About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2013
>>
[2013] ZASCA 64
|
|
Municipality of Mossel Bay v The Evangelical Lutheran Church and Another (443/12) [2013] ZASCA 64 (24 May 2013)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 443/12
Not Reportable
In the matter between
MUNICIPALITY OF MOSSEL BAY
......................................................
APPELLANT
and
THE EVANGELICAL LUTHERAN CHURCH
........................
FIRST RESPONDENT
THE REGISTRAR OF DEEDS
...........................................
SECOND
RESPONDENT
Neutral citation:
Municipality of Mossel Bay v
The Evangelical Lutheran Church
(443/12)
[2013] ZASCA 64
(24 May
2013)
Coram
: LEWIS, THERON and MAJIEDT JJA and PLASKET
and ZONDI AJJA
Heard: 9 MAY 2013
Delivered: 24 MAY 2013
Summary: Property Law – interpretation of
restrictive conditions embodied in title deeds relating to use of
land – on
undisputed facts land no longer used for the purposes
specified – use of the word ‘or’ in the restrictive
conditions
plainly disjunctive – breach clearly proved on
undisputed facts, entitling appellant to re-transfer of the land.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
Western Cape High Court, Cape
Town (Baartman J, sitting as court of first instance):
The appeal is upheld with costs.
The order of the court below is set aside and
substituted with the following:
‘
(a) Erf 2002, Mossel Bay, held
by the first respondent in terms of Deed of Transfer T4823/1941 is to
revert to the applicant due
to the first respondent’s failure
to comply with the provisions of clauses (b) B(1) and (2) of the said
Deed of Transfer,
by not using Erf 2002 for church or educational
purposes.
(b) The first respondent is ordered to take all steps
necessary to effect registration of transfer of Erf 2002 into the
applicant’s
name within 30 days of this order.
(c) In the event of the first respondent failing to
comply with paragraph (b) above, the Sheriff of Mossel Bay is
authorised to
sign all the necessary documents on behalf of the first
respondent.
(d) Erf 2003, Mossel Bay, held by the first respondent
in terms of Deed of Transfer 8366/1938, is to revert to the applicant
due
to the first respondent’s failure to comply with the
provisions of clause B(a) of the said Deed of Transfer, by not using
Erf 2003 for church purposes.
(e) The first respondent is ordered to take all steps
necessary to effect registration of transfer of Erf 2003 into the
applicant’s
name within 30 days of this order.
(f) In the event of the first respondent failing to
comply with paragraph (e) above, the Sheriff of Mossel Bay is
authorised to
sign all the necessary documents on behalf of the first
respondent.
(g) The applicant is to bear the costs of registration
of transfer of Erven 2002 and 2003 into its name.
(h) The first respondent is to pay the costs of the
application.’
______________________________________________________________
JUDGMENT
______________________________________________________________
MAJIEDT JA (LEWIS and THERON JA and PLASKET and ZONDI
AJJA concurring):
[1] The appellant, the Mossel Bay Municipality, appeals
with the leave of this court against a judgment of Baartman J,
sitting as
court of first instance in the Western Cape High Court,
Cape Town, dismissing with costs the municipality’s application
for
the retransfer to it of certain immovable property in Mossel Bay
by the first respondent, the Evangelical Lutheran Church.
[2] The church is the registered owner of Erf 2002,
Mossel Bay, held under Title Deed T4823/1941 and Erf 2003, Mossel
Bay, held
under Title Deed T8366/1938 (the properties). The title
deeds contain restrictive conditions in favour of the municipality.
These
restrictive conditions emanate from the original deeds of grant
whereby the properties had been allocated to the municipality’s
council on 9 October 1917. The salient restrictive conditions in
respect of Erf 2002 read as follows:
‘
(B)
(1) The property in question shall be used solely for church or
educational
purposes, provided that in
addition to any church or school buildings
erected on the land, a parsonage
or a caretaker’s house may be
erected;
(2) The land shall be used
solely for the purposes set out in (1) above. If at any time it
ceases to be used for such purpose, or
is no longer required for such
purpose, it shall revert to the Council without payment of
compensation of any improvement effected
on or to the land.’
