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[2012] ZASCA 208
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Margalit v Standard Bank of South Africa Ltd and Another (883/2011) [2012] ZASCA 208; 2013 (2) SA 466 (SCA); [2013] 2 All SA 377 (SCA) (3 December 2012)
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THE SUPREME COURT OF APPEALOF SOUTH AFRICA
JUDGMENT
Case No:
883/2011
Reportable
In the matter between:
MEIR MARGALIT
...................................................................................................
Appellant
and
STANDARD BANK OF SOUTH AFRICA LTD
.........................................
First
Respondent
NELSON BORMAN & PARTNERS INC
..............................................
Second
Respondent
Neutral citation:
Margalit v Standard Bank of SA Ltd
(883/2011)
[2012] ZASCA 208
(3 December 2012)
Coram:
Nugent, Leach and Pillay JJA and Southwood and Erasmus
AJJA
Heard:
21 November 2012
Delivered:
03 December 2012
Summary: Conveyancing attorney ─ transfer delayed due to
conveyancer’s negligence ─ conveyancer liable for damages
suffered by seller of property due to the delay.
______________________________________________________________________
O R D E R
______________________________________________________________________
On appeal from:
South Gauteng High Court, Johannesburg (Mbha J
and Levenberg AJ sitting as court of appeal):
‘
1. The appeal is upheld with costs.
2. The order of the high court is set aside and is replaced with the
following:
‘
The appeal is dismissed, with costs.’
______________________________________________________________________
J U D G M E N T
______________________________________________________________________
LEACH JA (NUGENT and PILLAY JJA, SOUTHWOOD and ERASMUS AJJA
concurring)
[1] The appellant is the former owner of a certain piece of immovable
property situated in Sandton, more fully described as Erf
300,
Morningside Manor, Extension One (‘the property’).
In May 2007 he sold the property to a third party at an
agreed
purchase price of R3 million. Of this, he was to receive R2.9 million
with the balance of R100 000 being paid to an
estate agent as
commission. At the time of the sale Standard Bank, the first
respondent, held two mortgage bonds over the property
which had to be
cancelled before it could be transferred to the purchaser. Standard
Bank appointed the second respondent, a Johannesburg
firm of
attorneys, to act on its behalf in cancelling the bonds.
Unfortunately, it took more than a year, until 16 July 2008, before
the bonds were cancelled, the property was transferred to the
purchaser, and the appellant was paid. Understandably annoyed by
this
delay, the appellant instituted a magistrates’ court action
against the respondents in which he claimed damages in respect
of
interest lost on the net price of R2.9 million, alleging that at
least some of the delay had been attributable to the second
respondent’s unprofessional conduct.
[2] On 23 April 2010, the trial magistrate upheld the claim and
granted judgment against both respondents in the sum of R42 713,42
being the amount of damages the parties had agreed should be awarded
in the event of the claim succeeding. However, the respondents
successfully appealed to the South Gauteng High Court which, on 20
May 2011, set the magistrate's order aside and substituted an
order
absolving the respondents from the instance, with costs. The further
appeal to this court is with the high court’s
leave.
[3] As a general rule, the overall process of effecting the transfer
of immovable property is driven by the seller’s conveyancing
attorney (referred to in evidence as ‘the transferring
attorney’). The appellant appointed Warrender Attorneys
(‘Warrender’)
to do the necessary to transfer the
property to the purchaser. As no transfer may be registered without
what is commonly referred
to as a ‘rates and taxes clearance
certificate’ from the relevant local authority
1
(in the present case the City of Johannesburg Metropolitan
Municipality), the initial step was for Warrender to obtain such a
certificate. In the present case, although Warrender applied for the
requisite certificate almost immediately after the property
had been
sold, it only came to hand on 30 April 2008.
[4] The appellant, who subsequently also instituted action for
damages against the City of Johannesburg (we are unaware of the
outcome of that litigation), does not allege that the respondents
were in any way to blame for this lamentable delay. Instead,
his
claim against them relates to a portion of the two and half months
that elapsed after the rates and taxes clearance certificate
was
issued before transfer of the property occurred on 16 July 2008.
[5] As mentioned at the outset, at the time of the
sale there were two mortgage bonds registered over the property in
favour of
Standard Bank as security for loans previously advanced to
the appellant – the first being bond B45584/89 registered on 3
July 1989 securing a loan of R250 000; the second being bond
B39663/91 registered on 5 June 1991 as security for a further
loan of
R100 000 – which both had to be cancelled in order for
transfer to be effected.
