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
>>
2016
>>
[2016] ZAGPPHC 137
|
|
Bondev Midrand (Pty) Ltd v Ndlovu and Others (47619/2014) [2016] ZAGPPHC 137 (7 March 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 47619/2014
DATE:
7/3/2016
Not
reportable
Not
of interest to other judges
Revised
In
the matter between:
BONDEV
MIDRAND (PTY)
LTD
Applicant
and
MATSHEDISO
NDLOVU
First
Respondent
MOMPATI
NEYBEZELA
BAIPHETHI
Second
Respondent
THE
REGISTRAR OF DEEDS,
PRETORIA
Third
Respondent
NQABA
GUARANTEE SPV (PTY)
LTD
Fourth
Respondent
DATE
OF HEARING: 15 FEBRUARY 2016
DATE
OF JUDGMENT: 07 MARCH 2016
JUDGMENT
MANAMELA
AJ
Introduction
and brief relevant background
[1]
The appellant, a property developer, sold Erf […] Midstream
Estate Extension 31 Township, Registration Division J.R.,
Province of
Gauteng (the property) to the first and second respondents (the
respondents) on 30 October 2009 for R499 000.
[1]
Transfer of the title to
the
property took place on 31 March 2010.
[2]
[2]
The property was at all material times an empty piece of land or
stand. The sale agreement and title deed contain a term or
condition
relating to the time or period within which the respondents were
required to erect a building on the property. I will
henceforth refer
to this term or condition as the building-period condition. The
building-period condition is contained in clause
10 of the sale
agreement, which reads as follows:
“
10.1 The PURCHASER
undertakes to erect the buildings on the PROPERTY to the reasonable
satisfaction of the SELLER
within EIGHTEEN (18) months of date of
proclamation
, failing which the SELLER shall be entitled (but not
obliged) to claim that the PROPERTY be retransferred to the SELLER at
the
cost of the PURCHASER against repayment of the original purchase
price to the PURCHASER, interest free.
10.2 The PURCHASER shall not
within the said period sell or transfer the property without the
SELLER’S written consent.”
[3]
[I
added the underlining for emphasis]
[3]
The title deed also contains the building-period condition, but with
a slight variation as to the commencement date of the building
period. Instead of referring to the date of proclamation (as in the
sale agreement), the title deed refers to a specific date.
It reads
as follows in the material part:
“
B SUBJECT to the following
condition imposed and enforceable by BONDEV MIDRAND (PROPRIETARY)
LIMITED (Registration Number: 2000/027600/07),
namely:
The Transferee or his Successors
in Title will be liable to erect a dwelling on the property within 18
(EIGHTEEN) months
from
7 December, 2007
,
failing which the Transferor will be entitled, but not obliged to
claim that the property is transferred to the Transferor at
the cost
of the Transferee against payment by the Transferor of the original
purchase price, interest free. The Transferee
shall not within
the said period sell or transfer the property without the
Transferor’s written consent. This period can
be extended at
the discretion of the Developer.”
[4]
[I
added the underlining for emphasis]
[4]
Evident from the above, is the fact that the building-period
condition expired around 07 June 2009. This was 18 months from
07
December 2007.
[5]
Be that
as it may, this was clearly even before the sale agreement was
concluded or transfer took place.
[6]
The applicant and respondents (jointly, the parties) extended the
building period by agreement concluded on 12 March 2010
(the
extension agreement).
[7]
[5]
The extension agreement was subject to terms or conditions (in the
form of “undertakings”, “acknowledgements”
and “understandings” by the respondents), as follows:
“…
hereby
acknowledge
that I am aware that:
1.
The original building
period namely 18 (EIGHTEEN) months after proclamation expired on 30
June 2009
2. Bondev is entitled to purchase
the stand back, at the original selling price which Bondev sold the
stand for.
3. There are Aesthetical rules
for Midstream Estate.
4.
The constuction [sic]
period is 9 months.
5. Extra levies will be imposed
by the Midstream H.O.A should the original building period be
exceeded.”
I
undertake
to:
1. Immediately proceed with the
preparation of building plans and
lodge building plans within 45
calender days hereof
at the Aesthetical Committee.
