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[2014] ZAGPPHC 170
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Bonthuys and Another v Potgieter and Others (16760/2014) [2014] ZAGPPHC 170 (3 April 2014)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: 16760/2013
DATE:3/4/2014
IN THE MATTER BETWEEN:
NICOLAAS
ALBERTS BONTHUYS
FIRST
APPLICANT
MARYNA
JOHANNA BONTHUYS
SECOND
APPLICANT
AND
DANNY
POTGIETER
FIRST
RESPONDENT
EMILE
COLLINS
SECOND
RESPONDENT
HESTER
M. HALL
THIRD
RESPONDENT
VARSITY
RENTAL BK
FOURTH
RESPONDENT
FREDERIK
CHRISTOFFEL
GROENEWALD
DREYER
FIFTH
RESPONDENT
DIE
REGISTRATEUR VAN AKTES
SIXTH
RESPONDENT
TLOKWE
MUNISIPALITEIT
SEVENTH
RESPONDENT
JUDGMENT
KOLLAPEN
J:
1.
In this application the following relief is sought by the applicants:
a)
A declaratory order that the third respondent has no right in law to
lease the property known as Unit
1 in the Sectional Title Scheme
Abacus 628/2007 situated at [……….] and held
under Title Deed ST [………]
(hereinafter referred
to as ‘the unit’) to the first and second respondents or
at all;
b)
An order evicting the first and second respondents from the unit;
c)
Costs of the application to be borne by any of the respondents
opposing the application.
2.
The third respondent opposes the application and the relief sought.
3.
THE BACKGROUND AND THE RELEVANT FACTS
3.1
The applicants and the fifth respondent concluded a written agreement
of sale on the 26
th
of October 2012 in terms of which the
applicants purchased the property described as Unit 1 in the
Sectional Title Scheme Abacus
(‘the unit’) to which
reference has already been made. Transfer of the unit was effected in
the name of the applicants
on the 29
th
of November 2012 by
the sixth respondent.
3.2
After the registration of transfer the applicants discovered that the
unit was being occupied by the first and second respondents in
accordance with a lease agreement that the latter concluded with
the
third respondent.
3.3
The stance of the applicants is that the occupation of the unit by
the
first and second respondents is unlawful and they accordingly
seek the relief as set out hereinabove as against those respondents
as well as the declaratory relief in respect of the third respondent.
3.4
It warrants mention that the intention of the applicants when
purchasing
the unit was to provide accommodation for their daughter,
a university student. When they were unable to obtain
occupation
of the unit, they were offered occupation of Unit 6,
Abacus, which they accepted as an interim measure pending the
finalisation
of this application.
4.
The factual matrix however becomes more complex and intricate when
one has regard to the stance of the third respondent in her
opposition to the application which essentially is that:
4.1
During 2006 she entered into a written agreement to purchase a unit
known
as unit 5 in the Abacus Sectional Title Scheme. The deed of
sale described the unit as Unit 5 and in addition its location was
identified on the developer’s plan as Unit 5. There was
consensus between the developer and herself both with regard to the
description of the unit, as well as its physical location.
4.2
Transfer of unit 5 was effected to her on the 27
th
of June
2006 in terms of Title Deed ST [……….]. It
appears however that when the Surveyor General prepared
the Sectional
Title Plan, the numbering of the various units was unilaterally and
erroneously changed with the result that the
physical location of the
various units as depicted on the Surveyor General‘s plan
differed from those on the developer’s
plan. It is not in
dispute that the developer’s plan served as the basis for the
identification of the unit sold to the third
respondent and to the
majority of the purchasers of units who purchased at the time.
4.3
If one has regard to the Surveyor General’s plan then it is
clear
that what transpired is that while the location of Unit 5 on
the developer’s plan was at the far end of the building marked
as ‘5’, unit 5 was now in terms of the Surveyor General’s
plan, at the front end of the building. This is evident
from the
copies of the developer’s plan and the Surveyor General’s
plan annexed hereto.
4.4
It is not clear how this error occurred but it is hardly in dispute
that
there was a changing of the unit numbers on the Surveyor
General’s plan which was not in accordance with the actual
location
of the units the third respondent as well as other
purchasers bought.
4.5
The effect of this is that while the third respondent bought and
obtained
transfer of unit 5, in truth and reality she was in
occupation of unit 1 and exercised the rights of ownership in respect
of unit
1, if regard is had to the plan of the Surveyor General.