2
It is also common cause that the purchaser, in
turn, intended to mortgage the property as security for a loan he had
negotiated
with Nedbank in order to pay for the property. This
required Nedbank to provide a guarantee to pay the outstanding sum
secured
by the existing mortgage bonds in order to obtain Standard
Bank’s consent to cancellation.
[6] The parties are agreed that it was a term of each of the Standard
Bank’s bonds that, on providing a guarantee for payment
of the
amount secured, the appellant would be entitled to cancellation of
the bond, and that such cancellation would be effected
by either
Standard Bank or its agent in a professional and businesslike manner.
As appears from what follows, there were certain
delays that occurred
in the transfer process after the rates clearance certificate finally
became available. These the appellant
seeks to ascribe to the second
respondent’s negligent failure to act in a professional and
businesslike manner which, it
alleges, not only rendered the second
respondent liable in delict but constituted a contractual breach of
the terms of the bonds.
[7] In order to evaluate the second respondent’s conduct, it is
necessary to bear in mind the process followed to obtain
the
registration of transfer in a case such as this where the immovable
property sold is burdened by a mortgage bond and the purchaser,
too,
requires to mortgage the property as security for a loan. Three
different transactions in the deeds registry are involved:
the first
is the transfer of ownership of the property from the seller to the
purchaser; the second is the cancellation of the
existing
bondholder’s mortgage bond over the property; and the third is
the registration of the mortgage bond of the new
bondholder over the
property. The three transactions take place simultaneously. Although
a particular conveyancing attorney may
represent more than one of the
interested parties in this process, in most cases, (as was the case
in the present matter) three
attorneys are involved. Here Warrender
was the transferring attorney, charged with effecting transfer from
the appellant to the
purchaser; the second respondent represented
Standard Bank to ensure that, upon suitable guarantees for payments
of the amounts
secured being provided, its bonds were properly
cancelled; and another attorney represented Nedbank to ensure that a
mortgage bond
in its favour was passed over the property when
Standard Bank’s existing bonds were cancelled, thereby securing
the amount
advanced to the purchaser.
[8] When the appellant approached Warrender to attend to transfer on
his behalf he appears to have forgotten that there were in
fact two
bonds in favour of Standard Bank registered over the property. He had
checked the balance of his bond account over the
internet, which
reflected that he owed the bank about R1 201. This was the total
amount owing in respect of a number of different
mortgage bonds
passed over different properties as security for various loans made
to him, but without the amounts in respect of
each particular bond
being indicated. He then instructed Warrender to arrange for the
property to be transferred and the bond over
the property to be
cancelled.
[9] Consequently, on 11 June 2007, Warrender wrote to Standard Bank
to inform it that they had been instructed to attend to the
transfer
of the property which was ‘presently bonded to yourselves’
and requested it to provide details of its guarantee
requirements and
the name of the attorney who would attend to ‘the cancellation
on your behalf’. Presumably in response
to this, the second
respondent wrote to Warrender on 14 September 2007 to notify them
that it was acting on behalf of Standard
Bank, and enclosed a copy of
the deed of transfer relating to the property as well as a document
dated 12 June 2007 setting out
Standard Bank’s guarantee
requirements (in a sum of R1204.40). The second respondent went on to
call for a guarantee in that
sum, and stated ‘We are cancelling
One Bond….’
[10] The various parties proceeded to prepare their transfer
documents and to arrange for the appropriate guarantees. In the light
of the almost trifling amount required by Standard Bank, a guarantee
for payment of the amount still due to it was of no real concern
and,
on 17 July 2007, Nedbank issued a guarantee to Standard Bank in the
amount of R1201.40. However transfer was placed in limbo
awaiting the
rates and taxes clearance certificate and it was only in April the
following year, after it had arrived, that Warrender
was finally in a
position to lodge the documents necessary for registration of
transfer of the property into the name of the purchaser.