2. Appoint a building contractor
within 80 days hereof.
3. Supply Bondev with a monthly
building programme within 80 days hereof.
4.
Complete construction
within 12 months hereof
.
I
understand
that this
agreement does not negate or affect:
1. Bondev’s rights in terms
of the original Offer to Purchase and the Title Deed.
2.
The decision of the
Home Owners Association to charge an extra levy.”
[8]
[I
added the underlining for emphasis]
Applicant’s
submissions
[6]
The applicant contends that the respondents did not comply with the
building-period condition, as stipulated, in the sale agreement
and
extension agreement due to their persistent failure to erect a
building on the property. Consequently, the applicant seeks
an order
for the re-transfer of the property against refund of the purchase
price paid by the respondents, but without interest.
This is in terms
of the sale agreement and also contained in the title deed, as stated
above.
[9]
[7]
The applicant further submits that the building-period condition is
not unique to the respondents and was in fact imposed on
all buyers
of property in the Midstream Township comprising 60 townships and
approximately 4500 residential stands.
[10]
The condition is a
lex
commissoria
[11]
ensuring
retransfer of the property back to the applicant as a developer in
order to, among others, ensure safety and security of
the entire
establishment, which has own shopping centres and schools.
[12]
Evidently, the application is opposed by the respondents.
Respondents’
defences and counterclaim (and analysis thereof)
[8]
The respondents did not only oppose the application, but also
launched counterapplications. The initial counterapplication was
technical in nature and for the dismissal of the main application due
to issues relating to service of the applicant’s papers.
[13]
This counterapplication was withdrawn by agreement between the
parties.
[14]
The subsequent
counterapplication was for the applicant to be directed “to
consent to and to perform all ancillary and incidental
duties
required to give consent to a validly concluded written offer
concluded by the Respondents and presented to it for the requisite
consent”, and costs of the counterapplication.
[15]
Both, the main application and counterapplication were heard on 15
February 2016, when I reserved this judgment.
[9]
The respondents’ answer to the founding papers is incorporated
in the counterapplication. The counterapplication is also
opposed by
the applicant. Although not crafted in the most elegant of ways, I
understand the relief sought in terms of the counterapplication
to be
a
mandamus
or
final interdictory relief. Apart from what is stated above,
[16]
the respondents seek various reliefs in terms of the
counterapplication and raise several defences in opposition of the
relief
sought by the applicant in the main application. All these are
not phrased in the alternative and therefore, the result is endless
contradictions. Therefore, I will make use of subheadings to improve
presentation.
Waiver
of rights to enforce building-period condition
[10]
The respondents contend that the appellant waived its rights to
enforce the building-period condition at the time the agreement
was
concluded on 30 October 2009. By then, the submission goes, the 18
months’ period from date of proclamation, being 07
December
2007
[17]
had elapsed. Taking
the merit of the submission at face value for a moment, the
submission is however not reconcilable with the
purpose and import of
the extension agreement
[18]
entered into by the parties. The respondents could be said to be the
ones that waived its rights in terms of the sale agreement,
not the
other way round. I will deal with this further below.
Date
of proclamation and impossibility of performance
[11]
The respondents submit that they were all along unaware of the date
of proclamation until when they were busy with preparation
of their
papers in these proceedings. They further submit that, because no
date of proclamation was fixed in the sale agreement,
performance in
respect of the building-period condition, was impossible. I hasten to
point out that there is no merit in this submission.
When the
property was transferred, which is the only stage from which the
respondents could have complied with the building-period
condition,
the title deed clearly stipulated that the building period was 18
months from 07 December 2007.
[19]
It also doesn’t make any difference whether or not the
respondents were unaware of the condition relating to date of
proclamation,
because of the subsequent events.
[12]
A slight variation of the above submission by the respondents is
that, the building-period condition was impossible to comply
with, as
the respondents only took transfer on 31 March 2010, when the
building period had already elapsed. However, this submission
is
incorrect. The building period had already been extended on 12 March
2010 before the property was transferred on 31 March 2010.
