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[2015] ZAGPPHC 538
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Bondev Midrand (Pty) Limited v Rasalanavho and Others (47616/2014) [2015] ZAGPPHC 538 (10 June 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 47616/2014
DATE:
10 JUNE 2015
In
the matter between:
BONDEV
MIDRAND (PTY)
LIMITED
.................................................................................
Applicant
And
MTSHAVHENI
GIDEON
RASALANAVHO
............................................................
First
Respondent
THABELO
RASALANAVHO
.................................................................................
Second
Respondent
THE
REGISTRAR OF DEEDS,
PRETORIA
.........................................................
Third
Respondent
STANDARD
BANK OF SOUTH
AFRICA
............................................................
Fourth
Respondent
JUDGMENT
DODSON
AJ:
Introduction
[1]
This is an application to compel the first and second
respondents to retransfer to the applicant, as developer, an erf
in a
township development (“the property”). Re-transfer
is sought at the price originally paid by the first and second
respondents.
The grounds on which re-transfer is sought is that they
have failed to build a residence on the erf within the time period
stipulated
by way of a restrictive condition of title registered in
their deed of transfer.
[2]
The application is opposed on the basis that -
[2.1]
the founding affidavit lacked essential averments pertaining
to the deponent’s authority and the facts being within his own
personal knowledge;
[2.2]
the applicants claim for re-transfer has prescribed;
[2.3]
the period for completion was tacitly extended; and
[2.4]
the balance of convenience favours allowing the first and
second respondents to complete their dwelling and retain ownership.
[3]
I am also called on to decide an application for condonation
of the late filing of the applicant’s replying affidavit.
Factual
background
[4]
The applicant initially sold the property to a close
corporation. The close corporation sold the property to the first and
second
respondents (“the
respondents")
on 18 March 2012. Transfer was registered on 29 May 2012.
[5]
The relevant title deed condition was reflected in the
identical wording to that which appeared in the deed of transfer in
respect
of the initial sale to the close corporation. It provides as
follows:
“
B.
ONDERHEWIG AAN die volgende voorwaarde opgele en afgedwing deur
BONDEV MIDRAND PROPRIETARY LIMITED. (Nr. 2000/027600/07) (die
transportgewer) naamlik:
Die
transportnemer; sy opvolger in title of regsverkrygendes, is verplig
om ’n woonhuis op die eiendom op te rig binne 18
(agtien)
maande vanaf 7 Desember 2007, by gebreke waarvan die transportgewer
geregtig sal wees, maar nie verplig, nie, om te eis
dat die eiendom
aan die transportgewer op kostes van die transportnemer
getransponsporteer word teen betaling van die oorspronklike
koopprys,
rente vry. Die transportenmer sal nie die eiendom binne gemelde
tydperk mag verkoop of oordra sonder skriftelike toestemming
van die
ontwikkelaar nie. Hierdie tydperk kan in die diskresie van die
ontwikkelaar verleng word.
[1]
[6]
The applicant consented to the transfer of the property. The
written consent was attached to the deed of transfer and recorded
that
the title deed condition had not yet been complied with and was
to stand as a condition of title. It also recorded that the developer
had granted an extension of the time period for the construction of
the residence. The period of the extension was not recorded
in the
written consent. The written consent was signed on 8 May 2012.
[7]
In order to determine the time period of the extension, one
must look to a written agreement signed by the applicant and the
respondents
on 9 April 2012. Although the agreement is framed in the
first person singular, both the first and second respondents signed
it.
The material parts of the agreement, entitled “Extension of
building period : Midlands Estate”, read as follows:
7,.
.. 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
Midlands Estate;
4.
The construction period is 9
months;
5.
Extra levies will be imposed by
the Midlands HO 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
calendar 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.
Start construction within 90
days after acceptance hereof.
5.
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.
Bondev
hereby extends the building period by a maximum of 12 months on
condition that this undertaking is strictly complied with.
