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[2016] ZAGPPHC 600
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Bondev Midrand (Pty) Limited v Ramakgoba and Others ; In re : Bondev Midrand (Pty) Limited v Pulling Pulling (72637/2013 ; 7819/2014 ; 58/2014) [2016] ZAGPPHC 600 (14 April 2016)
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Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
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Policy
I
N
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
In
the matter between:
Case Number:
72637/2013
DATE:
14 APRIL 2016
BONDEV
MIDRAND (PTY) LIMITEDApplicant
and
PETRUS
KGOSI RAMOKGOPA
First Respondent
THE
REGISTRAR OF DEEDS, PRETORIA Second
Respondent
NEDBANK
LIMITED
Third Respondent
In
the matter between
Case
Number: 58/2014
BONDEV
MIDRAND
(PTY) LIMITEDApplicant
and
PULING PULING First
Respondent
TAPIWANASHE Second
Respondent
PULING THE REGISTRAR OF
DEEDS Third Respondent
FIRSTRAND BANK
LIMITED Fourth Respondent
JUDGMENT
ON LEAVE TO APPEAL
MAKHUBELE
AJ
INTRODUCTION
[
1 ] The applicant in the two matters, Bondev Midrand (Pty) Limited is
one and the same entity and is a property developer. It
instituted
application proceedings against the respondents and sought similar
orders; namely; to compel the first respondent ("Ramokgopa")
in case number 72637/2013 ("Ramokgopa matter") and the
first and second respondents ("Puling Puling") in case
number 58/2014 ("Puling matter") to re-transfer to it
certain property , being vacant stands (erfs) that they purchased
from it in a township development known as Midstream Estate
[Extension 2…, Registration Division J.R, Gauteng held by
deeds
of transfer Tl 8…/2007 and T60../2007] respectively. The
re-transfer was sought against payment of the original purchase
price
paid for the relevant erfs.
[2]
Ramokgopa and Puling opposed the applications. Ramokgopa
raised
one defence
only, a
special plea
of
prescription
in
terms of
the
provisions
of section
10(
1) read
with 1 1
(d)
of
the
Prescription
Act,
68
of
1969.
Puling also
raised the
same
special
plea,
but went
further
and
raised
certain
defences on the merits of the claim. The arguments
[1]
on the special
plea
were heard
together
and
after
hearing
argument, I
upheld
the
special
plea
in the
both
matters.
The
reasons
for
my judgment
which only
dealt
with
the
special
plea
were
captured
in
the
judgment of
the
Ramokgopa
matter and
confirmed in the
Puling
matter.
[2]
[3]
In this application, the applicant seeks leave to appeal certain
parts of my judgments (and the whole orders ) delivered on
27 October
2015. The parties are referred to as they were cited in the main
application. There was no appearance for Ramokgopa
when the
application for leave to appeal was heard. However, a representative
of his attorneys of record was present in court.
The parties accepted
that the outcome of this application for leave to appeal is binding
in the both matters.
THE
NOTICE AND GROUNDS OF APPEAL
[4]
According to their respective Notices , the applicants seek leave to
appeal
"
against
certain
parts
of
the judgment
and
the
whole
of"
my orders.
However, they did not identify the relevant paragraphs in the
judgments, which is problematic because certain "findings"
attributed to me were not findings, but merely restatement of
submissions made by the parties.
Findings
[5]
The
findings
on which
leave
to
appeal
is
sought
are,
save
for
one
item
[3]
, identical
in
the both
applications.
I
proceed to
quote from the application
in the
matter
of
Ramokgopa.
"
I.
The finding
of
fact
that
the
title condition
in
favour
of the
applicant
does
not
limit
the
first
respondent
'
s
right
of ownership
in the property
or
subtracts
from
the
first
respondent 's
dominium
in
the
pro
pert
y.
2.
The
finding
of
law
that
the
applicant
'
s
right
to claim
retransfer of
the
property
in terms of
the title condition
is not
a
real right, but
a
personal right that
was
registrable in terms of the provisions of section
63
of
the
Deeds
Registries
Act
47
of
1
937
(
,,the
Deeds Registries Act" )
3.
The finding
of
law
that
the
applicant' s right
to
claim
retransfer of the
property
in
terms
of the
title
condition
does
not
constitute
a
personal
servitude.
4.
The
finding of
law that
the
applicant
'
s
claim
for
retransfer
of
the property
constitutes
a
debt
as
contemplated in section
II
of
the Prescription Act 68 of
1
969
(
,,the Prescription Act"
).
5.
The
finding
of
law that
the
applicant
'
s
claim
for
retransfer
of the
property had
become
prescribed 3
years
after
expiry
of
the
1
8
month
period
referred to
in
the
title
condition.
[6]
In the Puling application
[4]
,
the
following finding was
added;
"I.
The
finding
of
Jaw
that
the
title
condition
will
only
be
binding
on
subsequent owners if the
applicant enters into
further agreements
with such
owners"
.
Grounds
of
appeal
[7]
Except for issues arising from paragraph [6 ] above, the remainder of
the grounds of appeal in the both matters is also identical
and in
the main, they are argument and criticisms of the findings made by
the court and in certain instances incorrect analysis
of the
findings. For this reason, I will only confine myself to the findings
that were identified during oral argument and only
in as far as they
are indeed findings, and not counsel's interpretation of the
judgment.
[8]
There
is
ample
authority
to the
effect
that
the notice for leave and grounds
thereof
must
be
set
out
in
succinct
and
unambiguous
terms
for
it
to comply
with
the
requirements
of
Rule 49(
l)
(b)
.
On whether
the
notice of
leave and
its contents
complied
with the
requirements
of
Rule 49(
1
)
,
Leach
J
had the
following to say in
the matter
of
Songono
v Minister of Law and Orders
[5]
,
"In
attempted compliance therewith the applicant filed
a
document
headed
'Application
for
Leave
to
Appeal' ,
in
which
he
purported
to
set
out
the
grounds upon
which leave
to appeal
was
to be sought.