As already
explained, this required the simultaneous lodging by both the second
respondent of Standard Bank’s consents to
cancel its mortgage
bonds and Nedbank’s conveyancer of the documents needed to
register its new mortgage bond. However the
matter was made somewhat
more complicated by reason of Standard Bank having lost both its copy
of the property’s title deed
(which it was holding as security)
and its mortgage bonds over the property. According to the evidence,
banks losing documents
of this nature is an almost everyday
occurrence. Fortunately for parties in this position, help is to hand
in the form of regs
68(1) and (6) of the regulations promulgated
under the
Deeds Registries Act 47 of 1937
, which provide:
‘
(1) If
any deed conferring title to land or any interest therein or any real
right, or any registered lease or sublease or registered
cession
thereof or any mortgage or notarial bond, is lost or destroyed and a
copy is required for any purpose other than one of
those mentioned in
either of the last two preceding regulations, the registered holder
thereof or his duly authorised agent may
make written application for
such copy, which application shall be accompanied by an affidavit
describing the deed and stating
that it has not been pledged and it
is not being detained by any one as security for debt or otherwise,
but that it has been actually
lost or destroyed and cannot be found
through diligent search has been made therefor, and further setting
forth where possible
the circumstances under which it was lost or
destroyed . . . .
. . . .
(6) On compliance with the
provisions of this regulation the Registrar shall, if he is satisfied
that no good reason to the contrary
exists, issue the certified copy
asked for: provided that no such copy shall be issued until the
Registrar has searched the registers
and has made suitable
endorsements regarding transactions, if any, registered therein in
connection with the deed or bond concerned.’
[11] In order for Standard Bank to cancel its bonds, it was necessary
for the second respondent to avail itself of reg 68(1) to
apply to
the Registrar of Deeds for a certified copy of both the appellant’s
deed of transfer and the missing mortgage bonds.
This required the
second appellant to prepare the necessary application under the
regulation which was to be lodged simultaneously
with and linked to
the other three transactions (viz the registration of transfer,
cancellation of the existing Standard Bank bonds
and registration of
Nedbank’s bond).
[12] However, at that stage the second respondent appears to have
been in possession of a copy of a title deed of the property
that
bore an endorsement of a single mortgage bond registered over the
property, bond B39663/91. There is a suggestion that this
was due to
an error in the deeds office, but how the second respondent came into
possession of this document (which was not introduced
into evidence)
is unclear as, inexplicably, neither the conveyancer of the second
respondent nor the conveyancing secretary charged
with handling the
matter gave evidence. Instead the second respondent contented itself
with calling another conveyancing secretary,
who had not been
involved in the matter in any way, to interpret the contents of its
file. This highly undesirable state of affairs
may well have resulted
in crucial information not being placed before court.
[13] Be that as it may,
Warrender,
Standard Bank and the second respondent, all
laboured under the mistaken impression that there was but a single
mortgage bond registered
over the property when they prepared their
papers to be lodged in the deeds office, and did not refer to the
second bond, B45584/89.
Not only did that bond have to be cancelled
but as it, too, was lost, the second respondent needed to prepare a
reg 68 application
for it as well. It failed to do so.
[14] On 13 May 2008, the respective transactions, including an
application under reg 68(1) in respect bond B39663/91, were
simultaneously
lodged at the Pretoria deeds office and ‘linked’
in order for them to be registered together. It has been agreed
between
the parties that if all the papers had been in order,
transfer to the purchaser would have been registered (and the
appellant paid
his purchase price) by no later than 29 May 2008.
[15] Instead, a deeds office examiner ascertained that bond B45584/89
in respect of which Standard Bank had not consented to cancellation,
was also registered over the property. Transfer could therefore not
be registered and, on 22 May 2008, all the linked documents
relating
to the property and its transfer were rejected.
[16] The problem was rectified in haste. By 30 May 2008, the second
respondent had obtained both Standard Bank’s consent
to
cancellation of bond B45584/89 and a reg 68 affidavit signed by a
bank official relating thereto, and on 2 June 2008 the transfer
documents were once more lodged at the deeds office. This attempt to
obtain transfer was singularly unsuccessful as the application
was
almost immediately rejected for ‘non-linking’ as the
attorneys acting for Nedbank failed to lodge their documents
(whether
this rejection occurred on 2 June 2008 when the papers were lodged or
the following day is not clear, but nothing turns
on this). The delay
caused by this rejection was really inconsequential as the necessary
documents of all parties, properly linked,
were duly lodged for a
third time on 5 June 2008.
[17] Once again, this attempt to effect transfer ended in failure.
