About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 305
|
|
Bondev Development (Pty) Ltd v Mosikare and Others (50391/2008) [2010] ZAGPPHC 305 (22 April 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
Case No: 50391/2008
Date heard:
14/04/2010
Date
of judgment: 22
April
2010
In the matter
between:
Bondev Developments
(PTY)
Ltd
.........................................................................................................
Applicant
and
Mosikare, Joseph
Sello
Chief
.....................................................................................................
First
Respondent
Mosikare, Kakanyo
Tirelo
.....................................................................................................
Second
Respondent
The Registrar of
Deeds,
Pretoria
...............................................................................................
Third
Respondent
ABSA Bank
Limited
...............................................................................................................
Fourth
Respondent
JUDGMENT
DU PLESSIS J:
The first and second
respondents are the joint owners of an immovable property known as
erf 999, Midstream Estate Extension 8. Paragraph
B of the first and
second respondents’ title deed provides as follows:
“
Onderhewig
aan die volgende voorwaarde opgelê en afdwingbaar deur Bondev
Ontwikkelings (Eiendoms) Beperk. ... (die ontwikkelaar),
naamlik: Die
transportnemer, sy opvolgers in titel of regverkrygendes, is verplig
om ’n woonhuis op die eiendom op te rig
binne 18 (agtien)
maande vanaf 29 Oktober 2004, by gebreke waarvan die ontwikkelaar
geregtig sal wees, maar nie verplig nie, om
te eis dat die eiendom
aan die ontwikkelaar op koste van die transportnemer getransporteer
word teen betaling van die oorspronklike
koopprys, rentevry. Die
transportnemer sal nie die eiendom binne gemelde tydperk mag verkoop
of oordra sonder skriftelike toestemming
van die transportgewer nie.”
It is common cause
that the “ontwikkelaar” referred to in the condition of
title is the applicant. Seeking to enforce
the condition of title,
the applicant now applies to this court for orders aimed at
compelling the first and second respondents
to transfer the property
to it. Only the first and second respondents opposed the application
and I shall refer to them collectively
as “the respondents”.
I mention, for the sake of completeness, that the fourth respondent
holds a bond over the property.
I must accept, in view thereof that
the fourth respondent did not oppose the application, that it is
satisfied that its rights
are protected if orders in terms of the
notice of motion were granted.
The applicant is the
developer of the township called Midstream Estates Extension 8.
Initially, during about 2004, the applicant
sold erf 999 in the
township (“the property”) to a close corporation called
Sunset Point Properties 99 CC (“Sunset”)
for R390 000. On
12 July 2006 the respondents bought the property from Sunset for R750
000. It was pursuant to this sale that the
property was transferred
to the respondents subject to the condition that I have quoted. The
transfer was registered in the Deeds
Office on 23 April 2007.
When the respondents
bought the property and also when transfer was registered, no
dwelling house had been erected on the property.
That is still the
position. On 31 August 2007, after they had been made aware that the
applicant intended to enforce the condition
of title, the respondents
wrote a letter to the applicant seeking “a year’s
extension” of “the building
period”. The applicant
does not expressly state that an extension was granted.
In their answering
affidavit the respondents state that the condition was not part of
their agreement with Sunset. Counsel for the
respondents did not
argue that the statement, if accepted, would disentitle the applicant
to the relief it seeks. In my view counsel
correctly did not seek to
argue such a defence. The mere fact that the respondents might not
have known about the condition when
they bought the property does not
disentitle the applicant to enforce it. Being a condition of title,
the clause that I have quoted
constitutes a limitation on the
respondents’ rights of ownership. If it should for some reason
not have been part of the
title deed there are remedies that the
respondents could pursue, probably against their seller.