These so-called
'grounds '
constitute
a
diatribe
of
some
1
7
pages
criticizing
the
judgment,
analysing
(at times
incorrectly)
certain of
the
evidence
and
the
findings
made,
putting
forward
certain submissions
and
quoting
various authorities.
This
lengthy, convoluted
and
at
times disjointed
criticism of
the
judgment did not clearly and succinctly spell out the
grounds
upon which
leave
to
appeal
is
sought
in
clear
and
unambiguous terms
-
indeed,
it
served
more
to
deceive,
particularly
as,
during
course
of
argument,
there
were several
points
which applicant'
s
counsel,
M
r Bursey, sought
to
raise which
were not indicated
in the do
c
ument.
I am
not
aware
of
any
judgment dealing specifically with
grounds
of appeal as
envisaged by Rule
49( l
)
(b);
however, Rule
49(3) is
couched in
similar
terms upon
which
the appeal
is
founded' .
In regard
to
that sub-rule
it is
now
well established that
the provisions thereof
are
peremptory
and
that
the
grounds
of
appeal
are
required,
inter
alia,
to
give
the respondent
an opportunity
of
abandoning
the judgment, to inform
the
respondent
of
the case he has
to
meet
and
to notify
the Court of
the
points
to be raised.
Accordingly,
insofar
as
Rule
49(3)
is
concerned,
it
has
been
held
that
grounds
of
appeal
are
bad
if
they
are so
widely
expressed
that it leaves
the appellant
free
to canvas
every
finding
of
fact
and
every
ruling
of
law
made
by
the
court
a
quo,
or
if they
specify
the
findings
of
fact
or
rulings
of
law
appealed
against
so
vaguely
as
to
be
of
no
value
to
either
the
Court
or
the respondent,
or
if
they, in
general,
fail
to specify
clearly and
in
unambiguous terms
exactly
what
case
the
respondent
must
be
prepared
to
meet
-
see,
for
example,
Harvey
v
Brown
1964
(3)
SA 381
(E)
at 383; Kilian
v
Geregsbode,
Uitenhage,
1980
( 1
)
SA
808 (A) at 815 and Erasmus Superior Court Practice
B
l -356-357 and the various authorities
there
cited.
It
seems
to me
that, by parity
of
reasoning,
the grounds
of appeal required
under
Rule 49( I
) (b)
must
similarly
be clearly
and succinctly
set out in clear and
unambiguous
terms
so as
to
enable the Court and the respondent
to
be
fully and
properly
informed
of
the
case which the
applicant seeks to make
out and
which
the respondent
is to meet
in
opposing
the
application
for
leave
to
appeal.
Just
as Rule 49(3) is
peremptory in that regard, Rule 49( I
) (b)
must
also be
regarded
as
being
peremptory.
In
my
view
the
lengthy
and
rambling
notice
of
appeal
file in
casu falls woefully
short of what is required.
Mr
Bursey suggested
that
grounds of
appeal
could
be
gleaned
from
the
notice
but
that
is
not
the point
-
the point
is
that the notice must clearly
set out the grounds
and it is
not for
the Court
to
have
to
analyse
a
lengthy document in
an
attempt
to
establish what
grounds the
applicant intended
to
rely
upon but did
not
clearly set out.
On
this basis
alone the
application seems
to me to me
fatally
defective and must be dismissed."
[9]
I now proceed to summarize the grounds of appeal and where necessary
highlight whether indeed there is such a finding or not.
The
applicants contend that I erred by;
[9.1]
making a finding that the only limitation of ownership imposed by the
title condition is the prohibition against selling
the property
within the period of 18 months.The applicant chose one aspect of
the findings I made after a somewhat detailed
analysis of the title
condition in question. I did not make a finding that this is the
ONLY limitation.
[9.2]
making a finding that the applicant 's right was personal in nature
but registrable in terms of section 63 of the Deeds
Registries
Act.The issue about registration of personal rights is dealt with
in the proviso to section 63( 1 ) of the Deeds
Registries Act. The
applicant'scounsel in his heads of argument chose to ignore this
proviso, which I found to be very important.
[9.3]
holding that the distinction between Condition B (in favour of the
applicant
)
and Condition C (in favour of the Home
Owners Association) is that the latter extends into perpetuity
whilst the former does not.
[9.4]
making a finding that the applicant is required to exercise its
discretion
"
with
regard
to
certain
matters
that
could
see
the
condition
existing
beyond
the
1
8 months
period"
within the said 18 month period.
[9.5]
relying on the judgment of Road Accident Fund and Another v Mdeyide
201
1 (2) SA 26
(CC) to support a contention that the applicant' s
claim constitute a debt for purposes of prescription.
[9.6]
Relying on the broad meaning afforded to the term "debt"
for purposes of determining the nature of the applicant'
s right.
It
is contended that I should have relied on the two requirements as set
out in the Supreme Court of Appeal decision in the matter
of Willow
Waters Homeowners Association (Pty) Ltd
2015 (5) SA
304
("Willow Waters judgment") to make a finding that
"
an obligation
that may
otherwise
conform
to the
broad
definition
of
"debt"
is
servitudinal in
nature"
if
it meets the two requirements set in that decision"
[9.7]
relying on the decisions of Barnett and Others v Minister of Land A f
fairs and Others 2007 f
6) SA 313
and Leketi v Tladi NO & Others
[201O]
3 ALL SA 519
. These decisions were overturned by the Supreme
Court of Appeal on 28 May 2015 in Absa Bank Ltd v Keet
2015 (4) SA
474
(SCA) at para [26]. In para [23] , the SCA found that "an
obligation
in respect
of
a
personal
right
does
not
consist
of
causing
something to
become
the
creditor
's property"
This
allegation is completely misleading. I will deal with it later on.