The
corollary of this is that, the respondents actually had a choice to
stop the transfer or resile from the sale agreement, if
they were
unhappy with the date of proclamation revealed in the transfer
documents, assuming such would have constituted a valid
reason for
doing so under the circumstances. There was in fact an earlier
opportunity, just before the extension agreement was
concluded, to
resile from or rectify the sale agreement. It is common cause that
the respondents did neither.
Express,
implied or tacit agreement to extensions of the building-period
[13]
The respondents submit in this regard that, there was a further
extension other than the extension in terms of the extension
agreement (of 12 March 2012) when the building period was extended
from 12 March 2010 by another 12 months. The origin of this
submission is the following. The extension agreement contained a
condition that the Midstream Homeowners Association (Midstream
HOA)
will impose penalties in the form of extra levies, should the
respondents not construct a building on the property within
the
period of extension. The respondents argue that, since the extra
levies were imposed by Midstream HOA and paid by them (i.e.
the
respondents), there is therefore compliance with this new extension
agreement.
[20]
This submission
was also belaboured by counsel for the respondents, Mr MC Makgato, at
the hearing of this matter. I find no merit
in this argument. The
respondents did not show that the applicant charged or received the
penalty levies or any levies at all,
from payment made by the
respondents. The Midstream HOA is clearly another entity, with which
the respondents have a relationship
complementary, but not the same,
to the one with the applicant. Therefore, the respondents should take
the issue of payment of
the extra levies or penalties up with the
Midstream HOA, to the extent that, they feel legally entitled to.
[14]
Still on the issue of penalty levies, Mr Makgato, on behalf of the
respondents, could not provide a direct response to my question
whether or not the imposition of penalties was the only condition or
term of the extension agreement. It clearly was not. As set
out above
there were other conditions.
[21]
Chief, amongst these, was the erection of a building or dwelling on
the property. This requirement was staggered in progressive
steps or
phases in the extension agreement. For example, it required the
immediate preparation of building plans; lodgement of
building plans
within 45 calendar days to the Aesthetical Committee; completion of
construction within 12 months.
[22]
It is common cause that upon the expiry of the period of 12 months
stipulated in the extension agreement, the respondents had not
erected a building on the property. The respondents do not dispute
this. In fact they admit that they had not met the building-period
condition, but somewhat allege a further agreement with the
applicant.
[23]
I deal with the
latter contention next.
[15]
Considering the respondents’ conduct to constitute a breach of
the agreement, the applicant demanded compliance with
the
building-period condition through a letter dated 23 October 2013.
[24]
The respondents responded through an electronic mail on 12
November 2013. They admitted the delay but explained that this
was
mainly due to financial problems on their part. They undertook to
start building by January 2014.
[25]
[16]
A certain Mr. Gert Jansen van Vuuren (Mr. Jansen van Vuuren) of the
applicant responded to the electronic mail from the respondents.
Mr.
Jansen van Vuuren requested the respondents to keep him “abreast
of the developments of [sic] this property”.
[26]
The respondents argue that this amounted to another extension
agreement. They submit that they complied with the terms of this
extension agreement by keeping the respondent or Jansen van Vuuren
informed of the progress.
[27]
Mr NJ Horn, counsel for the applicant, submitted that, even if Mr
Jansen van Vuuren’s communication could be accepted as
another
extension, the respondents failed to provide any updates or
information as to progress, over a long period. I agree. On
the
respondents’ own version, they have actually not kept the
applicants abreast of developments or kept their undertakings
particularly to start building in January 2014.
[17]
Further, Mr Makgato for the respondents, could not give a clear
answer, if anything, to my question whether or not the alleged
extension by Mr Jansen van Vuuren was indefinite or open-ended. But,
there is no other logical conclusion possible here, than that
there
was no further extension precipitated by Mr Jansen Van Vuuren’s
electronic mail. At most, Mr Van Vuuren was merely
been receptive or
even empathetic of the respondents’ plight.
Requirements
of building laws and regulations
[18]
The respondents further raised other defences based on building laws
and regulations, and how these affected the non-erection
of a
dwelling on the property. They submit that they could not build
without approved plans for fear of consequences of non-compliance
with the applicable laws or regulations. Clearly, this does not avail
the respondents. The respondents cannot delay or fail to
submit, for
approval, the required plans to the municipal authority and turn
around to use this failure or delay as a defence against
contractual
claims by the applicant. Compliance with building laws and
regulations is attendant requirement of erection of a dwelling
on the
property. It has always been foreseeable that for the respondents to
erect a dwelling on the property, they have to do so,
in compliance
with applicable laws.