The second respondent had initially prepared Standard Bank’s
bond cancellation documents in 2007 while awaiting the issue of the
rates clearance certificate. Those papers included a reg 68(1)
application in respect of bond B39663/91. The second respondent
practises in Johannesburg, and the practice of the deeds office
in
that city at the time was to permit an attorney acting on behalf of a
bondholder to sign the affidavit required for an application
under
reg 68(1). The practice in Pretoria, where registration of transfer
was to be effected, was different. It required the affidavit
to be
signed by a representative of the bondholder, and not by the
attorney. The application in respect of bond B39663/91, prepared
in
2007, had followed the Johannesburg practice. At the end of that
year, at a conference of the registrars of the various deeds
registries countrywide, it was agreed to adopt the Pretoria practice
as a uniform practice throughout the country. This resolution
was
recorded in the Chief Registrar’s Circular RCR 20 of 2007 and
was implemented at the beginning of 2008. The reg 68(1)
application
in respect of bond B45584/89, which was later prepared in May 2008 in
the circumstances already mentioned, followed
this new uniform
practice. But as the application in respect of bond B39663/91, did
not, and on 13 June 2008, it was rejected as
deficient. This caused
the other linked transactions required to effect transfer to be
similarly rejected.
[18] Consequently, the second respondent was required to prepare a
fresh application under reg 68(1) relating to bond B39663/91
in which
the affidavit was properly signed by an official of Standard Bank.
Once that had been done, all the papers were lodged
once more by the
various parties on 2 July 2008. This time the various registrations
were effected and, on 16 July 2008, Standard
Bank’s bonds over
the property were cancelled and transfer was effected to the
purchaser of the property.
[19] In the light of this background, the appellant alleged that the
second respondent’s negligent and unprofessional conduct
had
resulted in a delay in transfer from 29 May 2008 (when it was agreed
that the transfer would have gone through if the papers
as they were
initially lodged had been in order) until it was eventually
registered on 16 July 2008. The appellant contended that
the second
respondent’s conduct not only resulted in Standard Bank having
breached its contract with him but led to the second
respondent being
liable to him in delict.
[20] Before dealing with that contention, I should mention that the
original guarantee issued by Nedbank for payment of the amounts
owing
in respect of the loans secured by the Standard Bank bonds had
expired well before the transfer documents were lodged in
July 2008
but that, immediately before transfer on 16 July 2008, Nedbank had
furnished Standard Bank with a second guarantee in
an amount of
R4713.38 being the amount then outstanding in respect of the bonds.
As a result of this, the high court reasoned that
the obligation to
cancel the bonds had been reciprocal to and dependent upon the
appellant providing a guarantee for payment of
the outstanding
amounts secured. It further reasoned that the appellant had not been
entitled to rely upon the first guarantee
which had lapsed and, as a
second guarantee was only provided on 16 July 2008 (the date of
transfer) when the bonds were cancelled,
Standard Bank was entitled
to avail itself of the
exceptio non adimpleti contractus
and
the appellant had not acquired a right to cancellation of the bonds
before the date of transfer. It accordingly held that as
there had
been no contractual obligation to cancel the bond before then, the
appellant’s claim should have failed on that
ground alone.
[21] This reasoning was also adopted by counsel for the respondents,
albeit tentatively, on appeal to this court. Counsel’s
diffidence was justified. Not only was the
exceptio
not raised
or pleaded by the respondents as a defence, as it ought to have been
if they had wished to rely upon it,
3
but neither respondent had sought to delay or attempt to withhold
performance by reason of any failure of the appellant to perform.
On
the contrary, they attempted to perform their obligations by doing
whatever was necessary to effect cancellation of the bonds.
The
second respondent proceeded to lodge the bond cancellation consents
without the necessary guarantee, and accepted the guarantee
from
Nedbank at the eleventh hour before transfer was registered. The
decision of the high court in this issue was clearly wrong.
[22] I turn to consider the crucial issue of the second respondent’s
alleged negligence. I preface my remarks by observing
that of course
not every act which causes harm to another is actionable in delict.
The action complained of must also be wrongful,
the concept of which
has been authoritatively dealt with in cases such as
Le Roux v Dey
2011 (3) SA 274
(CC) para 122 and the various judgments referred
to therein. It is unnecessary to deal further with this issue as
counsel for the
respondents conceded that, should the delays in
transfer, effecting that occurred after the rates clearance
certificate had been
provided, have been due to the second
respondent’s negligence, both respondents should be held liable
for the agreed damages
and the appeal should succeed. Negligence on
the part of the second respondent, and not wrongfulness, is therefore
the crucial
issue that has to be decided.
[23] A conveyancer is of course ‘an attorney who has
specialised in the preparation of deeds and documents which by law or
custom are registerable in a deeds office and who is permitted to do
so after practical examination and admission . . .’