[9.8]
in finding that the applicant ' s claim of the property is "
not
a
personal
servitude
and
therefore
a
limited real right in
respect
of
which
the
prescription
period
is
30 years
as
provided
for
in
section
7
of
the Prescription
Act" .
[1O]
With regard to the additional ground of appeal in the Puling matter;
it is alleged that the court erred in finding that
"
the
title
condition
will
on
l
y be binding on
subsequent
owners if the applicant enters
into
f
urther
agreements with
such
owners".
The
argument is that this finding is wrong because the
"
title condition
expressly
provides that
it
binds
successors
in
title"
and because I made a finding in the Ramokgopa
judgment that
"one of the characteristics
of
the
present title
condition
in
favour of
the
applicant
is
that
it
is
binding
on
successors in title"
.
The
characteristics in question are not my findings, but what the
condition in question purports to provide for. The reason for
interpretation is to determine whether on a proper construction , the
condition should bind successors in title or not.
Grounds
of appeal tendered
during oral submissions
[1
1] The grounds of appeal tendered during argument focused on two main
issues, namely; that
[
1 1
.1]
Mr Horn
argued
that
certain
findings
I
made are in
contradiction
with
the
judgment
of
Du Plessis
J
in
the
matter
of
Bondev
Development (Pty) Ltd v Mosikare and Others
[6]
(
"Mosikare
judgment")
which I
should have
followed.
The
finding in question relates to the fact that the condition limits
ownership. In my view, agreeing on this issue does not mean
that I
should follow the conclusion reached by Du Plessis J. In my
judgment, I found that such limitation of ownership is only
for a
limited period, namely, the first 18 months. Du Plessis J appears to
think that the limitation is in perpetuity because
according to him,
subsequent buyers , even those who purchase the property after the
expiry of the 18-month period are in mora
and must build the dwelling
within a reasonable time. The period of limitation of ownership is
important.
The
applicant contends that there are now two conflicting judgments on
the issues that were before me and Du Plessis J, and on
this ground
alone, leave to appeal should be granted to the Supreme Court of
Appeal to resolve this conflict. I do not agree.
[
1 1
.2]
The
applicant
contends
that I
relied
on
decisions
of Barnett and
Others
v
Minister
of
Land
Affairs and
Others
[7]
("Barnett
")
and
Leketi v
Tladi
NO and
Others
[8]
(
"Leketi")
that
were
overturned
by the
Supreme
Court
of
Appeal in
the
matter
of Absa
Bank
Limited v Keet
[9]
(
"Keet
judgment") .
For
this reason alone, leave to appeal should be granted to the Supreme
Court of Appeal.
I
will deal with this ground of appeal later on.
ORAL
SUBMISSIONS
Applicants
[12]
As I have already indicated above, the submissions during argument
were centered around two issues; (a) the conflict between
my judgment
and the judgment of Du Plessis J in the Mosikare judgment and
(b) reliance on the
Barnett and Leketi decisions that have been overturned by the Supreme
Court of Appeal in the Keet judgment.
[13]
Mr Horn argued that I should have applied the judgment of Du Plessis
J to determine the nature of the right in the title condition.
Du
Plessis J found that the right in the title condition limits
ownership and binds successors in title.
[14]
He
argued
further
that
paragraph
60
of
my judgment
in
the
matter
of
Puling
Puling
where
I
stated that:
"[60]
have also considered the judgments
[10]
in this
division
where
applications
for
re-transfer
of
properties
were
either
granted
or
ref
used.
I
agree
with
respondents'
counsel's
submissions
that
it
would
only
be
binding
on
subsequent
purchasers
if
the transferor enters into further agreements with them.
This
was
the
rationale
of
the
decisions
in
the
judgment
of
Dodson
AJ
in
the
matter
of
Bondev
V
Rasalanavho
[11]
•
This
i
s
in
line
with
Section
68
of
the
Deeds
Act.
It
is
also
a
sensible
reading
of
the
title
condition
because
,
as
I
have
already
stated,
the
restrictions
with regard
to
selling
and
transfer
to
third
parties
only
apply
within
the
1
8
month
period"
is
in
conflict
with
what
Du
Plessis
J stated
in
page
7
of
his
judgment
that
"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"
[
15] It was
further
contended
that should
have
found
that
the
condition
in question
is a
real right
as
the
Supreme
Court
of
Appeal
did in the
Willow
Waters
judgment
[12]
.
[16]
Furthermore, it was argued that my reliance on Barnett and Leketi
decisions in paragraphs 66 and 68 of my judgment in the Ramokgopa
matter is enough reason to justify leave to appeal to the Supreme
Court of Appeal.
[
17] The Barnett and Leketi decisions were overturned by the Keet
judgment in paragraph 26 where the following was stated.
[26]
I am aware that we
are differing
from
a
view
that
has been expressed in
three
judgments of
this court,
albeit in my
view
none
of
those
decisions
was
dependent upon
the
correctness of that
view for
the
ultimate
result.
However,
to
the
extent
that
this
view
could
be
seen
as
the
ratio
decidendi
of
those
decisions,
I
would
hold that
it was
incorrect. I am aware
of
the
restricted basis upon
which this
Court
departs
from
its
earlier
decisions,
but
am
of
the
view
that
this
is
one
of
those rare
cases
in which it is
appropriate
to
do
so. First,
the decision
(Barnett)
is of
reasonably
recent
origin
so it cannot
be said
that people have organised
their affairs on the
basis that
it was correct.
Second,
the
author of
the decision has indicated
that
it
should be
reviewed
by this
Court.
Third,
the
perpetuation of
that
view gives
rise
to
absurdity in
the
construction of an
important
statute
and would
cause
uncertainty
in
a
multitude
of
relationships.
[18]
The finding I made in paragraph 32 of Ramokgopa matter is wrong.
Paragraph [32] of my judgment in the Ramokgopa matter is not
a
finding though. It is a summary of what was argued before me and it
reads as follows "
[32]
He
argued
further
that
failure
to
erect
a
dwelling
within
the
prescribed
time frame is a
trigger
event that entitles the applicant to
claim
re-transfer of
t
he
property.
