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[2010] ZAGPJHC 33
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McLaren v Freimac (Pty) Ltd and Others (08/9285) [2010] ZAGPJHC 33 (28 April 2010)
REPUBLIC OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO:
08/9285
In the matter between:
McLAREN,
LOUISE
Applicant
and
FREIMAC
(PTY) LTD
First
Respondent
PARKVIEW
GOLF CLUB
Second
Respondent
THE
REGISTRAR OF DEEDS, PRETORIA
Third Respondent
CITY OF
JOHANNESBURG
Fourth Respondent
J U D G M E N T
LAMONT, J
:
[1] This is
an
application for a declarator that there has been no subdivision
separating certain immovable property from certain other immovable
property and a direction that the registration of the subdivided
property be cancelled. The applicant is the owner of certain
residential property which prior to subdivision was adjacent to the
property owned and subdivided by the second respondent.
[2] The
second respondent was the owner of certain property known as the Farm
Parkview Golf Course, No. 312 IR. A portion of the
farm which
subsequently became known as Portion 1 of the Farm Parkview Golf
Course, No. 312 Registration Division IR (hereafter
referred to as
the property) was identified in a diagram S.G. No. 8010/2001. The
property was sold by the second respondent to
the first respondent.
The property was registered in the name of the first respondent on 9
March 2005, pursuant to a contract of
sale between first and second
respondents dated 30 March 2004.
[3] Some time
prior to that contract being concluded second respondent and a
company controlled by the applicant’s husband
concluded a
contract in principle pursuant to which the applicant’s
husband’s company would in principle take transfer
of the
property to develop it. Pursuant to this contract a diagram
identifying the property was prepared for the subdivision. The
opening of a township register was granted. At that time the
applicant must have been aware of the steps taken in relation to the
property. She at the time took no steps to prevent the subdivision of
proposed development.
[4] The sale
to the applicant’s husband’s company was not proceeded
with and subsequently the first and second respondents
concluded the
contract referred to above.
[5] The
approval of the local authority for the subdivision and establishment
of a township which had been obtained at the instance
of the company
controlled by the applicants husband lapsed.
[
6]
It was accordingly necessary for the first respondent to obtain the
permission of the local authority for the subdivision of
the property
from the farm owned by the second respondent if the first respondent
wished to implement its rights under the contract
of sale with the
second respondent,
[7] Section 4
of the Transvaal Ordinance No. 20 of 1986 provides that there shall
be no division of land unless the subdivision
has been consented to
by the local authority. Section 5 of the same Ordinance provides
that:
“
5.1
The Surveyor-General shall not approve a general plan or diagram
relating to the division of land and the Registrar shall not
register
the transfer or lease of any portion of land which has been divided
unless the Administrator or authorised local authority
as the case
may be has consented to the division in terms of section 4.
”
There having
been no approval by the local authority the land could not be
subdivided; a Surveyor-General was not entitled to approve
the
diagram and the Registrar was not permitted to register the transfer
of the portion of land divided namely the property.
[8] On 16
March 2005, one week after transfer to the first respondent,
application was made, by the first respondent to establish
a township
on the property. This application was made in terms of the Gauteng
Town Planning and Townships Ordinance No. 15 of 1986
(the Town
Planning Ordinance).
[9] On 11
October 2006 the township application was considered by the fourth
respondent’s Development Planning and Urban
Management Planning
Committee and was approved subject to certain conditions. The
applicant appeared at the hearing as an objector.
She raised the
issue of whether or not the subdivision and subsequent registration
had taken place lawfully. The point raised
by the applicant was
dismissed. (The applicant raised this point pursuant to her discovery
in September 2006 of the existence of
a title deed in the name of the
first respondent. This appears to be the first time the applicant saw
a document reflecting the
owner of the property as the first
respondent. She apparently was informed at some stage during August
2005 that the first respondent
had taken transfer of the land. This
was a rumour the truth of which she did not accept.
[10] The
fourth respondent’s Committee approved the application to
establish a township. The applicant and her husband appealed
against
the decision. The result of the appeal was that the finding of the
Committee was confirmed with some amendments which are
irrelevant to
the present proceedings.
