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[2019] ZAGPJHC 313
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Frantrade Nineteen (Pty) Limited and Others Realty Corporation of South Africa Limited and Others (20400/2018) [2019] ZAGPJHC 313 (22 February 2019)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 20400/2018
In
the matter between:
FRANTRADE
NINETEEN (PTY) LIMITED
(REGISTRATION
NO: 1998/008857/07) FIRST
APPLICANT
JOHN
JOSEPH
WELCH SECOND
APPLICANT
(ID
NO: […])
GEOFFREY
CORNELIS METER THIRD
APPLICANT
(ID
NO: […])
BEVERLEY
ANN DUNN FOURTH
APPLICANT
(ID
NO: […])
AND
REALTY
CORPORATION OF SOUTH
AFRICALIMITED
(REGISTRATION NO:
1906/002531/06) FIRST
RESPONDENT
EVAN
PAUL
DRYEN SECOND
RESPONDENT
(ID
NO: […])
CANDICE
LYNN DRYDEN THIRD
RESPONDENT
(ID
N0: […])
GARETH
DRYDEN FOURTH
RESPONDENT
((ID
NO: […])
THE
MASTER OF THE HIGH COURT FIFTH
RESPONDENT
JOHANNESBURG
THE
REGISTRAR OF DEEDS SIXTH
RESPONDENT
PRETORIA
MIDVAAL
MUNICIAPALITY SEVENTH
RESPONDENT
JUDGMENT
TWALA
J
[1]
This is an opposed application wherein the applicants sought an order
for the removal of a restrictive condition on the title
deed number
T121406/98 and other ancillary relief.
[2]
It is appropriate to note that only the first respondent filed its
opposition to this application. However, for the sake of
convenience,
I shall refer to the parties as the respondent and applicant.
[3]
At the commencement of the hearing, the respondent brought an
application for condonation for the late filing of its heads of
argument which application was not opposed by the applicant. There
being no prejudice to be suffered by the applicants or any other
litigant, the application for condonation was granted.
[4]
Further, the respondent brought an application for the striking out
of certain paragraphs in the founding papers of the applicant
for
either being irrelevant or being in admissible hearsay evidence. This
application was an addition to the point in limine raised
by the
respondent in its answering affidavit and counsel for the respondent
proposed that it be dealt with together with the main
application.
[5]
I am unable to disagree with counsel for the respondent in this
regard. Although the paragraphs mentioned in the notice of
application gave some historical background, albeit incorrect as
contended by the respondent, they are irrelevant to the determination
of the issues at hand. It is my respectful view therefore that the
paragraphs referred to in the application to strike out are
irrelevant and inadmissible as hearsay evidence and falls to be
struck from the record.
[6]
It is apparent from the record that in 1918 the respondent acquired
ownership of the property known as the Remaining Extent
of Portion 18
of the farm Faraosfontein No. 372, Registration Division IQ Province
of Gauteng, Measuring 70,1893 hectares (“the
property”).
In 1934 the respondent sold the property to Ohenimuri Golf and
Country Club and caused a restrictive condition
to be registered
against the title in the following terms:
“
SPECIALLY
subject to the condition that the property hereby transferred may
only be used for the purpose of a Golf and Country Club
and may not
be sub-divided and no portion or the whole of the said property may
be sold for purposes other than a Golf and Country
Club without the
consent in writing of the Corporation first had and obtained”
(“the
restrictive condition”).
[7]
In all subsequent transfers of the property, the restrictive
condition has been carried forward. In 1998 the applicant acquired
ownership of the property through a sale in execution and is
presently holding it under title deed number T121406/1998 and the
restrictive condition is extant.
[8]
It is submitted by counsel for the applicant that the restrictive
condition is a personal servitude as opposed to a praedial
servitude.
The restrictive condition is a burden on the property for the benefit
of the respondent and not another property. Therefor
the respondent,
so it is contended, have the discretion to consent to the removal or
cancellation of the restrictive condition
which discretion should be
exercised reasonable.