This
right
is not
a servitude
. A
servitude
is a right
to use.
Furthermore,
not
all
rights of
benefits are a right of servitude.
[
19] The finding that
"the
obligation in the
title condition
B
to claim r
e
transfer
of
pr
o
perty
is
a debt
as
contemplated
in
the
Prescription Act"
is wrong .
First
and second respondents ( Puling Puling matter)
[20]
Counsel for the first and second respondents, Advocate Wagener SC
("Mr. Wagener") submitted that:
[21J
The issue of prescription was not before Du Plessis J in the Mosikare
matter, and as such he did not interrogate it. He only
deals with it
at the bottom of page 3 of the judgment where he stated that "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".
[221Du
Plessis J did not interrogate the question of what is a "real
right".
[23]
The fundamental distinction between real and personal rights is found
in Paragraph 21 of the Supreme Court of Appeal judgment
in the Absa v
Keet judgment where the following was stated:
"[2
1]
That distinction
between real
rights
and
personal
rights
has
consistently
been
recognised in
our
case
law [ 24] and
was recently
explained
by
this
Court
in
National Stadium
South
A frica
(
Pty) Ltd
v
Firstrand Bank
Ltd [25]
para
3 1:
'The first concerns
the
distinction between real
and personal
rights.
Real rights
have as their object a thing (Latin:
res;
Afrikaans: soak). Personal rights have as
their object
performance by another, and
the
duty to
perform
may
(
for present
purposes
] arise
from a contract. Personal rights may
give rise to real rights;
for
instance,
a
personal obligation
to
grant
someone
a
servitude
matures
into
a
real
right
on
registration.
Real
rights
give
rise
to
competencies:
ownership
of
land entitles the
owner to use the
land
or
to
give
others
rights
in
respect
thereof. Others may say that ownership consists of a bundle of
rights, including
the
right
to
use
the land,
but
it
does
not
really
matter
who is right
on
this
point.'
"
[24]
The applicant seeks performance of an obligation, namely, re-transfer
of the property. The object of the applicant's right
in the title
condition is not a thing. The personal right in this matter did not
mature into real right on registration because
its object does not
change. The applicant does not obtain any competency, but mere
performance by a third party.
[25]
The Barnett case is a classic case of Rei Vindicatio because the
applicant { the State) as land owner wanted to evict certain
persons
from its land. The owner, in the Keet decision too wanted to enforce
its rights as owner.
[26]
The applicant in this matter seeks to elevate its right into a
vindicatory claim by contending that the right arises from ownership.
It does not have ownership of the property, but a personal right.
[27]
Keet judgment is in no way a conflicting judgment because the owner
therein was exercising its competency.
[28]
The applicant seeks to enforce a claim arising from an obligation to
build which gave rise to a choice whether to enforce the
condition or
not. It is important to make this choice and act within a reasonable
time.
[29]
Acquisitive prescription has nothing to do with this case.
[30]
The only other decision of the High Court on a similar issue as the
one in this matter is the judgment of Mbatha J in the matter
of
EThekwini
Municipality v Mounthaven (pty)
Ltd13 (
Mounthaven judgment)
[31]
In conclusion, Mr. Wagener submitted that there are no prospects of
success on appeal and that if I were inclined to grant
leave, it
should be to the Supreme Court of Appeal.
[32]
In reply,
Mr Horn submitted that the fact that there is
another judgment on the same point (Mounthaven judgment) is enough
reason why leave
to appeal should be granted.
[33]
He also countered the argument about the object of the applicant 's
right being performance and not a thing by stating that
the
obligation relates to the property which is a thing. In conclusion he
reiterated that this is acquisitive prescription because
the land in
question is burdened.
[34]
With regard to costs, he submitted that if I grant appeal, costs
should be in the appeal.
ANALYSIS
AND EVALUATION OF GROUNDS OF APPEAL AND ARGUMENTS ADVANCED
[35]
The issues for decision were clearly summed up in paragraph [43] of
my judgment in the Ramokgopa matter, and it reads as follows:
"ISSUES
FOR DECISION
[
43] According to
the
respondent,
the
issues
that
I
am
required
to
determine
are
whether,
the
applicant
'
s
claim for retransfer
of
the propert
y to itself constitute
a
debt
as
contemplated
in the Prescription Act 68 of
1969
("
the
Prescription Act"
>)
and
if
so,
whether
the debt has prescribed
in terms of section
1
1
(d)
thereof.
The
applicant denies that
the
right
is
a
debt
and
contends that
the
question
of
prescription
should
be
determined
by
first
examining
the nature
of
the
right
that
is
conferred
by
the
title
condition.
The
issue
here
is
whether
its
registration
in
the
Deed
of
Transfer
means
that it isa
real
right,
and
is
incapable
of
prescription. An
additional or alternative
argument
is
whether
the
right
is
a personal
servitude
that expires after
30
years in terms of section
7
(
1
)
of the
Prescription Act.
[36
]
It is important to note that there is no attack on how I arrived at
the conclusion that;
(a)
registration in the title deed does not elevate the condition
to a real right when one takes into account (i) the
construction
(phrasing) of the title condition in question, (ii ) the
provisions of the Deeds Registries Act, and (iii)
the origins of
the subtraction from the dominium test (the background on how
such conditions became registrable) ,
(b) the decision of
the SCA in the Willow Waters judgment is not applicable
(binding on me ) in the facts before
me,
(c)
the issues before me were distinguishable from what Du Plessis J
was confronted with in the Mosikare matter. In
fact, and as
far as I could establish, and as counsel for the respondents
in the Puling matter (Mr. Wagener) correctly
submitted, Du
Plessis J did not go into the discussion with regard to the
distinction between real and personal rights.
He simply stated
that the title condition is a real right.