4.6
It appears that neither the third respondent nor any of the other
original
purchasers were aware of this inconsistency between what
they believed they had purchased and what was depicted on the
Surveyor
General’s plan. From the year 2006 or thereabouts all
of them continued to occupy and / or exercise their rights of
ownership
of the units as located on the developer’s plan.
4.7
It also appears that all of the owners used the numbering of the
units
as per the developer’s plan in physically identifying
their units in that door numbers on the units corresponded with those
on the developer’s plan. In this regard the third respondent
alleges that her unit was known as unit 5 and the other units
were
numbered on the same basis. She has attached a photograph of the
front door of her unit which reflects the number ‘5’
on
it.
4.8
In the context of this application she contends accordingly that unit
1 as per the developer’s plan appears as unit 6 on the Surveyor
General’s plan.
4.9
It appears that matters proceeded without incident with all and
sundry
being blissfully unaware of the conundrum created by the
Surveyor General’s plan, until the owner of the unit described
as
unit 1 (reflected as unit 6 on the developers ‘s plan) was
sequestrated .
4.10
The fifth respondent purchased the unit and transfer was accordingly
passed to him
of Unit 1 which he in turn sold to the applicants.
4.11
At that stage, when the problem was discovered, the applicant states
that the developer
and attorney involved undertook to remedy the
situation by way of a correcting deed. In addition, all of the
owners, with the exception
of the fifth respondent, agreed to
continue to remain in occupation of the units they occupied. What
emerges from the papers is
that none of the original owners regarded
the problem as significant but rather as an error that could be
remedied so as to ensure
that the Surveyor General’s plan was
consistent with the location of the properties they bought and in
respect of which they
exercised ownership rights.
4.12
The process of correcting the title deeds and diagrams has not been
completed and
it appears that it will only be possible if all the
owners agree thereto. In addition it may not be the appropriate route
to follow
if regard is had to the provisions of the Sectional Titles
Act which suggests that in instances such as these, an order of Court
may be required to cancel the Sectional Title Plan.
4.13
Accordingly and on the basis of the above the stance of the third
respondent is that
while she concedes that the applicants are the
registered owners of the unit described as unit 1 Abacus, that unit
in her view,
is not the unit she owns and occupies even though the
plan of the Surveyor General depicts it as such. Her stance is
that
her rights of ownership in the unit she purchased by way of
description and location cannot change, be diluted or rendered
irrelevant
simply on account of an error made on the Sectional Title
Plan by the Surveyor General.
4.14
The applicants on the other hand contend that the history of what
transpired at Abacus
is not relevant to these proceedings and that
they are the registered owners of Unit 1 which in their view
can only be unit
1 as depicted on the Surveyor General‘s plan
and accordingly they are entitled to the relief they seek.
POINTS
IN LIMINE
5.
The third respondent has in addition to its opposition on the merits
also raised various points
in limine
and they include:
a)
That there is a dispute of fact regarding ownership which dispute the
applicants should have foreseen;
and
b)
That there has been non-joinder of the other owners of units in
Abacus as the relief the applicants seek
would have a direct and
substantial impact on the interests and the rights of other owners in
general and in particular on the
owner of Unit 6 as per the Surveyor
General’s plan (Unit 1 on the developer’s plan).
THE
ISSUE OF NON-JOINDER
6.
The unique and somewhat unusual circumstances that form the factual
basis of the dispute between the parties is not confined
to the
parties themselves, even though in a narrow sense the relief sought
is essentially relief against the third respondent and
not any other
owners of units in Abacus.
7.
It is trite that a third party who has, or may have, a direct and
substantial interest in any order the court might make in proceedings
or if such order cannot be carried out without prejudicing that
party, is a necessary party and should be joined in the proceedings.
(See Herbstein and Van
Winsen, The Civil Practise of the High Courts of South Africa (5th
Edition) at page 215).
8.
In
AMALGAMATED ENGINEERING UNION v MINISTER OF LABOUR
1949
(3) ALL SA 436
(A)
, the Court employed two tests in order to
decide whether a third party had a direct and substantial interest.
The first was to
consider whether the third party would have
locus
standi
to claim relief concerning the same subject matter. The
second was to examine whether a situation could arise in which,
because
the third party had not been joined, any order the court
might make would not be
res judicata
against him, entitling
him to approach the courts again concerning the same subject matter
and possibly obtain an order irreconcilable
with the order made in
the first instance.
(See also
TRANSVAAL
AGRICULTURAL UNION v MINISTER OF AGRICULTURE AND LAND AFFAIRS AND
OTHERS
[2005] JOL 14177
(SCA)
).
9.
