that
arose between
the parties, one raised by the first respondent in her answering
affidavit, one raised by the applicant at the commencement
of the
hearing and the last one raised by Counsel of the applicant when he
argued in reply. These issues are as follows:
9.1
whether the deponent to the applicant’s founding affidavit,
Kyle Vilakazi (Vilakazi) lacks the requisite legal authority
and
personal knowledge of the facts set out in the founding affidavit. If
so, the first respondent contends that the application
stands to be
dismissed.
9.2
an opposed interlocutory application by the applicant to amend
paragraphs 1 and 2.1 of the notice of motion.
9.3
whether the first respondent may rely on legislation for which no
facts laying the basis for such reliance have been set out
in her
answering affidavit. If not, the applicant contends that such facts
stand to be ignored.
[10]
The first respondent contends that Vilakazi lacks the requisite
authority and personal knowledge to depose to the applicant’s
affidavits. In the affidavits deposed to by Vilakazi, she alleges
that she is duly authorised by the applicant to depose to affidavits
on behalf of the applicant and that she has personal knowledge of the
facts contained therein. The first respondent denies this.
She
contends that Vilakazi was never involved with her matter. In
Rees
and Another v Investec Bank Limited
[4]
,
the Supreme Court of Appeal held that ‘
[a]
s
stated in Maharaj v Barclays National Bank Ltd
1976 (1) SA 418
(A),
“undue formalism in procedural matters is always to be
eschewed” and must give way to commercial pragmatism. At
the
end of the day, whether or not to grant summary judgment is a
fact-based enquiry. Many summary judgment applications are brought
by
financial institutions and large corporations. First-hand knowledge
of every fact cannot and should not be required of the official
who
deposes to the affidavit on behalf of such financial institutions and
large corporations. To insist on first-hand knowledge
is not
consistent with the principles espoused in Maharaj
.’
Furthermore,
notwithstanding the dictum in
Rees
and in
Maharaj,
for the first respondent to raise this issue in an application such
as this were the facts between the parties are common cause
and the
issue to be decided is a question of law is inconsequential. In light
of the above dictum, the point
in
limine
raised by the first respondent stands to be dismissed for lack of
merit.
[11]
At the commencement of the hearing, Counsel for the applicant sought
from the bar two amendments to the notice of motion and
handed up a
draft order reflecting these amendments. The first amendment seeks to
amend prayer 1 of the notice of motion which
reads: “
That
the notarial tie agreement K223/1993S be of no force or effect”
to be amended to read: “
the
notarial tie agreement K223/1993S is cancelled.”
The second amendment seeks to correct the description of the first
property in prayer 2 of the notice motion, where the property
is
incorrectly described as “
Holding
33 Amorosa Agricultural Holdings.”
[12]
The first respondent objected to the first amendment on the basis
that the case that the applicant brought her to court to
meet is
premised on the order as set out in paragraph 1 of the notice of
motion. A prayer for the cancellation of the notarial
tie agreement
is a completely different case not borne from the applicant’s
papers.
[13]
It is trite that a litigant may amend his or her pleadings at any
stage of the proceedings before judgment (Rule 28(10)). A
court
hearing an application for an amendment has the discretion to grant
it. Such discretion must be exercised judiciously. The
general
approach to amendments is that they should be allowed unless the
application is made in bad faith and would cause an injustice
which
cannot be compensated by an order for costs.
[5]
I agree with the first respondent that the first amendment is not
borne out of the applicant’s case as set out in the founding
affidavit. For that reason if granted, the amendment would cause an
injustice to the first respondent which cannot be compensated
with an
order for costs. Therefore the application for the amendment of
prayer 1 stands to fail.
[14]
There is no opposition to the second amendment. It merely seeks to
amend an error in the description of the first property.
It is
apparent from the title deed annexed to the applicant’s
founding affidavit that the correct description of this property
is
“Holding 32 Amorosa Agricultural Holdings”. Allowing this
amendment will not cause the respondents any injustice
that cannot be
remedied by a cost order. Therefore this amendment stands to succeed.