[37] The only issue,
in
my
view that on a flirting glance of the grounds of
appeal appears to have merit is whether the reference to the
Barnett and
Leketi decisions vitiated the findings that I made
with regard to the issues that were before me.
[38] It is misleading to
contend that I relied on decisions
I
judgments that were
overturned by the Supreme Court of Appeal.
The
judgments
in
question
came
about
when I
quoted
from
the
decision of
the
Constitutional
Court in
the
matter of
Road
A
ccident
Fund
and
Another
v Mdeyide
[14]
•
Paragraph [65) of
my
judgment in the Ramokgopa matter reads as follows:
"In
the
RAF
v
Mdeyide
matter
para 1 1
[15]
Van
Der
Westhuizen
J stated
the
following
"Generally
under the
Prescription Act, prescription
applies to
a
debt.
For
the
purposes
of
this
Act,
the
term
debt
has
been
given
a broad
meaning
to
refer
to an obligation to do something, be it
payment
or
delivery
of goods or
to
abstain
from
doing something. Although it may
on
occasion
be doubtful
whether an
obligation
is
indeed
a debt in terms
of
the
Act,
there
is
no doubt
that a claim under the RAF Act
constitutes
a
debt. However, the RAF Act regulates
the
prescription
of
claims under it and
some
of
the
differences
between
the
two
statutes
have
been
placed at
the
core
of
this
matter.
[39]
In the subsequent paragraphs (66 - 69) of my judgment, I then
highlighted the issues that were considered by the courts in
the
matters that were referred to in the Constitutional Court judgment of
RAF v Mdeyide and concluded in paragraph 69 that the
claim was a
debt.
[40]
I was aware of the Absa v Keet decision when I wrote my judgment,
hence I referred to it right after making reference to the
Barnet and
Leketi decision.
My
view though was that the title condition before me is different from
credit agreement clauses such as the one in the Absa v Keet
judgment,
hence my finding that the applicant's claim is not vindicatory in
nature.
[40.
l ] The applicant has already passed ownership of the property to the
respondents in the matters before me for the simple
reason that
all conditions in that regard have been fulfilled, but has reserved
a right to re-claim ownership if the purchaser
does not build a
dwelling within 18 months of transfer.
This
is not the case with clauses such as the one in the Absa v Keet
matter. The credit grantor remains owner until the full
amount is
paid . In the event of default, it exercises its rights as owner of
the property in question.
[41]
In defending the Special Plea, the applicant submitted that in order
to decide the question of prescription, I should first
look at the
nature of the right that is conferred on it by the title condition
in question. The applicant relied on the fact that
the condition to
claim re-transfer of the property was registered in the title deed
and as such it is a real right and will only
expire after 30 years.
It
is clear from the analysis I undertook with regard to the law, the
phrasing ( construction) of the title condition, the history
of the
subtraction of from the dominium test that the applicant' s
contentions in this regard cannot stand.
As
I indicated above, there is no attack on this part of the judgment.
[42]
The applicant contends without substantiating, that I should not have
preferred the wide meaning of the word "debt ".
TEST
FOR LEAVE TO APPEAL
[43]
I am not required at this stage to justify, supplement or re-write my
judgment. On the same breath, the applicant is not at
liberty, at
this stage to present a new case, new arguments or supplement its
case.
The
purpose of the exercise I undertook above was to place in proper
context the findings that I made which constitute the grounds
of
appeal. The applicants seem to have extracted certain words
I
sentences from certain parts of the judgments, and in certain
instances, attributed to the judgments certain findings that were
never made.
I may have gone overboard
by quoting many authorities and in some instances not indicating the
reason for making such references.
This does not detract from the
findings I made on the issues before me. The applicant does not agree
that the word "debt"
must be given a wide meaning. However,
no submissions were made with regard to interpretation of this word,
other than reliance
on the fact that the title condition is
registered in the Deeds Registry and that it is a real right.
[44]
It is a serious misdirection to rely on authorities that have been
overturned by higher a court and as correctly submitted
by Mr. Horn,
the Supreme Court of Appeal would be entitled to interfere.
However,
the
reference
or
rather
mentioning
of
those
authorities
was
incidental
as
they
were
referred
to
by
the
Constitutional
Court
[16]
whilst
laying
down
the principles on
the meaning
of the word
"debt"
in
the
Prescription Act by
referring
to earlier authorities.
The
relevant paragraph is [1 1] which reads as follows:
"
Generally under the
Prescription Act,
prescription
applies to
a
debt.
For
the
purposes of
this
Act, the
term
debt
has
been
given
a broad
meaning to
refer
to on
obligation to
do
something,
be
it
payment
or delivery of
goods or
to
abstain
from doing
something.
12
Although
it
may
on
occasion
be doubtful whether
on
obligation
is
indeed
a
debt
in
terms
of
the
Act,
13
there
is
no
doubt that
a
claim
under the RAF
Act
constitutes
a
debt. However, the RAF
Act regulates the prescription of claims under it
and
some
of the
differences between the
two statutes hove been placed
at the
core of
this matter"
Footnotes
12 and 13 read as follows:
"
12
See Barnett
and
Others v
M
inister
of
Land
Affairs and
Others
2007
(6)
SA 3
1
3
(SCA);
2007
(1
J)
BCLR
1
2
14
(SCA)
at para
1 9
and
Desai
NO
v
Desai and
Others
[19951
ZASCA
1 1
3;
1996
(I
)
SA
141
(SCA)
at I
46H.
Further
see
section 1
of
the
Institution of Legal Proceedings
Against Certain
Organs
of
State
Act
40
of
2002
for
a
similarly
brood
definition
of
debt, with the additional
requirement
that
the debt must
be
owed
by on
organ
of
state:
"
'
debt'
means any
debt
arising
from
any cause
of
action-
I.
which
arises from
delictuol, contractual or any
other liability,
including
a cause
of
action
which relates
to or arises
from
any-
(i)
act performed
under or in terms of any low: or
(ii
)
omission
to
do
anything which
should
have
been
done
under
or in
terms
of
any
low:
and
(
b)
for
which
on
organ
of
state
is
liable
for
payment
of
damages
. . .