[3] In respect of Erf 2003 the relevant restrictive
condition is as follows:
‘
(a)
[I]n the event of the property not being used for Church purposes it
shall revert to the Council, save and except that in addition
to the
Church one dwelling as a parsonage or a caretaker’s house may
be erected in respect of the property.’
[4] The municipality sought a retransfer of the
properties to it on the basis of non-compliance by the church of the
conditions
contained in clauses B(2), read with B(1) above, in
respect of Erf 2002, and clause (a) above in respect of Erf 2003. The
nub of
the dispute is whether the church has, in contravention of the
restrictive conditions, ceased using the property solely for church
or educational purposes or no longer requires the land for these
purposes, as far as Erf 2002 is concerned and, in the case of
Erf
2003, whether the property is not being used for church purposes.
[5] The underlying facts are largely undisputed. It was
common cause that the church had erected a school and an outbuilding
on
Erf 2003 and conducted schooling activities there until December
2005. The adjoining Erf 2002 was used as school grounds until that
date. It became common cause further, as will presently appear, that
since January 2006 no schooling activities have been taking
place and
that the buildings have been standing vacant. While the parties were
at variance with each other as to the exact state
of neglect of the
vacant buildings, it is largely undisputed that they are derelict.
This is borne out by photographs attached
to both the founding and
answering affidavits.
[6] I interpose at this juncture to comment briefly on
the manner in which the answering affidavit was drafted. Paragraphs 1
to
21 of the founding affidavit set out the factual background of the
matter, including the transfer of the properties, the restrictive
conditions and the present state of disuse of the properties. In its
answering affidavit the church elected to lump all these paragraphs
together and to meet all the averments therein with the following
terse, non-committal bare denial (loosely translated):
‘
Save
to deny that all facts contained in the founding affidavit of the
deponent Prins, under reply, are true and correct, as will
more fully
appear hereinafter, the rest of the averments are noted.’
In this answer the drafter is remiss in his or her duty
to meet any and all material averments in the founding affidavit by
either
admitting or denying, or confessing and avoiding, unless he or
she has no knowledge of any one or more or all of them. A bare or
unsubstantiated denial will only pass muster where there is no other
option available to a respondent due to, for example, a lack
of
knowledge, and nothing more can be expected of the respondent (see:
Wightman t/a J W Construction v Headfour (Pty)
Ltd
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) para 13;
National Scrap Metal (Cape Town) (Pty) Ltd v Murray &
Roberts Ltd
2012 (5) SA 300
(SCA) para 17). A
bare denial, in circumstances where a disputing party must
necessarily be conversant with the facts averred and
is in a position
to furnish an answer (or countervailing evidence) as to its truth or
correctness, does not create a real and genuine
dispute of fact
(
Wightman,
ibid). A
proper answer to material averments under reply requires, at the
minimum, a separate and unequivocal traversal of each
and every such
allegation which the party seeks to contest. The important allegation
in para 21 of the founding affidavit –
that the properties have
fallen into disuse since January 2006 and that no one has been
attending to the maintenance of the buildings
since then – must
therefore, in the face of this bare, unsubstantiated denial, be
accepted as correct.
[7] The church did deal
seriatim
with paragraphs
22 and 23 of the founding affidavit, which concerned the derelict
state of the buildings, its vandalisation (supported
by photographic
evidence) and the unacceptability of this state of affairs as far as
the municipality is concerned. While disputing
the extent of the
neglect, the church importantly admitted that the buildings have
decayed due to pillaging (‘plundering’).
For the rest, it
embarked on an irrelevant detour which need not burden this judgment.
[8] The church’s defence, in essence, amounts to
this: it has always used and intends to continue using the properties
for
church or educational purposes and its temporary cessation of
schooling activities there is purely as a consequence of its
temporary
impecuniosity. It expressed a firm belief that it would,
with time, succeed in obtaining adequate financial assistance to
overcome
its difficulties and to recommence schooling on the
properties. In supplementary papers it set out a short and long term
vision
for the use of the properties, including an ambitious
charitable project, named ‘Icthus’ (the Greek word for
fish,
a well-known symbol in the Christian faith) and, in the longer
term, the establishment of a training centre for ministers on the
properties.