[11] Third
respondent’s act in registering the property in the name of the
first respondent was unlawful. The continued registration
is
unlawful. The third respondent in terms of
section 3
of the
Deeds
Registries Act No. 47 of 1937
is enjoined:
“
3(1)
The Registrar shall, subject to the provisions of this Act –
take
charge of and except as provided in subsection (2) or (3) preserve
or caused to be preserved all records which were prior
to the
commencement of the Act, or may become after such commencement
records of any deeds, registry in respect of which he has
been
appointed: Provided that the Registrar may destroy or otherwise
dispose of any record as prescribed which has been cancelled
in
terms of this subsection or any record in connection with a caveat
that has expired …
examine
all deeds or other documents submitted to him for execution or
registration, and after examination reject any such deed
or other
document the execution or registration of which is not permitted by
this Act or by any other law, or to the execution
or registration of
which any other valid objection exists; provided that such deed or
document need not be examined in its entirety
before being rejected;
attest or
execute and register deeds of transfer of land, and execute and
register certificates of title to land …
”
[1
2]
The third respondent in registering the subdivision and in issuing
the title deed acted unlawfully and in breach of the obligations
provided for in
section 3
of the
Deeds Registries Act. The
Registrar’s decision is reviewable.
“
Whenever
a public body has a duty imposed upon it by statute and disregards
important provisions of the statute, or is guilty of
gross
irregularity or clear illegality in the performance of the duty this
Court may be asked to review the proceeding complained
of and set
aside or correct them. There is no special machinery created by the
Legislature, it is a right inherent in the court,
which has
jurisdiction to entertain all civil causes and proceedings arising
within the Transvaal. The non-performance or wrong
performance of a
statutory duty by which third persons are injured or aggrieved is
such a cause as falls within the ordinary jurisdiction
of the court.
And it will when necessary summarily correct or set aside proceedings
which come under the above category.
”
See:
Johannesburg
Consolidated Investment Co v Johannesburg Town Council
1903
T.S. 111
at 115.
[13] The
exercise of public power is only legitimate when lawfully exercised.
See:
Fedsure
Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan
Council
[1998] ZACC 17
;
1999
(1) SA 374
at para
[56]
;
Pharmaceutical
Manufacturers of South Africa: In re Ex Parte President of the RSA
[2000] ZACC 1
;
2000
(2) SA 674
(CC) at para
[20]
.
[14] The
applicant submits that it is entitled to relief by reason of the
illegality and that such relief can be afforded in terms
of
section 6
of the
Deeds Registries Act. Section
6 provides:
“
6.
Save as is
otherwise provided in this Act or in any other law no registered
deed of grant, deed of transfer, certificate of title
or other deed
conferring or conveying title to land, or any real right in land
other than a mortgage bond, and no cession of
any registered bond
not made as security, shall be cancelled by a Registrar except upon
an order of court.
Upon the
cancellation of any deed conferring or conveying title to land or
any real right in land other than a mortgage bond as
provided for in
subsection (1), the deed under which the land or such real right in
land was held immediately prior to the registration
of the deed
which is cancelled, shall be revived to the extent of such
cancellation, and the Registrar shall cancel the relevant
endorsement thereon evidencing the registration of the cancelled
deed.
”
[15] It is
common cause between the parties that the effect of the subdivision
and issue of title of ownership in the name of the
first respondent
is void and constitutes a nullity by reason of the illegality. In
consequence the property and the farm must be
treated as if it were
never subdivided and as if the owner thereof remains the second
respondent. As a further consequence the
first respondent never
become the owner of the property and was not entitled to make the
application to establish a township on
the land.
[16] As the
act of the Registrar in deciding to register, its implementation by
the registration and the continued state of affairs
(the
registration) are all unlawful, they fall to be dealt with in a
manner that removes the illegality.
If
the Registrar is aware of the illegality he is duty bound to set it
aside
See:
Qaukeni
Municipality v FV Trading
2010 (1) SA 356
(SCA) at para 23 and 26 G-H.
See also on the principle of
legality: Oudekraal Estates (Pty) Ltd v City of Cape Town
2010 (1) SA
333
at para 81.
[17] On this basis the applicant is entitled to relief.
[18] The parties argued the matter on the basis that the Promotion of
Administrative Justice Act, Act 3 of 2000 (PAJA) and/or the
Constitution
(S172(1))
applied. The submissions made were that I was to consider delay and
whether or not justice and equity required the administrative
action
to be set aside. Time was to be considered so it was submitted on the
basis that either 180 days constituted a time bar
if PAJA applied or
that the rights became unenforceable if the delay was unreasonable.
[1
9]
It was common cause between the parties that in deciding the issues
before me, the questions of undue delay and whether or not
an order
is just and equitable were to be decided. I was referred to inter
alia
Gqwetha
v Transkei Development Corporation Ltd and Others
2009 (2) SA 603
(SCA).
The Camps Bay
Ratepayers’ and Residents’ Association and Another v
Gerda Yvonne Ada Harrison and Another
[2010]
ZASA 3 para [50].