1
3
This
issue
was raised
for
instance
in
Njongi
v
M
EC,
Deportment
of
Welfare, Eastern
Cope
[20081
ZACC 4:
[2008] ZACC 4
;
2008
(4}
SA 237
(CC):
2008
(6)
BCLR
571
(CC), where this
Court
raised
but
ultimately
left
open
the
question
of whether
a
constitutional
obligation
could
be
considered
a
debt.
In
Boundary
Financing
Ltd
v
Protea
Property
Holdings
(
Pty)
Ltd
2009
(3)
SA 447
(SCA)
at
para 13,
it
was
held
that
a
claim
for
rectification
of
a
contract
was
not
a
debt
in
terms
of the
Prescription
[45]
In the
matter of Mt
i
rara
v Landmark Mthatha (Pty) Ltd
[17]
,
Petse ADJP
reiterated the
test
for
leave to
appeal and
stated the
following:
[
1
4]
The requirements
for
leave
to appeal have, in a long fine
of
cases, been held
to
be existence
of
a reasonable
prospect
of
success
on
appeal.
(See:
R
v
Baloi 1949
(1)
SA
523
(AJ
at
524,
R
v
Nxumalo
1
939
AD 580
at
582,
R
v
Ngubane
&
Others
1
945 AD
185
at
187,
Capital Building Society v De Jager
&
Others, De
Jager and Another
v Capital
Building Society
1964
(1)
SA 247
(AJ, Afrikaanse
Pers
Bpk v Olivier
1
949
(2)
SA
890
(
O
J at
892 - 893,
S v Ackerman en
'n
Ander
1973
(1)
SA
765
(AJ
and
S v Sikosana
1980
(4)
SA 559
(AJ
at 562.J [ 1
5]
Although some
of
the cases cited in the
preceding
paragraph
were
criminal
cases it has been
held that the test is the same and the same need
for
the test
to
be applied properly applies also in
civil
cases.
(See
:
Botes
&
Another v Nedbank
Limited
1983 (3J
27
at 28
C
(ADJ )[
16] In
giving
consideration
to
the
application
I
am
therefore
enjoined
by judicial
authority
to
take
cognisance
of
the
test
which is
of
application
in
matters
of
this nature.
This
necessarily
entails
that
I
should
consider
the
application
objectively
and
to
the
extent
that
human
nature
allows
disabuse
my
mind
of
the
fact
that
I
reached the conclusion
that
I
did
in
the main
application. Indeed
judicial authority enjoins
me
to
reflect
dispassionately upon my decision and
decide
whether
there is
a
reasonable
prospect
that
the
Appeal
Court may
disagree
with
my decision.
[46]
am required to consider. objectively, whether there are reasonable
prospects of another court coming to a different conclusion
than that
I arrived at in my judgment.
[47]
I
have
to
the
best
of
my
ability,
now
and
when
writing
[18]
the judgments
on
which
leave to
appeal is sought, considered all the judgments
in this
Division
and
elsewhere
that
dealt
with
similar
issues.
As
I indicated
in
the
Ramokgopa
judgment,
all
of them are
distinguishable because
they
were
decided
on
different
considerations,
even
though
prescription was initially raised as a defence in some.
[48]
I
am
aware
of
at
least
one
more
judgment that
was
delivered
few
weeks
before
my
judgment. This
is
the
judgment
of
Manamela
AJ
in
the
matter of
Bondev
Midrand (Pty) Ltd v Letsholo and Others
[19]
The
issue before Manamela AJ is captured in paragraph 2 and it reads as
follows:
[2]
I henceforth
refer
to
the
condition
quoted
above
as
the
building
time limit. The
applicant
has decided
to exercise
the option in
the building
time
limit
and seeks re- transfer of
the
property
back
from
the first and second
respondents.
As required as part of exercising this
option, the applicant tenders the ref
und of
the
purchase
price,
but
accordingly
requires
the
re-transfer to
be
at
the
first
and second respondents'
expense.
The application is
opposed only by
the
first and
second
respondents, but
is without
prejudice to
the
rights
of
the
fourth
respondent
as
bondholder over the
property.[4]
The
first
and
second respondents
(
the
respondents)
contend
that the applicant
is reneging
from
the latest
arrangement
or agreement
to extend
the building
time limit, which couldn't be
consummated
due to a supervening
impossibility.
Therefore, a brief factual background
of
the matter is necessary'
[49]
Manamela AJ considered the judgments of Fabricius J and Du Plessis J
like I did. In paragraph [ l8], he stated, amongst others
the
following:
However,
in
my view,
this
does
not
justify
derogation from the
principles shared
and
conclusion
reached
by
Du
Plessis
J
in
Mosikare.
I
agree
with
the
decision
in Mosikare that the
obligation remains despite the
lapse in the
building
time
limit
and
therefore the requirement to erect
a
dwelling will
-
in
the absence of stipulated time period
-
have to be
within
a
reasonable time. However, as stated
above,
all
these
appear
to
be superfluous
because
the parties
have
decided
to
locate
their
arguments
elsewhere,
despite
my
views
at
first
blush
about
impossibility
of
performance relating to the building
time limit.
He
then ordered the respondent to re-transfer the property to the
applicant. The reasons appear in paragraph [20] where he concluded
that:
[20) Once
I
have
decided
against
that
the
existence of the
caveat
[ against
the
property in
the
deeds
records] does
not
avail
the respondents,
it
follows
that
the
respondents
did not fulfil the third
condition in the February 2014 arrangement
to extend
the building
time limit.
Therefore,
there is
breach
in
this
regard,
and
the applicant
is
entitled
to exercise
the option
for
a re-transfer
of
the
property back
from
the
respondents.
