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[2019] ZAGPPHC 273
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Roux and Others v Groenewald and Others (40691/2018) [2019] ZAGPPHC 273 (14 June 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
CASE NUMBER:
40691/2018
14/6/2019
In
the matter between:
LOUIS
ADRIAAN DANIEL
ROUX
1
ST
APPLICANT
PETRUS
IGNATIUS
STEENEKAMP
2
ND
APPLICANT
VEROUX
PROP RTY QEVELOPMENT CC
3
RD
APPLICANT
and
CHRISTIAAN
JOHANNES PETRUS GROENEWALD
1
ST
RESPONDENT
CHARL
LOUIS
DERCKSEN
2
ND
RESPONDENT
TSHWANE
METROPOLITAN MUNICIPALITY
3
RD
RESPONDENT
JUDGMENT
COERTZEN
AJ:
[1]
This
matter was argued before me on 2 May 2019 and I reserved judgment.
The dispute involves an oral right of way over immovable
property.
THE RELIEF SOUGHT:
[2]
The following relief is claimed in the
notice of motion:
"1.
That the right of way servitude
agreement
,
previously
orally
entered into
,
between the 1st Respondent and the 1
st
Applicant, In February 2016, In terms whereof the
1
st
Respondent has agreed to the granting of a right of way servitude
over his property
,
known as Erf 78/1 , situated at 864 31st Avenue, Villieria, Pretoria,
-
['Erf 78'] -
granting
access to the two second dwelling building sites undertaken by the
Applicants and in progress on the respective properties
of the 1
st
and the 2
nd
Respondents
,
the latter's property known as Erf 79/R, situated at 863 32nd Avenue
, Villieria,
Pretoria,
-
['Erf 79'] -
be
and Is hereby
declared
valid and in full force .
2.
That
the 1
st
Respondent's rejection complaint laid with the 3
rd
Respondent against the agreed upon right of way via his property to
that of the two second dwellings erected on the portions of
the
properties respectively purchased from the 1st and 2
nd
Respondents, be and is hereby declared to be unlawful and
i
n
breach of the right of way
servitude
afforded to the 1
st
Applicant in terms of the right of way servitude agreement referred
to in paragraph 1 above.
3.
That
the 1
st
Respondent be and is hereby ordered to withdraw and/or to remove the
rejection complaint laid with the 3
rd
Respondent as referred to in paragraph 2 above, with immediate
effect.
4.
That
the 1
st
Respondent be ordered to complete and to sign, without any delay, all
documents with regards to the
official
registration of the right of way,
required by all of the municipal and other legal institutions .
5.
That,
to the extent necessary, the Sheriff of the Court be and is hereby
authorised and directed to assist
the 1
st
Applicant In effecting the content of the above referred to
paragraphs 3 and 4 of this order.
6.
That
the 1
st
Respondent is hereby ordered to pay the costs of this application on
a scale as between, attorney and client."
-
(my emphasis.)
THE
PARTIES:
[3]
The 1
st
applicant is the sole member of the 3r d
applicant. The 2nd applicant is the “
business partner and
Investor”
of the 1
st
and 3
rd
applicants. The 2
nd
respondent is the owner of Erf 79,
being one of the two
''second dwelling building sites"'
referred to in prayer 1 of the notice of motion. The 3rd
respondent (the Municipality) was joined as interested party. No
relief
is sought against the 2
nd
and 3
rd
respondents. Only the 1
st
respondent opposed the
application.
THE
FACTS:
[4]
It
was common cause at the hearing of the matter that the 1
st
respondent is In fact not the owner of Erf 78 the property being
registered in the name of a close corporation, Coenbob Construction
CC ('Coenbob'), of which the 1st respondent Is the sole member,
[5]
The
applicants seek a declaration of validity of an oral right of way
over Erf 78. On 17 May 2019 I invited the parties in terms
of a
directive, to submit additional heads of argument, on the following
issues:
"1.
Whether Coenbob Construction CC, as the registered owner of Erf 78/1,
situated at 864
31st Avenue, Villieria (referred to in paragraph 1 of
the notice of motion) In respect of which the alleged right of way
servitude
is claimed, should not have been joined to the application,
as an interested party whose rights may be affected by an order of
court in this matter;
2.