It
is common cause that the applicant originally sold the stand to
Sunset for R390 000. Contending that that constitutes the
“oorspronklike
koopprys” referred to in the condition of
title, the applicant tenders to pay that amount to the respondents
against transfer
of the property. The respondents bought the property
for R750 000. In their opposing papers they tenders transfer of the
property
against payment to them of R750 000. Mr Bredenkamp for the
respondents referred me to
Lodhi
2 Properties Investements CC v Bondev Developments
2007 (6) SA 87
(SCA)
in
which a clause in a contract was at issue. The clause in the contract
was a translated version of the condition of title now
under
consideration. Counsel referred me to paragraph
12
of
the
Lodhi 2
judgment
as support for an argument that the amount that the applicant must
pay to the respondents is the “purchase price”
and not
the “original purchase price”. The
Lodhi
2
judgment
is no authority for that proposition. The interpretation of the words
“original purchase price” was not an
issue in that case.
Mr
Bredenkamp further submitted that the words “oorspronklike
koopprys” must be interpreted to mean the price that the
respondents paid to Sunset because an interpretation that it refers
to the price that Sunset paid to the applicant, would “give
the
applicant an unfair or unreasonable advantage over” the
respondents. For this proposition counsel relied on
Meskin,
NO v Anglo American Corporation of SA Ltd and Others
1968 (4) SA 793
(W)
at
802A. In the passage referred to Jansen J (as then was) made the
point that “all contracts are
bona
fidei
and
that good faith is a criterion when a contract is interpreted. There
is, with respect, no difficulty with what the learned judge
said. It
is not authority for the proposition, however, that when a contract
is interpreted, the interpreter’s conception
of what good faith
is takes precedence over the meaning of the words that the parties to
the contract used. When interpreting a
written document the primary
purpose remains to ascertain what the words in their context mean and
to give effect thereto.
Finally,
Mr Bredenkamp submitted that the applicant is in essence claiming
restitutio in
integrum.
Accordingly,
the argument proceeded, the respondents must be restored to the
position they were in before they bought the property.
The answer to
this proposition is that the applicant is not claiming
restitutio
in integrum.
It
is enforcing a right that it has under the condition of title.
In my view the
question as to whether the applicant must pay R390 000 or R750 000
depends on the interpretation of the words “oorspronlike
koopprys” in the title deed. “Oorspronklike”
qualifies or, rather, identifies the “koopprys” that
must
be repaid. There is in the context in which the words are used only
one “oorspronklike koopprys” and that is the
price that
was paid in terms of the first, original, sale of the property; the
price that the developer received when it first
sold the property.
It is concluded that
the amount that the applicant must pay to the respondents is R390
000.
Mr
Celliers for the applicant, properly, referred me to a judgment of my
colleague Fabricius AJ in
Bondev
Developments (Pty) Ltd v Plenty Properties 60 (Pty) and Others
(North
Gauteng Case no. 43602/08 wherein a practically identical condition
of title was at issue. In that case, as in this one,
the original
purchaser resold the property after expiry of the building period and
before a dwelling on the property had been erected.
In that case, as
in this one, the applicant consented to the transfer of the property
to the second purchaser and in the written
consent stated:
“Voorwaarde B in titel
1
is nog nie aan voldoen nie en moet staan as ’n voorwaarde”.
The
learned judge in the
Plenty
Properties
case
reasoned that, as the time within which to build had expired when the
second purchaser bought the property, it was impossible
for the
second purchaser to comply with the obligation in terms thereof, that
is, to build within 18 months of, in that case, 14
November 2005. As
I understand the learned judge he also reasoned that, as the
applicant’s consent in that case did not stipulate
a new time
for performance, the second purchaser could not comply with the
condition. In other words, that the condition was unenforceable
because no time for its fulfilment had been stipulated.
Mr
Celliers sought to distinguish the
Plenty
Properties
case
on the basis that in this case the parties did agree on time within
which the respondents had to comply with the condition.
I have
pointed out that the respondents requested a one year extension,
presumably from 31 August 2007. There is no evidence, however,
that
this request was granted in its terms. In the founding papers the
applicant refers on a written agreement between it and the
first
respondent.
Apart
from the fact that the second respondent is no party to that
agreement, the written agreement does not state an extended date
for
compliance with the condition. In fact, the written agreement
2
to which the applicant refers is a rather sloppy, half completed
document signed only by the first respondent and no one else.