[9]
Counsel for the applicant submitted further that the circumstances
have changed and the restrictive condition makes the property
useless
since the community in the area have no interest in a golf course and
country club. The existing club house has been raised
by fire
recently. The restrictive condition is impossible to carry into
effect and the respondent is, so the argument goes, unreasonable
and
there is no justification in refusing to grant its consent to remove
or cancel the restrictive condition.
[10]
Counsel for the applicant contended further that the applicant is
approaching the Court as beneficiary by virtue of being holder
in
title in the property and having a beneficial interest therein.
The property is, so it is contended, stripped off of its
economic
value and holds no benefit to the owner neither the community.
[11]
It is contended by counsel for the respondent that the applicants
lack the necessary locu standi to bring this application
since it is
not a beneficiary as defined in the Immovable Property (Removal or
Modification of Restrictions) Act, 94 of 1965 (the
Act). The
applicant is a holder in title in the property and not beneficiary in
terms of a will or other instrument as defined
in the Act. The
restrictive condition was not imposed by will or other instrument, so
it argued, but was a condition created in
an agreement of sale
between the respondent and the trustees of the Ohenimuri Golf and
Country Club who bought the property in
1934 which condition has
since been carried forward in all subsequent transfers of the
property. It is contended further
that there is no allegation
in the founding papers that the applicant is a beneficiary and a
title deed cannot be regarded as another
instrument as defined in the
Act.
[12]
It is submitted further by counsel for the respondent that the
doctrine of arbitrium boni viri does not find application
in
this case for the servitude confers a real right on the respondent
which right gives the respondents unfettered discretion on
the
servitude. Therefore, as the argument goes, the refusal of the
respondent to furnish consent to the removal of the restrictive
condition, irrespective for the reasons for such refusal, is fatal to
the relief claimed by the applicant. The applicant
bought the
property with full knowledge of the restrictive condition and cannot
expect the rights of the respondent to be extinguished
without its
consent.
[13]
It is trite that once a condition or a servitude is registered either
notarial or as a condition of title in the title deed
by the
Registrar of Deeds, it bestows a real right to the person in whose
favour it is registered. Further, it is trite that a
real right is
absolute in the sense that it prevails against the whole world.
[14]
Silberberg and Schoeman in the Law of Property, 5
th
Edition
on page 51 state the following:
“
The holder
of a servitude such as a right of way in relation to a piece of land
is entitled to enforce such servitude, being a limited
real right,
not only against the original grantor but also, for the duration of
the right, against all successors in title and
creditors,
irrespective of whether they had actual knowledge of the existence of
the servitude.
[15]
On page 338, the author continued and defined the personal servitude
as:
“
a
servitude established in favour of
particular
persons over things and may confer a variety of benefits on their
holders. They are real rights; however they cannot
be transferred.
They may be constituted for a fixed term of years or be granted until
the happening of a future event or for the
lifetime of the
beneficiary, but not beyond his or her death. For this reason,
mineral rights, which were in many respects similar
to personal
servitudes but transferable from one person to another, were
generally described as either quasi-servitudes or real
rights sui
generis. If the usufructuary is a legal person, the usufruct is
terminated upon dissolution of the legal person or the
lapse of 100
years.”
[16]
The
Deeds Registries Act, 47 of 1937
as amended provides as follows:
Section 3(1)
The registrar
shall, subject to the provisions of this Act -
(a)
…………………………
.
(o)
register any
servitude, whether personal or preadial, and record the modification
or extinction of any registered servitude;
Section 63
Restriction on
registration of rights in immovable property –
(1)
No
deed, or condition in a deed, purporting to create or embodying any
personal right, and no condition which does not restrict
the exercise
of any right of ownership in respect of immovable property, shall be
capable of registration:
Provided that a
deed containing such a condition as aforesaid may be registered if,
in the opinion of the registrar, such condition
is complementary or
otherwise ancillary to a registrable condition or right contained or
conferred in such deed.