Whether
a right of way servitude could validly have been granted to the 1
st
applicant in terms of the oral agreement referred to in paragraph 1
of the notice of motion and as alleged in paragraph 4 of the
founding
affidavit, in the light the decisions in Felix en 'n Ander v Nortier
NO en Andere [1996] 3 All SA 143 (SE) and Janse van
Rensburg and
Another v Koekemoer and Others 2011 (1) SA 118 (GSJ);
3.
Whether
the oral right of way servitude alleged to have been granted to the
1
st
applicant could be enforced against the 1
st
respondent and/or the aforementioned Coenbob Construction CC, in the
light of the aforementioned decisions;
4.
Whether
the oral right of way servitude alleged to have been granted to the
1
st
applicant is capable of 'official registration', either as claimed in
prayer 4 of notice of motion, or in terms of the provisions
of the
Deeds Registries Act No . 47 of 1937;
5.
Whether
any submissions made by the parties in respect of 1, 2, 3 and 4
above, influence the parties' earlier submissions or argument
on any
other aspect."
Counsel for the parties submitted
additional heads of argument.
[6]
The
1
st
respondent, as sole member, did not take issue with the non-joinder
of Coenbob in his affidavit, or at the hearing on 2 May 2019.
In the
additional heads of argument, it is submitted on behalf of the 1
st
respondent, as follows:
"Coenbob
has waived its rights to be joined to the proceedings on the grounds
envisaged in
In re BOE Trust Ltd and Others NNO 2013 (3) SA 236
(SCA)."
I will accept that the non-joinder
of Coenbob is therefore not an issue before the court.
[7]
In the additional heads of argument,, It
Is submitted on behalf of the applicants that they
"do
not seek registration of the afforded right of way servitude"
and further that
"no
relief In terms of any required registration of the relevant right of
way has been sought in the present application and,
In addition, that
the relief initially sought In terms of prayer 4 of the notice of
motion... has been abandoned at the inception
of the hearing....''
THE ORAL AGREEMENT;
[8]
The
oral agreement relied on by the applicants, is pleaded in the
founding affidavit, as follows:
“
4.1
In terms of an
oral
agreement
entered into between the 1
st
Respondent and
myself
[the 1
st
applicant],
during
the course of February 2016, it was agreed, amongst others, that:
4.1.1
I
would
purchase a 540m
2
portion of 1
st
Respondent's
and the 400m
2
portion of 2nd Respondent’s adjacent residential properties,
respectively known as Erf 78/1... and Erf 79/R..., for purposes
of a
building project
Involving the erection of
two
new second dwellings;
4.1.2
The 1
st
Respondent agreed to
right of
access (right of way) for both new second dwellings through his
property
; and,
4.1.3
The 1
st
Respondent agreed to provide and sign all necessary documents for
effecting the agreed upon right of way through his property to
the
property of the 3
rd
Respondent
(sic) - [presumably meant
to be a reference to the property of the 2
nd
respondent)."
-
(my emphasis.)
[9]
A
site
plan Is attached to the
founding affidavit, which according to the 1
st
applicant, reflects the right of way as a
"3m
wide right of way for Erf 79 Remainder''
next
to the words
"vehicle entrance".
This document was prepared by a
representative of the applicants
and
submitted to the 3
rd
respondent. The 1
st
respondent disputes the document and alleges t hat he never had sight
of It.
[10]
In
the answering affidavit, the 1
st
respondent states that he
"on
behalf of Coenbob, had agreed to grant a right of way to the
applicants.''
He goes on to state
that had he not done so
"the
applicants would have been unable to access the portion of the
Property that forms the basis of the Sale Agreement.”
The
sale agreement concluded with the 1
st
respondent is refer red to later In the Judgment .
[11]
The 1
st
respondent alleges that the right of way was granted in respect of
only that portion of land that formed the basis of the sale
agreement
to which he was a part y. The fact that the right of way may have be
n used by the 1
st
applicant to access the portion of land owned by he 2
nd
respondent, was according to the 1
st
respondent, not In terms of the oral agreement. The 1st respondent
alleges that the right of way was
"contingent"
upon the applicants complying with
their obligations in terms of the sale agreement. While the 1
st
respondent agreed to sign all documents necessary to give legal
effect to the right of way, he would do so only,
"once
the Sale Agreement had been completed and the portion subject to the
sale registered Into the name of the third applicant".