[20] The respondents submitted
that is was irrelevant whether or not the delay exceeded 180 days
from the date of the decision
to register the property (assuming the
Promotion of Administrative Justice Act (PAJA) to be applicable as
Section 172 of the Constitution
also applied and that accordingly
there was no 180 day time bar even if PAJA applied. The matter could
so it was submitted be decided
under Section 172 of the Constitution
which provides for considerations of legality.
See:
Qaukeni
Municipality v FV Trading
2010 (1) SA 356
(SCA) at para 14.
[
21]
Assuming this is a constitutional matter in terms of section 172 of
the Constitution of the Republic of South Africa, 1996,
this Court is
empowered to make any order that is just and equitable subject to the
conditions in the section being met. Section
172 provides:-
172. Powers of courts in constitutional matters.—
(1) When deciding a
constitutional matter within its power, a court—
(a) must declare that any law or conduct that is inconsistent with
the Constitution is invalid to the extent of its inconsistency;
and
(b) may make any order that is just and equitable, including—
(i) an order limiting the retrospective effect of the declaration of
invalidity; and
(ii) an order suspending the declaration of invalidity for any period
and on any conditions, to allow the competent authority to
correct
the defect.
(2) (a) The Supreme Court of Appeal, a High
Court or a court of similar status may make an order concerning
the
constitutional validity of an Act of Parliament, a provincial Act or
any conduct of the President, but an order of constitutional
invalidity has no force unless it is confirmed by the Constitutional
Court.
(b) A court which makes an order of constitutional
invalidity may grant a temporary interdict or other temporary relief
to a party, or may adjourn the proceedings, pending a decision of the
Constitutional Court on the validity of that Act or conduct.
(c) National legislation must provide for the referral of
an order of constitutional invalidity to the Constitutional
Court.
(d) Any person or organ of state with a sufficient
interest may appeal, or apply, directly to the Constitutional Court
to confirm or vary an order of constitutional invalidity by a court
in terms of this subsection.
The Camps Bay Ratepayers’
and Residents’ Association and Another v Gerda Yvonne Ada
Harrison and Another
[2010]
ZASA 3 para [50].
[22] As the matter was argued on
the basis of delay and justice and equity I shall deal with those
issues. Although it seems to
me that the true issue is illegality.
If that is the true issue then the consequence of the reviewable act
namely the registration
falls to be set aside as being unlawful
independently of PAJA and Section 172 of the Constitution.
[23] The delay in my view is not
unreasonable. To the extent it exceeds 180 days the delay is
explained. The unreasonable delay
must itself cause prejudice. It did
not in the circumstances.
See:
Harnaker
v Minister of the Interior
1965 (1) SA 372
, Oudekraal
Estates
(Pty) Ltd v City of Cape Town
2010 (1) SA 333
(SCA) at 346.
[24] The first and second
respondents were aware of the risks and the applicant’s
attitude.
Oudekraal
Estates (Pty) Ltd v
City of Cape Town
2004
(6) SA 222
(SCA) at 249 G holds that respondents conduct over the
period is relevant and I take that into account. The application to
establish
a township was prosecuted by a person who was never
entitled to prosecute it and who should have known that. The
applicant in my
view is not to be penalised for having failed to
approach this Court at an earlier stage when she was patently seeking
a remedy
consistent with the remedy she currently seeks but in
another forum. In my view the delay creates no prejudice on the part
of the
respondents which could not have been anticipated at the time
the issue was first raised.
[25] The period of time between
when the applicant heard a rumour which she did not believe and the
time when she discovered as
a fact that transfer had been effected to
the first respondent is not to be taken into account in computing the
delay. The rumour
did not provide her with proper and true knowledge
of the transfer. She doubted the truth of the rumour as steps which
she had
expected to come to her knowledge in the process of a
subdivision had not come to her knowledge. Her consent had not been
sought
and there had been no publication of the proposed subdivision
as would have been expected to be the case had there been a
subdivision
with consent. It appears to me that she did not act
unreasonably in accepting on the face of it that the third respondent
would
not transfer without consent and hence that the rumour was
false.
[26] In my view delay must be
assessed on the basis that the applicant had knowledge from
approximately September2006. Steps which
the applicant took after
September 2006 included appearing at the township application on 11
October 2006 and raising the point,
appealing against the decision of
the committee, prosecuting that appeal on the basis of the same point
until the final conclusion
of the matter which occurred on 24 March
2010. In the course
of that prosecution the applicant
was involved in an initial hearing, the appeal, an application to
have the approval of the member
of the Executive Council of the
Gauteng Provincial Government set aside under Case No 2009/41125
which was granted on 17 November
2009 and in the present matter by
way of the institution of these proceedings during February/March
2008.
[27] During the course of the
applicant’s opposition to the proceedings she made known the
nature and extent of the objection
to the first, second and fourth
respondents.