The
ancillary orders
sought
are
in
terms
of the
contract
or
in
case
the respondents
do
not
cooperate
with
the
ordered
process.
[50]
I must concede though that the uncertainty that is caused by matters
being decided on technicalities and leaving open serious
questions of
law are not in the interest of justice.
[50.1]
The applicant has been party to almost all the judgments that I was
referred to during the hearing and those that I
considered on my
own.
[50.2]
As I have already stated above, the only other judgment where a plea
of prescription under similar circumstances was
upheld and after
consideration of the merits thereof is in the judgment of Mbatha J
in the Mounthaven matter. The fact that
the judgments of Mbatha
and I are decisions of single judges does not entitle the
applicants to create non- existing conflicts
with an earlier
judgment (Du Plessis J) with a view to attract the attention of
the Supreme Court of Appeal.
[51]
The applicant also criticizes my judgment on the basis that I should
have, but did not follow the SCA judgment of Maya JA in
the Willow
Waters matter to make a finding that "an
obligation
that may
otherwise
conform
to the
broad
definition
of
"
debt"
is servitudinal in
nature
if
it
meets
the
two requirements
set in
that decision"
[52]
I considered the judgment of Maya JA. I also examined the differences
between the title condition that was before Maya JA and
the one
before me. The former, known as CONDITION C in the title deed has no
end because membership of the Home Association is
compulsory whereas
in the one before me the condition to re-transfer falls off once
fulfilled, within the 18-month period or any
extended period as the
parties may agree.
In
paragraphs 55 and 56 of Ramokgopa judgment I stated the following:
"[55]
Title
condition
C
links
ownerships
of
the
erf
with
perpetual
membership
of
the
Home Owners Association
.
This has
no
end
.
As
M
r.
Manalo has
put
it,
it
is
performance
in
perpetuity.In
coming
to
the conclusion
that
a
similar
condition
constitutes
a
real
right, Maya
JA
in
the Willow Waters
matter
pointed out the
requirements
that must be met
(subtraction
from
the
dominium
test}
and
went
further
to
state
that
"...
Whether
the
title
condition
embodies
a
personal
or
real
right
which
restricts
the
exercise
of
ownership
i
s
a matter
of
interpretation"
[20]
[56]
I
do
not
agree
with
the
submission
that
registration
of
personal
obligations
in
the
Deed
of
Transfer
determines
whether a
right
i
s
real or
personal.
As I
have
indicated
above,
a
title
condition
that
i
mposes
mere
obligations
are
registrable
i
n
terms
of
the
proviso
to
section 63(
1
).
As
I
have
already
observed
above,
counsel
for
the
applicant
and
the
Learned
JA
have
omitted
to
quote
the
proviso
[21]
.
[53]
There
was
no
plea
of
prescription
in the
matter
that
was
before
Maya
AJ.
In
paragraph
16,
the
Learned
JA
emphasized
that
irrespective
of
whether
the
title
condition
is
a
real
or
personal
right, what
is important is how it is interpreted.
Accordingly,
and f or reasons stated in the judgments, I still do not believe that
I should have simply followed the Willow Waters
judgment.
[54]
With regard to whether registration of the condition in the title
deed is of any significance, I also noted in my judgment
(bottom of
paragraph 56 of the Ramokgopa judgment) that Maya JA did not take
into account the proviso to
section 63(
l ) of the Deeds Registries
Act, which in my view is very important in as far as the issues that
were before me were concerned,
namely, whether registration of a
title condition elevates it to real rights. This was not before Maya
JA. Paragraph [21] of the
Willow Waters judgment reads as follows:
For
a condition
to
be capable
of
valid registration
as
a real
right,
the
second
aspect
requires that it
must carve out a
portion
of, or
take
away something
from,
the
dominium.[lM This principle is embodied
in
of
the
Deeds
Registries Act 47
of
1
937
in
terms
of
which
'[n]o
deed,
or
condition
in
a
deed,
purporting
to
create
or
embodying
any
personal
right,
and
no
condition
which does not
restrict the exercise of any right of ownership in respect
of
immovable property,
shall
be capable
of
registration'."
(quotation of Section 63(1) as it appears in the Willow
Waters judgment) .
[55]
The applicant chose how to defend the special plea of prescription. I
may
re-iterate the applicant's contentions
[22]
in this regard;
"
The
applicant denies that
the right
is a
debt
and
contends
that
the
question
of
prescription
should
be
determined
by
first
examining
the nature
of
the
right
that is
conferred
by the
title
condition.
The
issue
here
is
whether its
registration
in
the
Deed
of
Transfer
means
that
it is
a
real right,
and
is
incapable
of
prescription.
An
additional
or
alternative
argument
is
whether
the right
is
a personal
servitude
that
expires after 30 years in terms
of
section
7
( 1
)
of
the
Prescription
Act."
[56
]
I did not on my own start an enquiry about
Section 63(
1
) of the
Deeds Act. The defence was raised in the Replying Affidavit. If
anything, it is the applicant that should have proved
that the
condition complies with all the requirements of Section 63( 1 ) of
the Deeds Act and not the other way round. As I have
already noted in
my judgment, the applicant' s (and Maya JA 's ) reading of Section
63( 1) of the Deeds Act does not take into
account the proviso
thereof.
[56.1]
It is therefore disingenuous on the part of the
applicant
at this
stage
to
allege
that
I erred
by
[23]
;
"5.
finding
that
the applicant' s right in terms of
the title
condition
was persona/ in
nature,
but
registrable
in
terms
of
section
63
of
the Deeds
Registries
Act
in circumstances
where
5. I
the
first
respondent
did
not
contend
or prove
that
the
applicant'
s
right
in
terms
of the
condition
was
"
complimentary
or otherwise to
a
registrable
condition" .