[12]
In the replying affidavit the 1
st
applicant alleges that the 1
st
respondent agreed to a right of way
"
via
his property to that of the 2
nd
Respondent
where
[the
applicants]
had also erected a second
dwelling. The second dwelling that
[the
applicants]
had erected on the 1st
Respondent's property
requires
no right of way.
”
(my
emphasis).
[13]
It is
the
applicants' case that on 1 March 2016, the 1rt applicant obtained the
consent of the bondholder of Erf 78, to
erect
a
second dwelling on the property.
The 1
st
respondent disputes that the bondholder gave its consent, as alleged
by the applicants. In view of the conclusion reached in this
judgment, nothing turns on this dispute.
THE WRITTEN SALE AGREEMENT:
[14]
On 10 March 2016 the 1
st
applicant (as " voornemendekoper'') and the 1
st
respondent (as "voornemendever koper'' ) concluded a written
sale agreement for the purchase by the 1st applicant of a 540
m
2
portion of Erf 78, which portion is described in the agreement as
"1/78 (gedeelte van 1/78)",
at an agreed purchase price of
R200,000.00.
[15]
On 14 March 2016 the 1
st
applicant also concluded a written sale agreement with the 2
nd
respondent for the purchase of Erf 79 (the adjacent property) for an
agreed purchase price of R220,000.00. The oral right of way,
whether
on the terms as alleged by the applicants, or on the terms as alleged
by the 1
st
respondent, was not reduced to writing in either of the two sale
agreements.
[16] In
terms of annexure B to the written sale agreement concluded with the
1
st
respondent, the 1
st
applicant undertook to
perform certain improvements to the existing dwelling situated on Erf
78 (referred to by the parties as
the 1
st
respondent's
property), at an additional cost of R50,0 00.00.
IS THE ORAL RIGHT OF WAY
VALID?
[17]
In
Robarts
v Antoni N.O. and Others
[2014] 3 All SA 160
(SCA)
the
Supreme Court of Appeal, with reference to
Felix
en 'n Ander v Nortler NO en Andere
and
Janse van Rensburg and Another v
Koekemoer (supra),
considered the
validity of an oral agreement of 'height servitudes' . In considering
the provisions of s 2 of the Alienation of
Land Act 68 of 1981('the
Act') the SCA held at [17]-[18] - (quoted
sans
footnotes):
"...s 2(1) of the Act
requires alienation of fond to be contained in a deed of alienation
duly signed by the parties or their
agents acting on written
authority to be valid. In terms ofs1(b) of the Act 'land' Includes
'any interest in land' and' alienate'
which corresponds with
'alienation', in relation to land, means 'sell, exchange or donate'.
It is established that a praedial servitude
(such as the height
servitudes involved here) constitutes an 'Interest in land' as
envisaged in the Act. The height servitudes
are real rights which
diminish the dominium of the owner's rights in the Robarts property
as they entitle the respondents and their
successors In title to
restrict the owner of the Robarts property from exercising normal
rights to ownership and developing the
property to its full
potential."
And:
“
As
was argued for Robarts, the parties' affidavits and indeed the
written instrument relied upon by the respondents, make clear
that
the servitudes were agreed upon 'in exchange' for the zoning scheme
departure sand title deed amendments, which would impinge
on the
trust property, sought on behalf of the Robarts property. The trust
would waive its rights to enforce the zoning scheme
and title deed
restrictions and support Robarts' applications in that regard. In
exchange, Robarts would abandon the right to build
higher than he was
otherwise entitled and secure the servitudes f or the trust property.
Each party therefore agreed to waive certain
rights and
simultaneously undertake certain obligations In exchange for the same
concession from the other. In sum, the parties
exchanged corporeal
rights in land. So, whilst there may not have been an alienation of
an interest in land in the form of a sale
or donation, there
certainly was an exchange thereof in the manner envisaged in s 2(1)
of the Act. The decision of this court In
Hoeksma
&
another v Hoeksma
upon which the respondents sought to rely cannot assist because it is
distinguishable. There, the agreement in
issue was Intended to be a
compromise and not an exchange and there was in any event no
discernible object exchanged.”
[18]
In
the matter before me the oral right of way purported to be a real
right which diminishes the
dominium
of the 9wner. On the facts as they
appear from the affidavits, the oral agreement, at tile very least,
envisaged that the 1
st
respondent would grant a right of way over Erf 78 to the 1
st
applicant, as part of the sale of
a
portion of the said property to the
1
st
applicant, ta price to be agreed upon (a written sale agreement
having subsequently been concluded), for purposes of the erection
of
a second dwelling on such portion and for purposes of the erection of
a new dwelling on the adjacent property of the 2
nd
respondent.