[15]
The determination of the third preliminary issue requires an
examination of the first respondent’s opposition as set
out in
her answering affidavit and as argued by her Counsel. In her
answering affidavit, the first respondent contends that the
notarial
tie agreement is an agreement between the first respondent and the
Gauteng Government. It cannot be ignored by simply
registering the
two properties separately. Furthermore, registering the two
properties separately will result in the second property
losing its
qualification as an agricultural holding. She made no reference to
any legislation in the answering affidavit. In argument
her Counsel
submitted that the MECs consent to the separate registration of these
two properties was not waived by section 1 of
the ACTC Act. To
sustain this argument, her Counsel relied in his heads of argument
and in oral argument on section 1 and 2 of
the ACTC and on other
provisions contained in various other legislation such as the
Subdivision of Agricultural Land Act 70 of
1970 (Act 70 of 1970) and
the Agricultural Holdings (Transvaal) Registration Act Amendment Act
19 of 1929 (Act 70 of 1929).
[16]
It is indeed so that no legislation was specifically referred to in
the first respondent’s answering affidavit. However,
facts in
support of the first applicant’s reliance on sections 1 and 2
of the ACTC Act clearly appear from her answering
affidavit.
Reference to Act 70 of 1970 and Act 19 of 1929 made in argument by
Counsel for the first respondent was made in respect
of secondary
submissions in support of her contention that ACTC Act is not
applicable. Furthermore, the facts in question are common
cause
because they relate to the conditions of title which clearly appear
ex facie
the title deed. Therefore, the objection to the first respondent’s
reliance on the relevant legislation lacks merit. Heed
stands to be
given to the legislative provisions sought to be relied on by the
first respondent.
[17]
I now turn to deal with the merits of the application.
[18]
The following conditions of title that appear
ex
facie
the title deed are relevant to
the dispute between the parties:
“
B.
All rights to minerals and precious stones together with all rights
which may be or become vested in the freehold owner to share
in the
proceeds which may accrue to the state from the disposal of the
undermining rights of the land including the share of claim
license
moneys and any share of rentals or profits which may accrue to any
owner under any mining lease granted in respect
of the land,
covered by the agricultural holdings, and the like, are reserved in
favour of JOHANNES DU TOIT (born on the 6
th
September
1882) as will more fully appear from Certificate of Rights to
Minerals No. 195/1959 RM issued in respect of Portion 244
(a portion
of portion 13 of the North Western Portion) of the said farm, mow
known as AMOROSA AGRICULTURAL HOLDINGS.
C
(a) The holding is held as an agricultural holding and it may be used
only for the purposes contemplated by the definition of
that term
contained in the Agricultural Holdings (Transvaal) Registration Act
1919. That definition reads:-
“
Agricultural
holding shall mean a portion of land not less than 8565 square meters
in extent used solely or mainly for the purpose
of agriculture or
horticulture or for the breeding or keeping domestic animals, poultry
or bees.”
…
.
(c)
(i) The holding may not be subdivided nor may any portion of it be
sold, leased or disposed of in any way without obtaining
the written
approval from the Board.
(ii)
The holding shall not be sold to or held jointly by two or more
persons.
…
.
D.
By virtue of Notarial Tie Agreement K223/1993S dated 4
th
November 1992 the within mentioned property and portion 1 of Holding
33 Amorosa Agricultural Holdings shall be tied together and
regarded
as one property for all intents and purposes and that none of the
constituent properties shall, on its own, be sold, exchanged,
hypothecated or alienated or transferred in any way otherwise than
jointly to the same transferee or mortgagee without the written
consent of Administrator of Transvaal first being obtained and the
said Administrator shall have the absolute discretion to grant
or
withhold such consent as will more fully appear from the
abovementioned Notarial Tie Agreement.”
[19]
The two properties are evidently subject to conditions that fall
within the purview of section 2 (a) and (b) of the ACTC Act.