[9] Extensive negotiations between the parties failed to
resolve the impasse. I must make mention of the fact that, in this
regard,
the municipality has gone to great lengths to find an
amicable solution and to accommodate the church. When all else
failed, it
launched its application in the court below during
February 2010, by which time the properties had been in disuse for
over four
years already. It was incumbent upon the municipality to
act in the interest of its residents, in order to fulfil its
constitutional
mandate towards them, as set out in s 152 of the
Constitution. The municipality can certainly not be faulted for
approaching the
court as a last resort, when all its compassionate
efforts towards attaining an extra-curial solution came to nought.
[10] The issue before us plainly requires an
interpretation of the relevant restrictive conditions. In the court
below Baartman
J held that, in interpreting the conditions, the
Constitution’s property clauses, namely ss 25(1) and (2), must
be given
proper recognition and that the church’s intention is
crucial in determining whether the properties are required for a
particular
purpose. In applying the well-established approach to
disputes of fact in motion proceedings, the learned judge accepted
that the
school and outbuilding have been vandalised, but that they
are capable of repair and further that the church intended to effect
the necessary repairs once it acquired the financial means to do so
and to recommence schooling activities. The learned judge concluded
that the restrictive conditions in respect of Erf 2002 had not been
breached, since the church still required it for church or
educational purposes, as evinced by its intention. That intention,
held Baartman J, was also relevant in respect of Erf 2003, since
the
two erven have always been used as a single entity.
[11] The court below misconstrued the restrictive
conditions, in particular the words ‘. . . or is no longer
required for
such purpose’. It is not proper for a court to
excise from a clause containing restrictive conditions one part
thereof and
to use the excised portion to interpret the entire
clause. The conditions had to be viewed holistically by the court a
quo in determining
their meaning. The words in the relevant
restrictive conditions are clear and unambiguous. It is by now
well-established that,
in interpreting these conditions, the words
must be given their ordinary grammatical meaning unless this would
lead to absurdity,
repugnancy or inconsistency with the rest of the
title deeds’ conditions (see, inter alia,
Picardi Hotels Ltd
v Thekwini Properties (Pty) Ltd
[2008] ZASCA 128
;
2009 (1) SA 493
(SCA) para 5
;
Du Plessis NO v Goldco Motor & Cycle Supplies (Pty) Ltd
2009
(6) SA 617
(SCA) para 49
; Phillips v SA Reserve Bank
[2012] 2
All SA 532
(SCA) para 67). There is no difference in principle in the
interpretation of statutes, contracts or other documents (
KPMG
Chartered Accountants (SA) v Securefin Ltd
2009 (4) SA 399
(SCA)
para 39.)
[12] The court below completely ignored the first part
of the condition in B (2), set out in para 2 above, namely ‘(i)f
at
any time it [the land] ceases to be used for such purpose [ie
church or educational purposes] . . .’ and chose to restrict
its enquiry to the latter part of the condition, namely ‘. . .
or is no longer required for such purpose’. As stated,
the
court below held that the church’s stated intent (which the
court accepted) was that it planned to recommence schooling
once its
finances permitted it to do so and the church consequently still
required the land for such (educational) purpose. Apart
from the
problem with the impermissible excision, pointed out above, the court
below also misconstrued the use of the word ‘or’
in the
condition. That word is plainly used as a disjunctive, ie signifying
a substitution or an alternative. It is trite that
‘or’
is to be construed as a conjunctive, ie reading it as ‘and’,
in only the most exceptional of cases
where the context demands it.
See inter alia
Preddy v Health Professions
Council of South Africa
2008 (4) SA 434
(SCA)
paras 10 – 12, and the cases cited there. It is also trite
that, in the process of determining what the plain, ordinary
grammatical meaning of words are, regard must be had to the context
in which the words have been used. In the leading case on this
aspect
Schreiner JA expressed it as follows in
Jaga v
Dönges, NO
1950 (4) SA 653
(A) at 662G:
‘
Certainly
no less important than the oft repeated statement that the words and
expressions used in a statute must be interpreted
according to their
ordinary meaning is the statement that they must be interpreted in
the light of their context’.