4
Like any other professional, a conveyancer may make mistakes. But not
every mistake is to be equated with negligence, and in a
claim
against a conveyancer based on negligence it must be shown that the
conveyancer’s mistake resulted from a failure to
exercise that
degree of skill and care that would have been exercised by a
reasonable conveyancer in the same position. As was
remarked many
years ago by De Villiers CJ, in a dictum recently followed by this
court:
5
‘
I do
not dispute the doctrine that an attorney is liable for negligence
and want of skill. Every attorney is supposed to be proficient
in his
calling, and if he does not bestow sufficient care and attention in
the conduct of business entrusted to him, he is liable,
and where
this is proved the Court will give damages against him.’
6
[24] Although at times a court may need expert evidence on a
particular professional practice to determine whether a professional
person acted negligently, that is not a fixed and inflexible rule and
the views of a professional, while often helpful, are not
necessarily
decisive. The nature of the conduct complained of may well be such
that a court, even without the benefit of professional
opinion, may
determine that the conduct complained of was of such a nature that it
clearly falls below the mark of what can be
regarded as reasonable.
This in my view is such a case (I should mention that the expert
evidence called by the parties in this
case, while extremely helpful
in explaining the mysteries of certain procedures in the deeds
office, did not deal pertinently with
all the issues relevant to the
second respondent’s negligence).
[25] Of course the gravity and likelihood of potential harm will
determine the steps, if any, which a reasonable person should
take to
prevent such harm occurring. Moreover, the more likely the harm the
greater is the obligation to take such steps. No hard
and fast rules
can be prescribed. Each case is to be determined in the light of the
particular facts and circumstances. But in
the case of a conveyancer,
it is necessary to remember that any mistakes which may lead to a
transaction in the deeds office being
delayed will almost inevitably
cause adverse financial consequences for one or other of the parties
to the transaction. It is for
that reason that in Christie:
Fourie’s
Conveyancing Practice Guide
(2 ed) it is observed that the
financial aspects of a transfer of property are of great importance
and that negligence or
mistakes on the part of a conveyancer can lead
to financial loss to clients rendering the conveyancer liable for
damages.
7
[26] To avoid causing such harm, conveyancers should therefore be
fastidious in their work and take great care in the preparation
of
their documents. Not only is that no more than common sense, but it
is the inevitable consequence of the obligations imposed
by
s 15(A)
of the Act as read with reg 44, both of which oblige conveyancers to
accept responsibility for the correctness of the facts stated
in the
deeds or documents prepared by them in connection with any
application they file in the deeds office.
[27] I turn to the deal with the various delays that occurred. As I
have mentioned, the rejection on 22 May 2008 was based on the
failure
to apply for a cancellation of bond B45584/89. Relying on a deeds
office note made at the time, it was contended that the
second
respondent must have been in possession of a copy of the title deed
of the property on which only one bond was endorsed.
Miss Venter, the
conveyancing secretary employed by the second respondent (who, as I
mentioned earlier, had not personally dealt
with the transaction)
also explained that the deeds office had subsequently informed them
that for some unexplained reason one
of the copies of the title deed
it held was endorsed with only one bond. This provided the foundation
for an argument that the
second respondent could not have known of
the second bond and had not acted unreasonably in applying only for a
single bond it
to be cancelled. On the other hand, the appellant
argued that the second respondent ought to have done a proper deeds
office search
immediately it received its instructions from Standard
Bank and that, had it done so, it would have learned of the second
bond.
[28] All of this is something of a red herring. As I have already
mentioned, on 14 September 2007 the second respondent wrote to
Warrender, the appellant’s attorneys, advising them that it had
been instructed by Standard Bank to attend to the bond cancellation
and enclosing a copy of the deed of transfer relating to the
property. Both that letter and the deed of transfer bear a stamp
showing that they were sent to Warrender by telefax on 14 September
2007. Each page of the deed of transfer is stamped ‘FOR
INFORMATION ONLY’. Absent the failure to testify of any person
on behalf of the second respondent who had personal knowledge
of the
matter, one is left in the dark as to where this copy of the title
deed came from - although as Standard Bank had lost the
original that
it was holding as security, it presumably was obtained from the deeds
office. But in any event, whatever its source
may have been, the two
mortgage bonds B45584/89 and B39663/91 are both clearly endorsed upon
this copy. It is therefore clear that
from the outset the second
respondent was in possession of a copy of the title deed which showed
both bonds registered over the
property. How it came about that the
second respondent prepared papers relating to the cancellation of
only one bond, (or indeed
stated in its letter of 14 September 2007
that it was only going to cancel one bond) is not explained. But the
inference that the
second bond was simply overlooked is irresistible.