They are
registered as agricultural holdings and therefore subject to a
condition of title imposed under a town planning scheme.
[6]
They are subject to a title imposed under a land use control
mechanism having the effect of a town planning scheme in that they
are registered as agricultural holdings. They are also subject to a
condition of title that affects mineral rights, bringing them
into
the purview of section 2(c). The contentions by Counsel for the
applicant that
de
facto
,
the properties do not comply with the pertinent requirements for the
relevant conditions of title for example, that the properties
are not
solely used for agricultural purposes which is a requirement for
qualification as an agricultural holding and that the
condition
regarding mineral rights may have been superseded by the Minerals and
Petroleum Resources Development (MPRD) Act 28 of
2002 are in my view
not cogent.
[7]
The MPRD Act came
into operation on 30 April 2004. It may be that
de
facto,
the properties no longer qualify for classification as agricultural
holdings and that the mineral rights condition of title may
have been
superseded by the MPRD Act. However, the existence of these
conditions of title cannot be ignored. As matters stand,
despite how
they are currently being used, the two properties are not registered
as erven. Therefore their registration as agricultural
holdings
remains legally valid. The condition of title in respect of mineral
rights may have well been affected by promulgation
of the MPRD Act.
The MPRD Act has merely changed the status
quo
in respect of the holder of mineral rights and not the existence of
the right. The notarial tie agreement was registered
in 1993.
The properties were transferred to the first respondent as a single
property on 16 August 2007 with the minerals rights
condition of
title, despite the enactment of MPRD Act. These contentions by
Counsel for the applicant may be factors for consideration
by the MEC
when faced with an application for the cancellation of the notarial
tie deed. The factors are of no value in persuading
this court to
declare the notarial tie agreement to be of no force or effect.
[20]
This court is not best placed to usurp the powers of the MEC in
circumstances where the applicant has failed to follow the
applicable
statutory cancellation procedure and where the MEC is not cited as a
party to the application. As argued by Counsel
for the first
respondent and as opined by the Registrar of Deeds, untying the two
properties will result in the second property
becoming less than 1
Morgan and therefore losing its qualification as an agricultural
holding. Furthermore, the first property
is subject to a praedial
servitude in that it is subject to a proclamation for the building of
road PW5 in the future. It is unknown
what effect will untying the
two properties have on this servitude. In addition to these town
planning factors, there may well
exist other factors to be brought to
bear when considering whether conditions of title that fall within
the purview of section
2 should be cancelled. This court may not be
aware of such additional factors and is certainly not placed to
consider them. This
could be the reason why the legislature excluded
such conditions from the scope of the ACTC Act.
[21]
The applicant has not succeeded in persuading this court that there
is a legal basis to declare that the notarial tie agreement
K223/1993S is of no force or effect as set out in prayer 1 of its
notice of motion. The statutory cancellation procedure as set
out in
section 6 of the Agricultural Holdings Act 22 of 1919 (Act 22 of
1919) ought to be followed to cancel the notarial tie agreement.
[22]
In the premises, I make the following order:
ORDER
1.
Prayer 2.1 of the notice of motion is
amended to read as follows:
“
Holding
32 AMOROSA AGRICULTURAL HOLDINGS REGISTRATION DIVISION I.Q to and in
the name of the Second Defendant.
2.
The application stands to be dismissed with
costs.
L
MODIBA
JUDGE
OF THE HIGH COURT
APPEARENCES
Counsel
for the Appellant: WB Pye
Instructed
by: Tim Du Toit & Co Inc.
Counsel
for the Respondent: Clayton T Vetter
Instructed
by: Y Johnson Incorporated
Date
of appearance: 01 March 2016
Date
of Judgment: 24 March 2016
[1]
In
terms of section 6 of the Agricultural Holdings (Transvaal)
Registration Act 22 of 1919, conditions of title contained in a
title deed may only be cancelled with the consent of the
Administrator of Transvaal. According to the decision of the Supreme
Court of Appeal in
Gerber
and others v MEC of the Gauteng Provincial Government, Department of
Development Planning and Local Government and Another
[2002]
4 All SA 518
(SCA) at par 2, the MEC is the successor to the
administrator of Transvaal.
