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[2016] ZAGPPHC 956
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Bondev Midrand (Pty) Ltd v Phalanndwa and Others (47615/2014) [2016] ZAGPPHC 956 (2 November 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)
REPUBLIC
OF SOUTH AFRICA
2/11/16
Case
Number: 47615/2014
In
the matter between:
BONDEV
MIDRAND (PTY)
LTD Applicant
and
MULAMBILU
PHALANNDWA First
Respondent
THE
REGISTRAR OF DEEDS,
PRETORIA Second
Respondent
NQABA
GUARANTEES
SPV Third
Respondent
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1]
The applicant, in essence, prays for an order directing the first
respondent to take all necessary steps to re-transfer Erf
[....] M.
E. E. [....], Township, Registration Division J. R., Gauteng ("the
property") to the applicant.
FACTS
[2]
The applicant conducts business as a property developer and developed
the Estate in which the property is situated. On 27 June
2011 the
applicant, in terms of a written agreement, sold the property to the
first respondent.
[3]
Clause 10 of the agreement reads as follows:
"10.
BUILDING
PERIOD:
10:1
The PURCHASER undertakes to erect 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 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."
[4]
The aforesaid condition is contained in the Title Deed of the
property, to wit:
"B.
SUBJECT to the following condition imposed and enforceable by BONDEV
MIDRAND PROPRIETY LIMITED (Registration Number: 20001027600107),
namely:
The
Transferee
or
his
Successors
in Title
will
be
liable
to
erect
a
dwelling
on
the property
within
18
(EIGHTEEN) months
from
13
May
2008,
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."
[5]
In its founding affidavit, the applicant refers to a so-called
extension agreement that was entered into subsequent to the sale
agreement. The paragraph reads as follows:
"16.
In
addition to
the
aforementioned
a
greements
(sic)
the
First Respondent
entered
into
a
further
agreement
with
the Applicant
to extend the building period for
the erection of a property
for
1
2
(twelve) months from the 16
th
of
September
2011
("the
extension
a
greement").
"
[6]
The agreement is attached to the papers and was,
ex
facie
the document, signed by the parties at Pretoria on 16 September
2011.
[7]
The transfer of the property was registered by the second respondent
on 12 March 2015. In compliance with condition B of the
Title Deed
referred to
supra,
the applicant lodged the following document
with the second respondent:
“
CONSENT
I,
the undersigned
PHILLIPUS
JACOBUS LODEWIKUS STRYDOM
Duly
authorised thereto by
a
resolution by
BONDEV
MIDRAND PROPRIETARY LIMITED
Registration
number: 20001027600107
Hereby
confirms that an extension of building period has been granted for an
unlimited period in the company's discretion and hereby
consents to
the transfer of
Erf
[....], M. E. E. [....] Township, Registration Division J.R, Province
Gauteng
MEASURING:
1005 (ONE THOUSAND
AND
FIVE) square
meters.
FROM:
BONDEV
MIDRANO
PROPRIETARY
LIMITED
Registration Number:
20001027600107
TO:
MULAMBILU PHALANDWA
Identity Number: [8....]
Unmarried
Clause
B in the title deed has not been complied with and stands as
a
condition."
[8]
The applicant only refers in passing to the document in its founding
affidavit, to wit:
"
1
5
The Applicant
consented
to
the
transfer
of
the
property
on
the 27
th
of October 2010
(sic)
on condition
that
the above title condition
must be
co
m
plied
with.
T
he consent is attached to the
tit
l
e deed.
"
[9]
The applicant, relying on the extension agreement, contends that it
is entitled to the relief claimed. It is clear from the
extension
agreement that the period of 12 months expired on 17 September 2012.
[10]
The first respondent does not agree. The first respondent contends
that the period contained in the consent document is applicable
and
consequently, the building period has not expired. The first
respondent dealt as follows with the events that led to the contents
of the consent document:
"12
In September 2011, before my bond finance application was
approved, I signed an extension of building period document. A copy
of
the extension is attached to the founding affidavit as annexure
85.
13.
The extension
document is, on the face of it,
also contradictory and v
a
gue. The obvious
contradiction
is,
inter alia,
that
it records
that I acknowledge that the original
building period will expire on 31 March
2010.
However
at
the
time
of s
i
gning
the
document,
in
S
e
ptember 2011,
the
building
period
end
date
of
31
M
arch
2010
had
alrea
d
y expired.
14.
The third respondent
was not satisfied
with the extension document and its
a
pparent
v
a
gueness
and contradictions
with building periods and indicated
that it
would not grant
the necessary
bond
approval if there
were
uncertainties
on
the
building
periods.