Section 102
Definitions
(1)
In
this Act, unless inconsistent with the context –
“
real
right” includes any right which becomes a real right upon
registration;
[17]
In
Exparte Saiga Properties (Pty) Ltd 1997 (4) SA at 716 (ECP)
in
which
Exparte Rovian Trust (Pty) Ltd 1983 (3) SA at
209 was
quoted with approval the Court state the following:
“
It has
long been settled that the High Court has no inherent jurisdiction to
remove, vary or suspend a restrictive condition of
title to land. The
rationale lies in the nature of a restrictive condition which, in its
essence, is a form of contractual stipulation
in terms of which a
transferor of land regulates the exercise of the transferee’s
dominium over the property. The condition
of transfer of the land to
the successor in title is endorsed upon the deeds and, by reason
thereof, restricts the use to which
the property may be put by
succeeding successors in title. Such condition may also confer rights
upon the holders of title to other
properties by defining the
relationship between portions of land or by conferring upon such
other lot holders a right to enforce
the restrictive condition
applicable to the property in question in this respect such condition
are in the nature of servitudes.
Given the nature of these conditions
of title and the rights that are thereby conferred they cannot be
removed, varied or suspended
except with the consent of all of the
parties whose rights and interests are regulated thereby.”
[18]
I am unable to disagree with counsel for the applicant that the
restrictive condition in the title deed is a personal servitude.
However, once a personal servitude is registered by the Registrar of
Deeds against the title deed, it becomes a real right in favour
of
the person in whose favour it is registered. It is carried forward
with every transfer unless the holder thereof consent to
its removal
or is expunged by a particular event or the elapse of time. I hold
the view therefore that it is not within the powers
and function of
the Court to unilaterally and without the consent of all the affected
parties to make or break the contract that
came into being when the
personal servitude was registered.
[19]
I find myself in agreement with counsel for the respondent that the
respondent’s refusal to consent to the removal of
the
restrictive condition from the title deed is fatal to the case of the
applicant and on this basis the application falls to
be dismissed.
[20]
There is no merit in the applicant’s contention that it is
approaching the Court since it has a beneficial interest in
the
property as the holder in title. It is trite that in motion
proceedings a litigant must make out its case in its founding papers
and the applicant has failed to make the allegation that it was a
beneficiary in this case. Further, it is not in dispute that
the
applicant has an interest in the property by virtue of being the
holder in tittle. However, the applicant’s rights and
interest
in the property is limited by and subject to the servitude registered
in favour of the respondent. It is my respectful
view therefore that
the applicant’s rights are limited by the servitude and the
legislature intended to protect the rights
of beneficiaries to the
land from the owners of the land by the promulgation of section 2 of
the Act. The inevitable conclusion
is that it would be
counter-productive for the Act to provide the same remedies for both
the beneficiaries and the owners of land
alike.
[21]
Section 1
of the
Immovable Property (Removal or
Modification of Restrictions) Act, 94 of 1965(“the Act”)
provides as follows:
1. Interpretation
of terms:
In this Act,
unless the context otherwise indicates –
‘
beneficiary’
means any person entitled to a beneficial interest in immovable
property under a will or other instrument or
whose benefit any
immovable property is held in terms of a will or other instrument by
a trustee, administrator or fiduciary without
a beneficial interest;
[22]
Section 2 Application to the court for the removal of modification
of restrictions on immovable property:
(1) If any
beneficiary interested in immovable property which is subject to any
restriction imposed by will or other instrument
before or after the
commencement of this Act, desires to have such restrictions removed
or modified on the ground that such removal
or modification will be
to the advantage of the persons, born or unborn, certain or
uncertain, who are or will be entitled to such
property or the income
thereof under such will or instrument, such beneficiary may apply to
the court for the removal or modification
of such restriction.
[23]
Section 9 Endorsement of title deed
(1)
………………………………
(2)
After
any restriction against alienation has ceased to be effectual in
respect of any immovable property in terms of section eight,
the
registrar shall, on the application by or on behalf of the person in
whose name such immovable property is registered, accompanied
by the
title deed under which such immovable property is so registered and
in which such restriction is embodied, together with
and order of
court, or such other proof as the registrar may consider necessary,
to the effect that the said restriction has so
ceased to be effectual
in respect of the said immovable property, endorse the said title
deed to that effect.
[24]
I hold the view that the title deed does not fall into the category
of other instruments as envisaged in section 2 of the Act.