Counterapplication
(Offers from prospective purchasers and
consent by the applicant)
[19]
Of relevance to the counterapplication, the respondents submit that
they had an offer from prospective purchasers in respect
of the
property. They argue that despite the offers, the applicant refused
to consent to the sale.
[28]
They further submit in this regard that they are still receiving
offers from interested purchasers, but the applicant unreasonably
withholds consent to the sale, despite demand. They consequently ask
this court to grant mandatory interdict in terms of which
the
applicant is compelled to consent to the offers. No further details,
as to the amounts or terms and conditions of such offers,
including
how these offers will navigate the expired building-period condition,
are proffered by the respondents. I don’t
find this surprising.
It is really doubtful that purchasers will be interested, unless the
applicant not only consent to the sale,
but agrees to extend the
building period, as well. These are matters within the prerogative of
the applicant.
Applicable
legal principles
[20]
I am indebted to counsel for the authorities cited in their heads of
argument
[29]
on some of the
issues discussed hereunder.
[21]
I have already comprehensively dealt with and ruled against the
existence of a further extension agreement (allegedly by Mr
Jansen
van Vuuren of the applicant), apart from the extension agreement of
12 March 2010. I deal next with the other defences under
separate
subheadings below, although I have already dealt with some aspects
hereof.
Waiver
of rights to enforce building-period condition
[22]
It should be remembered that the respondents argue that the applicant
has lost the right to enforce the building-period condition,
due the
lapse in time. In
Mahabeer
v Sharma NO and Another
[30]
which also dealt with sale of land, the following was said by the
court regarding waiver of a right:
“
Apart from the law
relating to prescription, there is no principle of South African law
of which I am aware that justifies a conclusion
that a right may be
lost through mere delay to enforce it and no reason exists for
holding otherwise in the case of the right to
cancel an
agreement.”
[31]
[23]
I agree with the above
dicta
in
Mahabeer
.
Therefore, I consider the defence of waiver not to be meritorious.
Besides, even if the principle was to the contrary, there is
no
evidence establishing waiver by the applicant. The respondents bore
the necessary onus in this regard.
[32]
Available evidence clearly paints a picture, so to say, of a
developer quite resolute to enforce its rights.
Date
of proclamation and impossibility of performance
[24]
The further defence by the respondents is one of existence of
impossibility of performance, due to the building-period condition
of
18 months from the date of proclamation, being 7 December 2007 having
elapsed by the time the sale agreement was concluded.
As indicated
above,
[33]
this is defeated by
the terms of the extension agreement, which are clearly under no
attack from the respondents. The respondents
acknowledged the date of
proclamation in the extension agreement.
[34]
[25]
However, the lapse in the building period does not assist the
respondents as they remain in
mora
of
the condition, through which their title to the property is
limited.
[35]
In the unreported
decision of this division in
Bondev
Developments (Pty) Ltd v Mosikare and Others
,
[36]
Du Plessis J held that, that the period for construction of a
building had expired does not mean that there is no longer a building
time limit. It means that when the purchaser took transfer he was
already in
mora
in respect of the obligation to build, the learned judge
continued.
[37]
I agree.
Therefore, I find in this regard that there was no impossibility of
performance which excused the respondents from complying
with the
building-period condition or which, as submitted by the respondents,
avoided the contract between the parties.
[26]
Therefore, I find no merit in any of the defences put forward by the
respondents against the applicant’s claim for retransfer.
Offers
from prospective purchasers and consent by the applicant
[27]
This subheading constitutes the crux of the counterapplication. The
respondents submitted that they had received an offer to
purchase the
property, in respect of which the respondent withheld consent. This
offer has since expired. Therefore, if anything
there is nothing for
the applicant to consider in this regard.
[28]
The respondents further allege that, they “are still receiving
offers from other interested buyers who make the offer
on condition
that the applicant consents to the sale”.