The
respondents admitted that the applicant and the first respondent had
entered into the written agreement, but the terms that
were admitted
do not include a time within which the condition had to be complied
with. On the facts, therefore, the applicant
did not prove that the
parties had agreed on an extended time for performance by the
respondents of the condition of title.
Mr
Celliers further argued that the judgment in the
Plenty
Properties
case
is clearly wrong and should not be followed. Counsel pointed out that
the fact that the second purchaser (respondents in this
case) took
transfer after the building time limit had expired, does not mean
that the obligation to build within the stipulated
time had
“disappeared”. It only means, the argument went, that
when the respondents took transfer, the first purchaser
was in
mora
with
the obligation to build. It further means that, the moment they took
transfer, the respondents were also in
mora.
I
agree with counsel’s submission. Obligations are extinguished
when they are performed. Apart from that, obligations can
be
extinguished by, for instance, waiver or prescription. If, however,
an obligation is not extinguished, it remains despite the
fact that
the time for its performance has come and gone. The person who has to
perform the obligation is not excused when he falls
into
mora.
Mr
Celliers correctly pointed out that the applicant could not have
enforced the obligation before expiry of the time limit. To
hold that
it cannot thereafter enforce it would render the whole obligation
meaningless.
With
due respect to the learned judge in the
Plenty
Properties
case,
it was unnecessary for the applicant to have stipulated a new time
for performance after Sunset and thereafter the respondents
fell in
mora.
A
time for performance had been stipulated in the condition. On expiry
of the stipulated time, the obligation had to be fulfilled
immediately and had to be completed within a reasonable time.
I
have come to the conclusion that the
Plenty
Properties
case
was wrongly decided and I decline to follow it.
As long as the
obligation to build remained in existence, the applicant’s
rights in terms of the condition also remained in
existence. I do not
think that prior demand was necessary before the applicant became
entitled to enforce its rights. To the extent
that it was, there was
a demand and the application in any event constitutes sufficient
demand.
I am mindful thereof
that the obligation in question is not contractual in nature, but
that it constitutes a limitation to the respondents’
rights of
ownership.
I do not think that
the distinction makes a difference to the reasoning set out above.
In the result the
following order is made:
1. The First and
Second Respondents are ordered to re-transfer the undermentioned
property to the Applicant at the First and Second
Respondents costs
against payment by the Applicant to the First and Second Respondents
of the amount of R390 000.00 (three hundred
and ninety thousand rand)
i.e:
ERF 999 MIDSTREAM
ESTATE EXTENSION 8 TOWNSHIP, REGISTRATION DIVISION J.R., GAUTENG
EXTENT 1039 (ONE
THOUSAND AND THIRTY NINE) SQUARE METRES;
HELD BY DEED OF
TRANSFER T52976/07
2. If the First and
Second Respondents fail to sign the relevant documentation to give
effect to the order granted in paragraph
1 above, the Deputy Sheriff
of this Court is authorized to sign all necessary documents to effect
re-transfer of the aforementioned
property from the First and Second
Respondents to the Applicant against payment of the amount of R390
000.00 (three hundred and
ninety thousand rand) less costs, payable
to the Deputy Sheriff or the Fourth Respondent, i.e. ABSA Bank
Limited as bondholder
on behalf of the First and Second Respondents;
3. The Applicant is
entitled to register this order at the Registrar of Deeds;
4. First and Second
Respondents are ordered to pay the applicant’s costs of this
application.
B.R. du Plessis
Judge of the High
Court
On behalf of the
Applicant: Tim du Toit & CO. Inc.
433 Rodericks Road
Lynwood
Pretoria
Adv. P.G. Cilliers
On behalf of the 1
st
and 2
nd
Respondent: AM Vilikaza Tau Attorneys
430 Perm Building
4
th
Floor
200 Pretorius Street
Pretoria
Adv. I.M. Bredenkamp
SC
On behalf of the 3
rd
and 4
th
Respondent: No appearance.
1
The
condition now at issue.
2
Annexure
B4 to the founding affidavit.