Section 2
of the Act refers to a will and other instruments and in my
respectful view it would be against the principles of interpretation
to give other instruments a wider meaning to include a title deed.
The section deals with beneficiaries whose interest in
the property
was bestowed by will or other instrument. A title deed does not
bestow beneficial interest in the property but ownership
or title
which may be limited or subject to a restrictive condition registered
in favour of a beneficiary to that restrictive condition.
[25]
Section 1
of the
Wills Act 7 of 1953
provides the following:
1. Definitions
In this Act, unless
the context otherwise indicates –
“
will”
includes a codicil and any other testamentary writing.
[26]
It is my respectful view therefore that the definition of a ‘will’
in the
Wills Act includes
“other instruments” as
envisaged in section 2 of the Immovable Property Act as it refers to
other testamentary writing.
I hold the view therefore that the
applicant is not a beneficiary as envisaged in the Act as it is the
owner of the subject property.
If the Act intended to refer to the
owner of the property as a beneficiary, section 9 (2) would have
referred to him as a beneficiary
and not the person in whose name the
property is registered. The other instruments referred to in the Act
are, in my view, other
testamentary instruments as per the definition
of the ‘will’ in the
Wills Act since
the legislature was
in that section dealing and referring to a will.
[27]
In
Moodley v Umzinto North Town Board
[1997] ZASCA 95
;
1998 (2) SA 188
the
Supreme Court of Appeal stated the following:
“
Because
the section invades the common-law right of a council to claim
damages suffered by it in consequence of the negligent acts
of its
servants, it should be interpreted restrictively.
A change in
language prima facie indicates a change in intention, especially
where the change occurs in immediately successive sections
within the
same ordinance.”
[28]
In
Padayachee v Adhu Investments CC and Others 2016 (2) ALL SA @
555
the Court stated the following:
“
The
inevitable point of departure is the language of the provision and
where more than one meaning is possible each possibility,
i.e. each
possible meaning, must be weighed in the light of all these factors.
Where the court is faced with two or more possible
meanings that are
to a greater or lesser degree available on the language used….
The apparent purpose of the provision and
the context in which it
occurs will be important guides to the correct interpretation”.
[29]
In
The City of Tshwane Metropolitan Municipality v Blair Atholl
Homeowners Association 2019 (1) ALL SA at 291
the Supreme Court
of Appeal emphasised the above principle of interpretation as
follows:
“
This
Court has consistently stated that in the interpretation exercise the
point of departure is the language of the document in
question.
Without the written text there would be no interpretive exercise. In
cases of this nature, the written text is what is
presented as the
basis for a justiciable issue. No practical purpose is served by
further debate about whether evidence by the
parties about what they
intended or understood the words to mean serves the purpose of
properly arriving at a decision on what
the parties intended as
contended for by those who favour a subjective approach, nor is it in
juxtaposition helpful to continue
to debate the correctness of the
assertion that it will only lead too self-serving statements by the
contesting parties. Courts
are called upon to adjudicate in cases
where there is dissensus. As a matter of policy, courts have chosen
to keep the admission
of evidence within manageable bounds. This
court has seen too many cases of extensive, inconclusive and
inadmissible evidence being
led. That trend, disturbingly, is on the
rise.”
[30]
I am unable to disagree with counsel for the respondent that the
meaning to be ascribed to other instruments should not be
wider than
reference in the
Wills Act to
other testamentary instruments since
the words were used by the drafters of legislation when they were
dealing with and referring
to a will. It is my considered view
therefor that the applicant lacks the necessary locu standi to bring
this application under
the Act and the application falls to be
dismissed on this ground.
[31]
In the circumstances, I make the following order:
A. The application
is dismissed;
B. The applicants
are liable to pay the costs of the respondents jointly and severally
the one paying the other to be absolved including
the costs of senior
counsel.
_________________
TWALA
M L
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
Date
of hearing: 4 February 2019
Date
of Judgment: 22 February 2018
For
the Applicants: Adv. JC Viljoen
Instructed
by: Stupel & Berman Inc
Tel:
011 776 3000
For
the Respondents: Adv.PT Rood SC
Instructed
by: Shaie Zindel Attorneys
Tel:
011 728 7727