The first test has been described as joinder on the basis of
necessity as the Court, once a direct and substantial interest has
been demonstrated, has no discretion and must order joinder. In the
second instance the test has been described as joinder on the
basis
of convenience in which the Court has a discretion to order joinder.
(See
HAROUN v
GARLICK
2007 (2) All SA 627
(C)
at para 14).
10.
The reference to a direct and substantial interest relates both to
the subject matter of the litigation as well as interest
in the
outcome thereof. Applying this test to the facts on hand it is clear
that while the relief sought is as against the first
to the third
respondents only, the issue in dispute is the error in the location
of the unit, regard being had to the difference
in location on the
developer’s plan as compared to the plan of the Surveyor
General. This is the crux of the dispute between
the parties and has
relevance for all of the owners of units in Abacus in that their
rights as owners will be directly impacted
upon by any order this
Court is called upon to make.
11.
Simply by way of illustration, if the Court was inclined to grant the
applicants the relief they seek, the third respondent
would have to
vacate unit 1 and would in turn have to lay claim to unit 5 as per
the Surveyor General’s plan which is currently
being occupied
by one Ingrid Henning, who in turn would have to lay claim to unit 9
and so the chain and cascading effect will
continue and ultimately
impact on all of the owners. This would have a domino effect and thus
the order this Court is called upon
to make will in my view have a
direct and substantial interest for the other owners of units in
Abacus. In this regard, any order
which the court may make will of
necessity be founded on the acceptance or otherwise of the Surveyor
General’s plan. The
Surveyor General’s plan as compared
to the developers plan is the common thread that runs through the
claims ownership of
all the owners and on that basis the subject
matter of the litigation as well as the outcome thereof will
constitute the basis
for all the other owners having a direct and
substantial interest.
12.
In addition and even if I am wrong on whether the requirements of a
direct and substantial interest have been satisfied, my
view for
largely the same reasons outlined above, is that it would be
convenient to join the other owners and I would have exercised
my
discretion to this effect. In this regard it is not inconceivable
that, in the absence of joinder and in the event that this
court
grants the relief the applicants seek, the third respondent brings
proceedings for the eviction of Ms Henning, who occupies
unit 5. In
such an action the court may well refuse such relief and take a view
contrary to the view that the Surveyor General’s
plan is
determinative of the matter. Such an order would in substance be
irreconcilable with the order this court may make to the
extent that
it may lead to differing interpretations of the same legal dispute
with widely differing and irreconcilable outcomes.
In the example
postulated above, the third respondent would essentially be left
without any relief under the same circumstances
as the applicants
were found to be entitled to relief.
13.
In this regard even though the applicants contend that they were
unaware of the situation at Abacus at the time of the sale
and
transfer, they certainly became aware of it before the launch of
these proceedings. Their stance, that it was of no relevance
to them,
is, with respect, incorrect. Once they became aware of what had
transpired as intimated to them by Mr Hein du Plessis
after the
latter was confronted, they would have been alive to the cascading
effect of the action they instituted and were under
an obligation to
join the other owners of units in Abacus. The failure to join has in
my view rendered the point
in limine
sustainable and the
relief sought impermissible.
THE
MERITS
14.
Assuming that I may have erred in coming to the conclusion that I
have on the point
in limine
, I have also considered the merits
of the dispute.
15.
From the summary of the facts underpinning the dispute it would
appear that the central and overriding consideration relates
to
ownership and in particular the content of that ownership, which is
disputed, not in its technical sense, but in its substantial
sense.
16.
The right to property, given the power dimensions in society as well
as the history of both its acquisition and its disposal,
has
constantly been the terrain of almost universal contestation. In
EX
PARTE CHAIRPERSON OF THE CONSTITUTIONAL ASSEMBLY: IN RE CERTIFICATION
OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA
[1996] ZACC 26
;
1996,
1996 (4) SA 744
(CC)
at paragraph 72, the Constitutional Court
concluded that ‘no universally recognised formulation of the
right to property exists’
and the author Van Der Walt in
Constitutional Property Law (3
rd
edition) concludes that
the negative formulation in section 25 of the Constitution was widely
accepted as an appropriate formulation
that provides implicit
protection for the holding of property.
Section
25 of the Constitution provides that:
‘
No one may be
deprived of property except in terms of law of general application…’
17.
Accordingly and at the very least, the protection of property rights
has been accorded constitutional recognition, even in its
negative
formulation.
18.
In the context of this application it becomes necessary and
inevitable to consider what has emerged as the competing rights
of
the applicants and the third respondent to the property known as unit
1 in the title deed of the applicants, but erroneously
located on the
Sectional Title Plan which forms part of the Title Deed.