”
[8]
The effect of the extension agreement was that the first and
second respondents had to complete construction of a residential
dwelling
on the property within 12 months from 9 April 2012. This
would have given the first and second respondents until 9 April 2013
to
complete the construction of the dwelling.
[9]
It is common cause that that 9 April 2013 came and went
without completion of the residential dwelling.
[10]
On 23 October 2013, the applicant addressed a letter to the
first respondent which read as follows:
“
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 should have been developed
long ago.
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 Toit Attorneys will then
liaise with you in the preparation of the transfer documents.
”
[11]
The first respondent replied, saying that “
the
architect was busy finalising the final council / municipal and
working drawings
(sic).” Despite this, the residential
dwelling has not been developed.
[12]
In their answering affidavit, the first and second respondents
say that the period for construction was extended “
by
conduct
because the letter of demand was only sent on 23
October 2013, six months after expiry of the time limit for
construction.
[13]
They attributed the delays to their awaiting the finalisation
of the drawings by the architect and the approval of those drawings
by the municipality.
[14]
They also point out that the application was only brought
eight months after the letter of demand and, when it was brought, it
was
not properly served as it was sent by email.
[15]
They also referred to correspondence with the applicant. This
included-
[15.1]
an email addressed by the first respondent to the applicant on
4 December 2013 which refers to their attached response. However,
this attachment does not appear to have been included in the
annexures to the answering affidavit;
[15.2]
an email dated 22 May 2014 referring to their efforts to have
the plans approved by the municipality;
[15.3]
a letter dated 25 July 2014 from the respondents’
attorneys recording that the application had not been properly
served, that
they had been instructed to oppose the application and
recording that the respondents were now in possession of all the
necessary
documents authorising them to start building. Attached to
the letter was a copy of a certificate of compliance following a site
inspection by the Home Owners Association Estate Controller. The
letter recorded that construction would start early the following
week. The applicant was in the circumstances called upon to withdraw
its application to court.
[16]
Further, according to the first and second respondents,
construction has already started on the property but they were
advised to
stop the construction after being formally served with
this application.
[17]
The letter of 25 July 2014 also attached a copy of a
certificate to commence construction dated 21 July 2014 issued by the
Home
Owners Association and approving the first site building plan.
[18]
Although construction had already started, the first and
second respondents say that after they were formally served with the
court
documents, construction was halted.
Condonation
[19]
The applicant’s explanation for the late filing of its
replying affidavit is that its attorney was tied up with litigation
in the lead-up to the Christmas period. As a result it was only filed
in the new year. Although the explanation is not a compelling
one,
the respondents were unable to point to any substantial prejudice
that might arise from condoning the late filing of the replying
affidavit. The filing of the replying affidavit constitutes a
component of the right to be heard in terms of section 34 of the
Constitution. In my view, the extent of the applicant’s delay
and the weakness of its explanation does not justify denying
this
right. I accordingly condone the late filing of the replying
affidavit.
Lack
of authority and essential averments in the founding affidavit
[20]
Due to what is manifestly a typing or word processing error,
most of paragraph 1 of the founding affidavit never made it into the
affidavit. The paragraph begins “
except
where stated to the contrary and are true and correct
. In its
replying affidavit the applicant explains that this was a typographic
error, provides the missing averments as to the requisite
authority
and provides the missing part of the sentence in which the deponent
avers that the facts are within his own personal
knowledge.
[21]
I should add that notwithstanding the absence of the averment
pertaining to authority, a resolution in terms of which the applicant
decided to bring the application and authorised its director, the
deponent, Johannes Adrian Bothma, to do what was required in
the
application is attached to the founding affidavit.
[22]
A
party who wishes to challenge the authority to bring proceedings must
make use of rule 7 of the Uniform Rules of the High Court.
[2]
The respondents made no attempt to engage the provisions of rule 7.
On this basis alone, this point stands to be dismissed. In
any event,
I am satisfied that the applicants were entitled to rectify a
typographical error in the replying affidavit. There was
no prejudice
to the respondents.