15.
The parties then agreed that the building period would be
extended for an unlimited period and that the applicant would sign a
consent
document to this effect.
1
6.
On 27 October 201
1
,
the
a
pplicant's
conv
e
yancer
s
i
gned
a
consent
document.
The
consent document has been
included and
attached to the
Deed
of Transfer.
"
[11]
In its replying affidavit, the applicant vehemently denies these
averments. The relevant portion of the replying affidavit
read as
follows:
"AD
PARAGRAPH
1
5
9
.1.....
9.2
The Applicant
is
not
in
possession
of such
a
document
and
the
First
Respondent
has not produced
such a document.
T
here
are more
than 4,
000 houses
in
the
Midstream
development
and
the Applicant
granted no open
extension to any owner.
9
.3......
9.4......."
[12]
This answer obviously flies in the face of the clear wording of the
consent document.
[13]
Having realised this apparent difficulty, the applicant then alleges
that it only accepted the first respondent's
"offer"
contained in the extension agreement subsequent to the transfer
being registered in March 2012.
[14]
Needless to say this averment, which appears for the first time in
the replying affidavit, does not correspond with the contents
of the
extension agreement.
DISCUSSION
[15]
In view of the aforesaid facts, it is necessary to determine whether
the applicant made out a case for the relief claimed.
[16]
Mr Stone, counsel for the applicant, urged me at the commencement of
the hearing to refer certain issues raised by the first
respondent in
his answering affidavit to oral evidence. According to him issues
raised in the answering affidavit coupled with
the applicant's
response thereto in the replying affidavit created factual disputes
that is not capable of being resolved on the
affidavits as they
stand.
[17]
I do not agree and consequently refused the application to refer the
matter to oral evidence.
[18]
The first respondent's version of events is supported by the
annexures attached to the founding affidavit. Mr Stone,
understandably,
had difficulty in explaining the rationale behind the
consent document and more specifically the exact wording thereof.
[19]
He submitted that, should I find that the consent document is valid
and binding on the applicant, the applicant through its
letter of
demand dated 24 October 2013 exercised its discretion in terms of
clause B of the Title Deed and changed the unlimited
period of
extension to immediate performance.
[20]
The letter reads as follows:
"DEVELOPMENT
OF ERF [....]: MIDLANDS ESTATE
Despite
several requests to resolve this matter we have no cooperation from
you.
In
terms of inter alia the Title Deed of the property and the Home
Owner's Association Rules this stand for should have been developed
long ago.
Bondev
did reserve their right to retransfer this erf until now. We do
have a commitment to our residents to see to it that
Midlands Estate
being developed as soon as possible. Your delay in the development is
not conductive to our commitment.
Unless
you submit building plans and/or start with the building process
immediately, Bondev will exercise their right to retransfer
this
property back into their name. Messrs Tim Du Tait Attorneys will then
liaise with you in the preparation of the transfer documents."
[21]
Mr Manchu, counsel for the first respondent, submitted that the
letter of demand does not refer to the exercise of a discretion
by
the applicant as envisaged in clause 8 of the Title Deed.
[22]
I agree. It is furthermore trite that an applicant must make out its
case in the founding papers. [See
National Director of Public
Prosecutions v
Phillips and Others
2002 (4)
SA 60
W at para [36]]
[23]
The principle underlying this rule is one of the cornerstones of
litigation. A respondent must be able to ascertain the exact
case
he/she has to meet from the allegations contained in the founding
affidavit. Mr Stone's submission is not borne out by the
allegations
in the founding affidavit.
[24]
It would be hugely unfair to call upon a respondent to meet a
specific case and to thereafter, during argument, change tact.
[25]
As alluded to earlier, the applicant's own documents support the
first respondent's version and consequently the applicant
failed to
make out a case in its founding affidavit in support of the relief
claimed.
ORDER
I
the premises, I make the following order: The application is
dismissed with costs.
_____________________________________
N
JANSE VAN NIEUWENHUIZEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
ATTORNEYS
FOR THE APPLICANT:
TIM
DU TOIT & CO
COUNSEL
ON BEHALF OF THE APPLICANT:
Advocate
STONE
ATTORNEYS
FOR THE FIRST RESPONDENTS:
LEDWABA
MAZ.\NAI
COUNSEL
ON BEHALF OF THE FIRST RESPONDENT
Advocate
T MANCHU
Date
of hearing: 18 October 2016
Date
of judgment: 2 November 2016