[38]
There is no proof of these offers or their further details, even if
one was to consider their review warranted, which is actually
not.
This court cannot be expected to direct a party to consent to
something which is completely unknown or has not materialised.
Conclusion
[29]
Be that as it may, the respondents have no right to compel the
applicant to consent to the offers made save where the respondent
is
conducting itself contrary to the law. Therefore, the respondents
have failed to establish a right or clear right, which is
one of the
requirements for an interdict.
[30]
Also, as submitted by Mr Horn for the applicant, the respondents, to
the extent that they may be so advised, can apply for
the removal of
the restrictive condition. This clearly constitutes an alternative
remedy to the one currently sought by the respondents.
The
counterapplication also fails to meet this requirement. Therefore,
there is no need to deal with the rest of the submissions
and
requirements.
[31]
The respondents are clearly in breach of the agreement with the
applicant. Therefore, the applicant is entitled to exercise
the
option for a re-transfer of the property back from the respondents.
The rest of the relief sought, including as to costs, is
ancillary,
although it is in terms of the agreement between the parties. The
order will also make provision for a possibility that
there may be
lack of cooperation or compliance by the respondents.
[32]
In the result, the following order is made:
1.
the first and second respondents are ordered to
take the necessary steps reasonably required for the re-transfer of
Erf […]
Midstream Estate Extension 31 Township, Registration
Division J.R., Province of Gauteng; measuring 900 (nine hundred)
square metres
and held by Deed of Transfer T019046/2010 (the
property) to the applicant;
2.
the first and second respondents are to bear the
costs associated with the order in 1 hereof;
3.
the applicant is to pay to the first and second
respondents the amount of R499 000.00 (four hundred and ninety
nine thousand
rand) against transfer of the property in terms of the
order in 1 hereof;
4.
the first and second respondents are directed to
sign all documents and take all steps reasonably required to give
effect to the
order in 1 hereof, within a period of 7 days from date
of such request by the applicant and/or on behalf of the applicant.
5.
should the first and second respondents refuse
and/or fail and/or neglect to sign the relevant documents to give
effect to the order
in 1 and 4 hereof, then the Sheriff or Deputy
Sheriff of this court is authorised and directed to sign all
necessary documents
on their behalf for the transfer of the property
against payment of the amount of R499 000.00 (four hundred and
ninety nine
thousand rand), less costs payable to the Sheriff;
transfer fees; clearance fees at the local authority and the relevant
Homeowners
Association in respect of the transfer or the fourth
respondent, to discharge any indebtedness in respect of the bond
secured over
the property.
6.
the applicant is entitled to have this order
registered by the third respondent.
7.
the orders in 1 to 6 hereof are without prejudice
to the rights of the fourth respondent as bondholder over the
property.
8.
the first and second respondents are ordered to
pay costs of this application.
9.
the counterapplication by the first and second
respondents is dismissed with costs.
_____________________________
K.
La M. MANAMELA
Acting
Judge of the High Court
07-March-2016
APPEARANCES
:
For
the Applicant : Adv. NJ Horn
Instructed
by : Tim du Toit & CO. Inc, Pretoria
For
the 1
st
and 2
nd
Respondents : Adv. MC Makgato
Instructed
by : Maduna Olifant Attorneys, Johannesburg
c\o
Maphoso Mokoena Inc, Pretoria
[1]
See par 10 of the founding affidavit on indexed p 8; annexure “B2”
(i.e. a copy of the sale agreement/offer to purchase)
on p 16
onwards.
[2]
See par 12 of the founding affidavit on indexed p 8; annexure “B3”
(i.e. a copy of the title deed) on p 20 onwards.
[3]
See par 14 of the founding affidavit on indexed pp 8-9; annexure
“B2” on indexed p 18.
[4]
See par 14 of the founding affidavit on indexed p 9; annexure “B3”
on p 22.
[5]
In the founding papers and the extension agreement referred to in
pars 4 and 5 below, the date of expiry of the building-period
condition is said to have been 30 June 2009, which is clearly an
inadvertent error. However, nothing turns on the materiality,
if
any, of this.
[6]
See par 1 above.
[7]
See pars 16-21 of the founding affidavit on indexed pp 10-11;
annexure “B5” on p 41.