[29] In the absence of an explanation, the inevitable conclusion to
be drawn from this is that whoever acted for the second respondent
to
obtain cancellation of Standard Bank’s bonds over the property,
did so negligently. The potential of harm caused by a
delay in the
event of the application for cancellation being defective was
obvious. That harm could have been simply averted. A
glance at the
copy of the deed of transfer in the second respondent’s
possession would have shown that it was necessary to
cancel two
mortgage bonds registered over the property. As I have said, a
conveyancer should fastidiously examine all relevant
documents. That
was clearly not done by the second respondent. The standard of care
it exercised fell well short of what is expected
of a reasonable
conveyancer, and I have no hesitation in finding that the delay
caused by the rejection on 22 May 2008 was due
to negligence on the
part of the second respondent.
[30] That brings me to consider the 13 June 2008 rejection of the
applications due to the one reg 68 affidavit not having been
properly
attested by an official of Standard Bank. One of the issues upon
which some time was spent at the trial was whether the
contents of
the Chief Registrar’s Circular RCR 20 of 2007, which prescribed
that a reg 68 affidavit could not be signed by
the bondholder’s
attorney, would have been known to practitioners. Again this amounted
to a red herring. Not only was there
no evidence that the responsible
conveyancer of the second respondent did not know of this ‘new’
practice requirement
but, when the linked applications were rejected
on 22 May 2008, the second respondent immediately arranged for the
necessary reg
68(1) application relating to bond B45584/89 to be
obtained from a Standard Bank official. The necessary inference to be
drawn
is that the second respondent knew of the practice prescribed
by RCR 20 of 2007 by that stage.
[31] In addition, a cursory examination of the papers before they
were lodged in May 2008 would have revealed that the application
prepared in respect of bond B39663/91 in 2007 did not meet the new
practice and would be rejected. Once more the inference is
irresistible that the second respondent failed to check the documents
to see if they would pass muster before they were lodged in
2008.
This evidences a slothful approach to the important task of ensuring
that documents accord with the deeds office’s
current practices
and requirements. The excuse offered by the second respondent, that
the papers in regard to bond B396631/91 had
been prepared in 2007
before RCR 20 of 2007 came into operation, is lame in the extreme.
Not only were the papers not prepared
in accordance with the 2007
Pretoria practice where the deeds were to be registered but, in any
event, the documents were only
lodged in 2008 after the introduction
of new uniform practice prescribed by RCR 20 of 2007 of which the
second respondent was well
aware. It was the second respondent’s
obligation, when it lodged its documents, to ensure that they met the
requirements
of the deeds office at that time. The second
respondent’s failure in that regard also falls short of the
high standard of
care expected of a prudent practitioner.
[32] Consequently, both the initial rejection on 22 May 2008 and the
third rejection on 15 June 2008 were due to negligence on
the part of
the second respondent. The second rejection on 3 June 2008 was
inconsequential, as I have said, and the parties in
any event agreed
on the quantum of damages should it be found that the second
respondent acted negligently. In the light of the
finding of
negligence on the part of the second respondent, the high court erred
in reaching the conclusion it did. This appeal
must therefore
succeed.
[33] There is no reason for costs not to follow the event. The
appellant asked for the costs of two counsel. However, the amount
in
issue was fairly meagre, the law in no way unsettled, and the facts
straightforward. In my view, under these circumstances,
an order for
the costs of two counsel is not justified.
[34] The following order will therefore issue:
1. The appeal is upheld with costs.
2. The order of the high court is set aside and is replaced with the
following:
‘
The appeal is dismissed, with costs.’
______________________
L E Leach
Judge of Appeal
APPEARANCES:
For Appellant: R STOCKWELL SC (with him B D Hitchings)
Instructed by:
Warrender Attorneys, Fairland
Honey Attorneys, Bloemfontein
For Respondent: J J ROESTORF
Instructed by:
Borman Duma Zitha Attorneys, Johannesburg
Naudes, Bloemfontein
.
1
Section
92(1)
of the
Deeds Registries Act 47 of 1937
.
2
Section
56(1)
of the Act.
3
Telcordia
Technologies Inc v Telkom SA Ltd
[2006] ZASCA 112
;
2007 (3) SA 266
(SCA) para 163.
4
Nel
Jones Conveyancing in South Africa
(4 ed) at 16.
5
Steyn
v Ronald Bobroff & Partners
(025/12)
[2012] ZASCA 184
para
3.
6
Van
der Spuy v Pillans
1875 Buch 133 at 135.
7
At
18.