This dictum has been followed in a long line of cases,
the most recent of which in this court are
Natal Joint Municipal
Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) and
South African Property Owners Association v Council of the City of
Johannesburg Metropolitan Municipality
2013 (1) SA 420
(SCA).
[13] When the restrictive conditions are holistically
interpreted by giving the words therein their ordinary grammatical
meaning,
in their contextual setting, the church is plainly in
contravention of the restrictions, it being common cause (for the
reasons
expounded above) that the properties are no longer used for
educational or church purposes. Whatever the stated intent of the
church
as to its future usage may be, this cannot and does not
salvage its breach. The court below erred in finding to the contrary
and
the appeal ought therefore to succeed.
[14] I think it necessary to say something briefly about
two further aspects of the judgment of the court below. It held, on
alternative
grounds, that there was a critical shortage of premises
suitable for educational purposes and that the municipality had
failed
to demonstrate its willingness to make the properties
available to any other institution for this purpose. Consequently, so
the
learned judge held, the municipality had failed to show that it
required the properties for public purposes or in the public
interest.
Secondly, the court below found that the municipality had
the option of demolishing the buildings if they were in as bad a
state
as the municipality alleged. This option emanates from the
provisions contained in s 12 of the National Building Regulations and
Building Standards Act 103 of 1977. The municipality’s failure
to resort to this option, said the judge, is at odds with
the case it
sought to make out in its founding papers. These two aspects are
self-evidently irrelevant considerations. The dispute
between the
parties simply required a legal interpretation of the restrictive
conditions, applied to the factual background (which,
as stated, was
largely or became common cause) in order to determine whether
reversion of the properties to the municipality was
warranted. The
court below erred in veering off-course in respect of these two
aspects and its conclusions do not provide a legally
tenable
alternative basis for its dismissal of the application.
[15] The following order is made:
The appeal is upheld with costs.
The order of the court below is set aside and
substituted with the following:
‘
(a) Erf 2002, Mossel Bay, held
by the first respondent in terms of Deed of Transfer T4823/1941 is to
revert to the applicant due
to the first respondent’s failure
to comply with the provisions of clauses (b) B(1) and (2) of the said
Deed of Transfer,
by not using Erf 2002 for church or educational
purposes.
(b) The first respondent is ordered to take all steps
necessary to effect registration of transfer of Erf 2002 into the
applicant’s
name within 30 days of this order.
(c) In the event of the first respondent failing to
comply with paragraph (b) above, the Sheriff of Mossel Bay is
authorised to
sign all the necessary documents on behalf of the first
respondent.
(d) Erf 2003, Mossel Bay, held by the first respondent
in terms of Deed of Transfer 8366/1938, is to revert to the applicant
due
to the first respondent’s failure to comply with the
provisions of clause B(a) of the said Deed of Transfer, by not using
Erf 2003 for church purposes.
(e) The first respondent is ordered to take all steps
necessary to effect registration of transfer of Erf 2003 into the
applicant’s
name within 30 days of this order.
(f) In the event of the first respondent failing to
comply with paragraph (e) above, the Sheriff of Mossel Bay is
authorised to
sign all the necessary documents on behalf of the first
respondent.
(g) The applicant is to bear the costs of registration
of transfer of Erven 2002 and 2003 into its name.
(h) The first respondent is to pay the costs of the
application.’
________________________
S A MAJIEDT
JUDGE OF APPEAL
APPEARANCES
For Appellant: Adv. R S van Riet SC
Instructed by:
Krige Zietsman Attorneys
c/o Werksmans Attorneys, Cape Town
Lovius Block Attorneys, Bloemfontein
For Respondent: Adv. J de Vries
Instructed by:
Liesel Scholtz Inc
c/o Nawaal Cloete Attorneys, Cape Town
Van Pletzen Lambrechts Attorneys, Bloemfontein