[19]
In
my view the right of way in issue in this matter constitutes an
'alienation ' of an 'Interest in land' as contemplated in s 1(b)
of
the Act. To be valid and binding the agreement of a right of way had
to be in writing In compliance with s 2(1) of the Act.
[20]
The
relief sought in prayer 1 of the notice of motion, to declare the
orally agreed right of way as
"valid
and in full force'',
can therefore
not be granted. The relief sought in prayers 2 and 3 of the notice of
motion, being entirely dependent on a declaration
of validity, can
similarly not be granted. The application can therefore not succeed.
THE
ALLEGED CANCELLATION OF THE WRITTEN SALE AGREEMENT:
[21] The
1n applicant raises the 1
st
respondent's refusal to
provide him with a company resolution. The 1
st
respondent
in turn raises allegations of forgery of his signature on a company
resolution that was filed with the 3
rd
respondent. It is
debatable whether these allegations raise a real dispute of fact, or
whether they are at all relevant.
[22]
Subsequent to the conclusion of the sale agreement a dispute arose
between the 1
st
applicant and the 1
st
respondent, pertaining to the improvements and pertaining to the 1
st
applicant's alleged refusal to provide the 1
st
respondent
with documentation relating to the building project. The 1
st
respondent alleges in the answering affidavit, as follows:
“
...[D]espite
the applicant' s
(sic)
having enticed me
with the prospect of the Improvements, they have done little to
affect them. Despite starting the works in March
2016, the
renovations have not been completed since the applicants downed tools
in October 2016. As a result, my home has been
left in a dilapidated
and unlivable state for nearly two years.”
The 1
st
respondent
further alleges that the 1
st
applicant, in breach of the
sale agreement, failed to deliver certain documentation to the 1
st
respondent. The 1
st
respondent alleges that he cancelled
the sale agreement on 27 July 2018, because of the 1
st
applicant's failure to rectify his alleged breach, in accordance with
the 1
st
respondent's prior demand. The 1
st
respondent submits that there is therefore
"no need or right
for the applicants to access the Property".
[23] The
1
st
applicant disputes the allegations of breach and
cancellation. It was submitted on behalf of the applicants that it is
not necessary
to determine this dispute on the papers, because the
sale agreement is subject to an arbitration clause and these disputes
will
form the subject of arbitration . I am not persuaded. Even if I
am wrong in finding that the oral right of way is not valid, it
seems
to me that the validity of the right of way and the lawfulness of the
cancellation of the sale agreement, are Interrelated.
They cannot be
determined in isolation, as the applicants would have me do.
[24] The
1
st
respondent's version that the right of way was
contingent upon the 1
st
applicant complying with his
obligations in terms of the sale agreement and that the 1
st
respondent cancelled the sale agreement, cannot in my view be
rejected out of hand -
Plascon-Evans Paints Ltd v Van Rlebeeck
Paints (Pty} Ltd 1984 [3] SA 623 (A).
The timing of the alleged
cancellation may indeed be curious, but it is not appropriate to
resolve paper contests by reference to
the probabilities, however
tempting -
TIBMS (Pty) ltd t/a Halo Underground lighting Systems v
Knight and Another (JA29-2017)
[2017] ZALAC 59
; (2017) 38 ILJ 2721
(LAC) (18 October 2017)
at (29).
COSTS:
[25] I
have considered whether the 1st respondent is entitled to costs. Only
after my invitation to do so,
did counsel address the validity of the
oral right of way in the additional heads of argument, with reference
to the provisions
of the Act and the authorities. This matter should
have been disposed of earlier.
In
the result, the following order is made:
1.
The
application Is dismissed;
2.
The
applicants are ordered to pay the 1
st
respondent's costs, Jointly and severally, the one paying, the others
to be absolved, excluding the costs of the hearing on 2 May
2019 and
excluding the costs of the 1
st
respondent's heads of argument.
YVAN COERTZEN
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date
of hearing:
2 May 2019
Date
of judgment:
14 June 2019
Counsel
for the Applicants:
Adv. J C Erasmus
Instructed
by:
Van Jaarsveldt Attorneys
Counsel
for the Respondents:
Adv. M J Cooke
Instructed
by:
MDA Attorneys