Prescription
[23]
The relevant provisions of the
Prescription Act No. 68 of 1969
are as follows:
7
Extinction
of servitudes by prescription
(1)
A servitude shall be extinguished by prescription if it has not been
exercised for an uninterrupted period of thirty years.
”
11
Periods
of prescription of debts
The
periods of prescription of debts shall be the following:
(a)
thirty years in respect of-
(i)
any debt secured by mortgage
bond;
(ii)
any judgment debt;
(iii)
any debt in respect of any
taxation imposed or levied by or under any law;
(iv)
any debt owed to the State in
respect of any share of the profits, royalties or any similar
consideration payable in respect of
the right to mine minerals or
other substances;
(b)
fifteen years in respect of any
debt owed to the State and arising out of an advance or loan of money
or
a sale or lease of land by
the State to the debtor; unless a longer period applies in respect of
the debt in question in terms of
paragraph (a);
(c)
six years in respect of a debt
arising from a bill of exchange or other negotiable instrument or
from a notarial contract, unless
a longer period applies in respect
of the debt in question in terms of paragraph (a) or(b);
(d)
save where an Act of Parliament
provides otherwise, three years in respect of any other debt
”
[24]
The
applicant contends that because the obligation on the respondents to
complete the construction within a fixed time period arises
from a
registered restrictive condition of title,
[3]
the relevant prescription period is 30 years. They argue in this
regard that a restrictive condition of title constitutes a servitude
as contemplated in
section 7
of the
Prescription Act. Accordingly
,
the 30 year period provided for in
section 7(1)
applies.
[25]
It is not necessary for me to decide this issue. It is
complicated by the fact that the operative time period in respect of
the
respondents was contained in an agreement that does not form part
of the title deed. I will assume in favour of the respondents
that
the shortest period of three years as provided for in
section 11(d)
of the
Prescription Act applies
.
[26]
In terms of
section 12(1)
of the
Prescription Act prescription
commences to run “as
soon as
the debt is due”.
In
Truter
& Ano v Deysef
Van Heerden JA held as follows:
“
For
the purposes of the Act, the term ‘debt due’ means a
debt, including a delictual debt, which is owing and payable.
A debt
is due in this sense when the creditor acquires a complete cause of
action for the recovery of the debt, that is, when the
entire set of
facts which the creditor must prove in order to succeed with his or
her claim against the debtor is in place or,
in other words, when
everything has happened which would entitle the creditor to institute
action and to pursue his or her claim.
”
[27]
The point at which the “entire set of facts”
constituting the applicant’s cause of action arose was on 9
April
2013 when the period for construction of the residential
dwelling expired. Clearly if the applicant had commenced legal
proceedings
before that date, they could have been defended on the
basis that the proceedings had been commenced prematurely.
[28]
The prescription period having commenced to run on 9 April
2013, it has yet to expire. Accordingly, the applicant’s claim
has not prescribed.
Tacit
extension
[29]
The respondents argue that because the applicant waited until
23 October 2013 to send a letter of demand, allowed a further delay
during which various letters were addressed to the applicant by the
respondents and also delayed in properly serving the application
(having originally only emailed it to the respondents), they had
tacitly consented to an extension.
[30]
In terms of the restrictive condition of title itself, the
time period can only be extended in writing. On this ground alone,
there
is no substance in this defence.
[31]
In any event, even if it could do so, I am not persuaded that
the applicant has by its conduct waived its right to enforce the
restrictive
condition of title.
In
Vermeulen’s Executrix v Moolman
[4]
Innes
J held that -
“
the
well-known principle applies that an intention to waive rights of any
kind is never presumed. There must therefore be clear
evidence not
only of the owner’s knowledge, but of his inaction for a
sufficient time and under effective circumstances.
”
[32]
The applicant’s conduct in affording the respondents a
period of grace in which to remedy their breach of the restrictive
condition of title and the extension agreement, is not automatically
to be equated with a tacit waiver of its rights.