[2]
"PREAMBLE
“
Preamble
To
provide for the abolition of certain conditions in terms which the
consent or permission of the holder of an office under the
Republic,
the former Union of South Africa or any dominium, colony or republic
which preceded the former Union of South Africa,
is required for the
alienation or transfer of immovable property from one person to
another; and to provide for matters connected
therewith.
Section
1 Abolition of conditions
(1)
Notwithstanding anything to the contrary contained in any law, but
subject to section 2, any condition registered against
any title
before the commencement of this Act, whereby the consent or
permission of the holder of an office under the Republic,
the former
Union of South Africa or any dominium, colony or republic which
preceded the former Union of South Africa is required
for the
alienation or transfer of immovable property from one person to
another, is hereby abolished.”
[3]
See
the definition of agricultural holding in the quotation in paragraph
18 below under C (a).
[4]
Unreported judgment (330/13)
[2014] ZASCA 38
(28 March 2014) at para
15. See also
Maharaj
v Barclays National Bank Ltd
1976 (1) SA 418
(A); and
Stamford
Sales & Distribution v Metraclark
(676/2013)
[2014] ZASCA 79
(29 May 2014)
[5]
See
Moolman
v Estate Moolman
1927 CPD 27
at page 29.
[6]
Act
70 of 1970 defines ‘
scheme
’
as “a town planning scheme prepared in terms of a provincial
ordinance by an authority referred to in paragraph
(a) of the
definition of ‘agricultural land’, envisaging the
co-ordinated and harmonious development of the area
to which such
scheme relates. The same Act defines ‘
agricultural
land
’
as any land, except:
(a)
land situated in the area of jurisdiction
of a municipal council, city council, town council, village council,
village management
board, village management council, local board,
health board or health committee, and land forming part of, in the
province of
the Cape of Good Hope, a local area established under
section 6 (1) (i) of the Divisional Councils Ordinance, 1952
(Ordinance
No. 15 of 1952 of that province), and, in the province of
Natal, a development area as defined in section 1 of the Development
and Services Board Ordinance, 1941 (Ordinance No. 20 of 1941 of the
last-mentioned province), and in the province of the Transvaal,
an
area in respect of which a local area committee has been established
under section 21 (1) of the Transvaal Board for the Development
of
Peri-Urban Areas Ordinance, 1943 (Ordinance No. 20 of 1943 of the
Transvaal), but excluding any such land declared by the
Minister
after consultation with the executive committee concerned and by
notice in the Gazette to be agricultural land for the
purposes of
this Act;
(b)
land—
(i)
which forms part of any area subdivided in terms of the Agricultural
Holdings (Transvaal) Registration Act, 1919 (Act No.
22 of 1919); or
(ii)
which is a township as defined in section
102 (1) of the Deeds Registries Act, 1937 (Act No. 47 of 1937), but
excluding a private
township as defined in section 1 of the Town
Planning Ordinance, 1949 (Ordinance No. 27 of 1949 of Natal), not
situated in an
area of jurisdiction or a development area referred
to in paragraph (a);
(c)
land of which the State is the owner or
which is held in trust by the State or a Minister for any person;
(f)
land which the Minister after consultation with the executive
committee concerned and by notice in the Gazette excludes from
the
provisions of this Act;
Provided
that land situated in the area of jurisdiction of a transitional
council as defined in section 1 of the Local Government
Transition
Act, 1993 (Act No. 209 of 1993), which immediately prior to the
first election of the members of such transitional
council was
classified as agricultural land, shall remain classified as such.
[7]
Section
3(1) of Act 28 0f 2002 provides that minerals and petroleum
resources are the common heritage of all South Africans and
that the
State is the custodian thereof for the benefit of all South
Africans.