[28] The applicant throughout
has made it known that she regards the conduct of the third
respondent in registering the subdivision
as unlawful as well as the
reason for that submission. The respondents are not taken by surprise
and well knew of the respondents’
attitude from an early stage.
The first and second respondents must have well known whether the
facts which the applicant asserted
to be true, were true and they
also were able to determine that the transfer by the third respondent
was illegal as also that the
application to establish a township had
not been made (as is required) by the order.
LEGAL EFFECT OF DELAY
[29] In my view the illegality
continues for each day that the property is unlawfully registered in
the name of a party who is
not the owner. On this approach there has
been no delay. There is an ongoing wrong giving rise to an ongoing
cause of action.
See:
Slomowitz
v Vereeniging Town Council
1966 (3) SA 317
(A) at 331 F-G.
The registration which
continuously reflects an unlawful state of affairs is to be
distinguished from its cause. The decision in
Radebe
v Government of The Republic of South
Africa and others
1995 (3) SA 787
at 803 (D) is distinguishable in my view as the cause
was dependent on the single act of expropriation.
[30] By reason of my approach to
the delay issue it is my view not necessary to decide whether or not
the Registrar’s illegal
act is administrative action in terms
of PAJA - a complex question. See:
Minister
of Health and another v New Clicks SA (Pty) Ltd and others
2006 (1) BCLRI (CC) para 718 and following. This absolves me from
deciding whether or not if the 180 day period was exceeded
condonation
should be given, even although none was formally sought
by the applicant. See:
Minister
of Health and another v New Clicks SA (Pty) Ltd and others
2006 (1) BCLRI (CC) para 718 and following.
[31] I consider now justice and
equity. The factors militating in favour of the granting of relief
include:-
the true owner is not the
registered owner,
unlawful action occurred which
resulted in a registration which is void and which should not be
sanctioned,
the current registered owner
cannot pass title to a purchaser,
persons who provide loan money
to the registered owner on the basis of the security of the property
are at risk,
the application to establish a
township may well have been wrongly granted as the application was
brought by a person who is not
the owner and who had no right to
bring it,
the first, second and fourth respondent have continuously been aware
of the claimed defect.
processes which should have been
undertaken in the course of obtaining the consent of the local
authority and which were not undertaken
can be undertaken. This
would enable affected persons to place their perspectives before the
local authority for consideration.
See:
Knysna
Hotel CC v Coetzee
N.O
.
[1997] ZASCA 114
;
1998 (2) SA 743
(SCA) at 753 B-C.
[32] The factor militating
against granting of relief include:-
if the transfer falls to be set
aside and in consequence the second respondent pending transfer must
repay the purchase price
it may be unable to readily do so,
the application to establish a
township may well be set aside as having been brought by the wrong
owner and as having been brought
in respect of an as yet not
subdivided piece of land,
monies expended in the pursuit
of the development may be wasted,
until the unlawful act is set
aside the first and second respondents were entitled to deal in
their property and have done so.
( The delay argument in a different
guise)
In my view justice and equity
dictate that the unlawful act be set aside. The first and second
respondents were aware from an early
stage of the risk they undertook
in proceeding on the basis the registration was lawful. Their
potential losses and difficulties
were knowingly undertaken. I must
balance those injustices against the injustice the continuation of
the unlawful state of affairs
of the third respondent created. There
will be uncertainly concerning the property which affects future
potential owners and other
third parties. The
Deeds Register will inaccurately reflect a
state of affairs
which it should not be allowed to continue to
reflect. As a matter of good order alone the Deeds Register should be
accurate. If
an inaccurate register is permitted to remain it is
inevitable that people will lose faith in it as a register which
impeccably
presents data; data on which people rely and which they
are entitle to assume are reliable.
[33] In my view the following
relief should be granted to the applicant.
It is declared that there has
been no subdivision separating the area of land highlighted on the
diagram attached to this order
marked “X” from the farm
Parkview Golf Course No 312 Registration Division IR.
The registration of the
subdivision of Portion 1 of the farm Parkview Golf Course No. 312
Registration Division IR Province of
Gauteng under deed of transfer
number T28474/2005 is cancelled.
First and second respondents are
to jointly and severally pay the applicants costs.
_____________________
C.G. LAMONT
JUDGE OF THE HIGH COURT
Appearances:
For the Applicant : Adv. A.J.
Lamplough
Instructed by: ; Howard Salmon
Attorney
For the First Respondents : Adv.
S.J. Grobler SC
Adv. C.F. v.d. Merwe
For the Second Respondent : Adv.
L.M. du Plessis
Instructed by : Strauss Scher
Inc
Date of hearing : 25 March 2010
Date of Judgment : 28 April
2010