Balance
of convenience
[33]
The respondents argued that the “balance of convenience”
favoured them. The present application and consequential process
of
retransfer would only delay construction even further, than if the
applicant allowed the respondents to continue with their
construction. The balance of convenience also favoured them, they
argued, because the applicant would
be
stuck with a “half erected building” if relief was
granted in the applicant’s favour.
[34]
Counsel for the respondents was unable to refer me to any
authority for the balance of convenience being a defence to an
application
to enforce a restrictive condition of title or a term of
a binding agreement, nor is there any.
Conclusion
[35]
In the circumstances, I am satisfied that the applicant has
made out a case for enforcement of the restrictive condition of
title.
I accordingly make the following order:
1)
The first and second respondents are ordered to take the
necessary steps to re-transfer the property described as Erf 2662,
Midstream
Estate, Extension 31 Township, Registration Division JR,
Gauteng, held by deed of transfer T37212/2012, to the applicant.
2)
The first and second defendants are to bear the costs of such
retransfer.
3)
The applicant is to pay to the first and second respondents
the amount of R520 000,00 (five hundred and twenty thousand rand)
against
transfer of the property in terms of paragraph 1, less any
amounts as contemplated in paragraphs 5.1 and 5.2 below.
within
7 (seven) days from date of such request by or on behalf of the
applicant.
5)
Should the first and second respondents refuse or fail to sign
the relevant documentation to give effect to the order in paragraphs
1 and 4 above, then the deputy sheriff having jurisdiction is
authorised and directed to sign all necessary documents on their
behalf to -
5.1.
) effect re-transfer of the aforementioned property from the
first and second respondents to the applicant, against payment of the
amount of R520 000,00 (five hundred and twenty thousand rand), less
the costs payable to the sheriff, transfer fees, clearance
fees at
the local authority and homeowners association in respect of the
transfer; and
5.2.
) discharge any indebtedness in respect of the bond secured
over the property;
6)
The applicant is entitled to register this order at the
Registrar of Deeds.
7)
The relief in paragraphs 1 to 6 of this order is without
prejudice to the rights of the fourth respondent as bondholder over
the
property.
8)
The first and second respondents are ordered to pay the costs
of this application.
ALAN
DODSON
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION
PRETORIA
Counsel
for the applicant: ADV J WASSERMAN SC
Instructed
by: TIM DU TOIT & CO INC,
433
Rodericks Road, cnr Sussex Road, Lynnwood,
Pretoria
Counsel
for the first and
second
respondents: ADV T W BABEDI
Instructed
by: NDEKWE ATTORNEYS,
49B
Die Uitsig Road, Eldoraigne Ext. 3, Centurion
Date
of hearing :
6 May 2015
Date
of judgment:
10 June 2015
4
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA) at
[16]
.
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 paragraph 1)
above,
[1]
Translated, this means -
"B.
SUBJECT TO the following condition imposed and enforced by BONDEV
MIDRAND PROPRIETARY LIMITED (No 2000/027600/07) (the
transferor)
namely:
The
transferee, his successor in title or assigns, is obliged to erect a
residence on the property within 18 (eighteen) months
from 7
December 2007, failing which the transferor shall be entitled, but
not obliged, to demand that the property be transferred
to the
transferor at the expense of the transferee against payment of the
original purchase price, interest free. The transferee
may not,
during the said time period, sell or transfer the property without
written permission of the developer. This time period
may in the
discretion of the developer be extended."
[2]
Eskom v Soweto City Council
1992 (2) SA 703
(W);
Unlawful
Occupiers, School Site v City of Johannesburg
2005 (4) SA 199
(SCA);
Games
& Ano
v
Telkom
Namibia Ltd
2004 (3) SA 615 (SCA).
[3]
On the nature of restrictive conditions of title, see J Van Wyk
Planning Law 2
nd
Ed Juta para 7.7.3.5 p 310-317.
[4]
1911
AD 384
at 409.