[8]
Ibid.
[9]
See pars 2-3 above.
[10]
See pars 5-9 of the opposing affidavit to the counterapplication on
indexed pp 233-234.
[11]
A
lex commissoria
is
explained as follows in Du Bois F (ed)
Wille’s
Principles of South African Law
9th
ed (Juta Cape Town 2007) at p 860:“…the creditor may
cancel the contract if ‘time was of the essence of
the
contract’, or was made so by a notice of rescission. Time is
of the essence when the parties expressly or impliedly
agreed that
default of performance by the day fixed would entitle the other
party to cancel the contract. An express clause
to this effect
is known as a lex commissoria.” [the aforesaid is quoted
without references]
[12]
See pars 8-9 of the opposing affidavit to the counterapplication on
indexed p 234.
[13]
In terms of the initial counterclaim, the respondents contended that
the sheriff only served the notice of motion, without the
rest of
the papers and relied on the sheriff’s return in this regard.
This counterapplication was later withdrawn
by agreement, with each
party responsible for its own costs. See indexed pp 47 - 67.
[14]
Ibid.
[15]
See indexed pp 68-69.
[16]
See par 8 above.
[17]
The respondents inadvertently refer to 14 November 2007 [on indexed
p 75]. See indexed p 25 and par 3 above.
[18]
See pars 4 and 5 above.
[19]
See par 3 above.
[20]
The
submission, with respect, confuses the different role-players
herein. Levies are paid to the Midstream Homeowners Association
of
which the respondents are automatic members as owners of the
property. Equally, there are also payments made to the Ekurhuleni
Metropolitan Council in the form of rates and taxes. The applicant
as the developer has a different role from the aforesaid two
organisations. See the unreported decision by Gildenhuys J of 22
February 2006 in this division of
Lodhi
2 Property Investments CC and another v Bondev Developments (Pty)
Ltd
,
case number 8878/2005at par 12.
[21]
See par 5 above.
[22]
Ibid.
[23]
See pars 15 - 16 of the affidavit in support of the
counterapplication on indexed pp 76-77; annexure “MN3” -
“MN5”
on pp 99-144.
[24]
See par 20 of the affidavit in support of the counterapplication on
indexed p 78; annexure “B6” on pp 42-43.
[25]
See pars 21-22 of the affidavit in support of the counterapplication
on indexed pp 78-79; annexure “B7” on p 44.
[26]
See par 22 of the affidavit in support of the counterapplication on
indexed p79; annexure “B7” on p 44.
[27]
See par 23 of the affidavit in support of the counterapplication on
indexed pp79-80.
[28]
See annexure “MN14” to the counterclaim on indexed pp
161-164.
[29]
Supplementary heads of argument were handed up by counsel on behalf
of the respondents at the hearing of this matter.
[30]
1985 (3) SA 729 (A).
[31]
Mahabeer v Sharma NO
and Another
at
736D-F.
[32]
See
Hepner v
Roodepoort-Maraisburg Town Council
1962
(4) SA 772
(A) 778E relying on and confirming older authorities.
[33]
See par 12 above.
[34]
The
respondents acknowledged that “The original building period
namely 18 (EIGHTEEN) months after proclamation expired on
30 June
2009”. See par 5 above.
[35]
See the
unreported decision of this division in
Bondev
Developments (Pty) Ltd v Mosikare and Others
,
Case Number: 50391/08 on par 17 on p by Du Plessis J on 22 April
2010.
[36]
Bondev Developments
(Pty) Ltd v Mosikare and Others
on par 17. This decision was deviating from an earlier decision,
also of this division, by Fabricius AJ (as he then was) in
Bondev
Developments (Pty) Ltd v Plenty Properties 60 (Pty) and Others,
Case
Number: 43602/08 delivered on 01 December 2009. I had an opportunity
of reviewing both decisions for purposes of a decision
of this
division I handed down on 21 September 2015 in the matter of
Bondev
Midrand (Pty) Ltd v Letsholo and Others
,
Case Number: 59/2014.
[37]
See
Mosikare
at
second para from above on p 8
.
[38]
See par 40 of the founding affidavit to the counterapplication on
indexed p 85.