5.2
a
registrable condition to which the applicant' s right
in
terms of
the condition
may
be
complimentary
or
ancillary
has
not
been
shown
to
exist;
and
5.3
the
applicant
is
entitled
to
become owner
of
the property
in
the event of
non- compliance
with the
title condition"
CONCLUSION
AND ORDER
[57]
Having considered all the arguments and the grounds of appeal , I am
not convinced that there are reasonable prospects of another
court
coming to a different conclusion than that I arrived at in my
judgment.
Accordingly,
I make the following order:
[58]
In case number 72637/2013;
[58.1]
The application for leave to appeal is refused; and
[58.2]
There is no order of costs.
[59]
in case number 58/2014;
[59.1]
The application for leave to appeal is refused; and
[59.2]
The applicant is ordered to pay the first and the second respondents
' costs.
Acting
Judge of the High Court
APPEARANCES:
Case
number:72637/201 3:
APPLICANT:
Advocate
N.J
Horn
Instructed
by: Tim Du Toit & CO. IncLynnwood, PRETORIA
FIRST
RESPONDEN
T
:
None
Case
number: 58/2014:
APPLICANT:
Advocate
N.J
Horn
Instructed
by: Tim Du Tait & CO. Inc Lynnwood, PRETORIA
RESPONDENT
:
Advocate S.D Wagener SC
Instructed
by: Gerhard Wagenaar Attorneys Lynnwood Glen, PRETORIA
[1]
Paragraph
18 of Ramokgopa judgment reads as follows:
[
18] As a result, and for the sake of convenience, and on my request,
all counsel involved agreed to argue the special plea together.
The
arguments of the counsel for the applicant are basically similar in
both matters.
[2]
Save for the manner, extent and style of presentation, the arguments
of counsel for the respondents in both matters on the point
in
limine overlap to a greater extent"
2
Paragraphs 59 and 60 of the Puling judgment read as follows: (59]The
special plea of prescription is upheld.
The
reasons, which I do not intend to reproduce, appear in my judgment
in the similar matter of Bondev v Ramokgopa 2 that was
heard
together with this matter as I have explained above.
After
examining the law (statutory and cases), and applying it to the
facts of the matters before me, I came to the conclusion
that the
applicant's claim constitutes a debt as contemplated in the
Prescription Act and
that it is a debt that prescribes in three
years in terms of Section l l (d) thereof.
[60]
I have also considered the judgments 2 in this division where
applications for re-transfer of properties were either granted
or
refused. I agree with respondents' counsel's submissions that it
would only be binding on subsequent purchasers if the transferor
enters into further agreements with them. This was the rationale of
the decisions in the judgment of Dodson AJ in the matter
of Bondev V
Rasalanavho 2 . This is in line with Section 68 of the Deeds Act. It
is also a sensible reading of the title condition
because , as I
have already stated, the restrictions with regard to selling and
transfer to third parties only apply within the
18-month period.
[3]
Paragraph J of the application in the Puling matter.
[4]
Paragraph l of the Notice of application
[5]
1
996 (4) SA 384
(E) at p. 385 C
[6]
(50391/ 2008) [2010] ZAGPPHC 305 (22 April 2010)
[7]
(304/ 06)
[2007] ZASCA 95
; [2007] SCA 95 (RSA);
2007 (6) SA 313
(SCA) (6 September
2007)
[8]
(117/ 2009)
[2010] ZASCA 38
;
[2010] 3 All SA 519
(SCA) (30 March
2010)
[9]
(817/ 2013)
[2015] ZASCA 81
;
2015 (4) SA 474
(SCA);
[2015] 4 All SA
1
(SCA) (28 May
2015)
[10]
Lodhi 2 Properties Investments CC and Another v Bondev Developments
(Pty) Ltd, case number 05/ 8878 (Witwatersrand Local Division),
Lodhi 2 Properties Investments CC v Bondev Developments (Pty) Ltd (
128/ 06)
[2007] ZASCA 85
; [2007] SCA 85 (RSA) ;
2007 (6) SA 87
(SCA)
( 1 June 2007), Bondev Developments (Pty) Ltd v Plenty Properties 60
(Pty) Ltd and Others (43602/ 08) [2009] ZAGPPHC
346
(2 December 2009), Bondev Development (Pty) Ltd v Mosikare and
Others (50391/ 2008) [2010] ZAGPPHC 305 (22 April 2010)Bondev
Midrand (Pty) Limited v Rasalanavho and Others (47616/ 2014) [2015]
ZAGPPHC 538 (10 June 2015)
[11]
Supra.
[12]
Supra
[13]
(1985/ 2014) [2015] ZAKZDHC 78 (30 September 2015)
[14]
(CCT 10/10) [20101 ZACC 18;
2011 (1) BCLR 1
(CC) ;
2011 (2) SA 26
(CC) (30 September
2010
.
[15]
With reference to the following authorities: Barnett and Others v
Minister of Land Affairs and Others
2007 (6) SA 313
(SCA);
2007 (11)
BCLR 1214
(SCA) at para 19 and Desai NO v Desai and Others (19951
ZASCA 113; 1996 (
1) SA 141
(SCA) at 146H. Further see
section 1
of
the
Institution of Legal Proceedings Against Certain Organs of State
Act 40 of 2002
[16]
RAF V Mdeyide supra
[17]
607/2007) [2007) ZAECHC 1 16 (20 December 2007)
[18]
Paragraphs 37 to 41 of the Ramokgopa judgment.
(59/2014)
[2015] Z AGPPHC 677 (21 September 2015)
[19]
(59/2014) [2015] Z AGPPHC 677 (21 September 2015)
[20]
Last sentence of paragraph (16] and with reference to the matter of
First National Stadium South Africa (pty) Ltd & Others
v
Firstrand Bank Ltd
2011 (2) SA 157
(SCA) para 33
[21]
See paragraph 21 of the judgment. In paragraph 31 the Learned JA
indicated that
registration
is however not decisive.
[22]
Paragraph [43] of Ramokgopa matter.
[23]
Grounds of appeal, paragraph 5.