THE
HISTORY AND THE MANNER OF ACQUISITION OF THE PROPERTY / PROPERTIES IN
QUESTION
19.
The applicants allege that they bought unit 1 after it was pointed
out to them by an agent for the fifth respondent, one Hein
du
Plessis. It is not in dispute that they never inspected the inside of
the property in question but inspected other units which
would have
been similar in size and layout to the unit they intended to
purchase.
20.
It is not clear from the papers precisely which unit was pointed out
to them. The stance of the third respondent is that all
the units in
Abacus are numbered in accordance with the numbers that originally
appeared on the developer’s plan and indeed
that the unit she
occupies is numbered as Unit 5. She attaches a photograph of the
front door of the unit she occupies which clearly
depicts the number
5 on the door. She also states that the unit in the Abacus complex
which is numbered ‘1’ on its
door is in fact the unit
depicted as unit 6 on the Surveyor General’s plan and on the
basis of the above contends that if
the applicants were pointed out
the location of unit 1 it could not have been the unit she occupies
but in fact unit 6, which was
and still is marked as unit 1.
21.
While the applicants dispute this, it is not clear on what basis they
do so as the number ‘5’ is clearly visible
from the
photograph the third respondent relies on and neither the testimony
of the applicants nor that of Mr du Plessis provides
any insight into
the actual location of the unit that was pointed out.
22.
On the other hand the deed of sale which the applicants signed has as
an attachment, the Sectional Title plan which depicts
unit 1 as the
property at the far end of the property – the same property
that the third respondent has leased to the first
and second
respondents.
23.
The applicants also point out that there has been a change of
ownership in respect of unit 1 which has been transferred on three
occasions without the sectional title plan being rectified. In this
regard it is of course significant to note that if indeed the
unit
was transferred on three occasions and the rights of ownership and
occupation which the third respondent claims in respect
of the unit
were never interfered with on those occasions, this lends itself
strongly to the conclusion that while unit 1 changed
hands, there
were no physical consequences for the third respondent’s
occupation.
24.
This must in my view strongly suggest that even though the unit
described as unit 1 was being transferred on those various occasions,
the physical location of that unit was not unit 1 as depicted on the
Surveyor General’s plan but some other unit. It simply
could
not have been unit 1 as located on the Surveyor General’s plan
because if it was, then it is highly improbable that
any of those
purchasers would not have sought at least some form of physical
control over the unit which would then have brought
them into
conflict with the third respondent who was exercising rights of
ownership during this period. The fact that no
such conflict or
contestation arose must strongly suggest that while unit 1 may have
changed hands as unit 1 described in the Title
Deed and the Surveyor
General’s plans, in reality what physically changed hands must
have been another unit, and more likely
unit 6 (which was unit 1 on
the developer’s plan).
25.
Arising out of this of course is what are the consequences of the
applicants being the registered owners of unit 1 with its
location as
depicted on the Sectional Title Plan? Have they as a result acquired
rights in and to the unit which trump the rights
of the third
respondent? It is accordingly necessary to examine the third
respondent’s acquisition of the unit that she claims
ownership
of.
26.
The third respondent and the developer, Mr Dawid Maree, both confirm
that what was sold by the developer and purchased by the
third
respondent was unit 5 in Abacus which was described by both
description and location in the deed of sale. Clearly, Unit 5
located
on the developer’s plan at the far end of the property was what
the seller intended to sell and what the purchaser
intended to
purchase. The author Christie in the Law of Contract in South Africa
(6
th
edition), makes the observation that if at the time
of sale the block (sectional title units) have not been built, the
unit may
be identified by reference to a plan. This is precisely what
occurred here. There was consensus on this aspect and all
things
being equal the process of registration in the Deeds Office
was meant to give effect to the agreement between the parties.
27.
In this regard it warrants mention that the deed of transfer and
accompanying documents merely give effect to the deed of sale
which
continues to constitute the primary and only source with regard to
the terms and conditions of the agreement.
28.
After transfer was effected the third respondent acted consistently
with what she believed were the rights of ownership she
acquired
following the deed of sale and subsequent transfer. She exercised all
the rights of owner in relation to the unit and
she did this without
her right to do so being contested. In her view, and it is a
perfectly reasonable view in my consideration,
she received what she
purchased and even when she subsequently discovered the error on the
Surveyor General’s plan, it did
not change her stance with
regard to her claim to ownership.
29.
The applicants, relying on the deed of sale entered into between the
third respondent and the developer, have argued that the
third
respondent must have contemplated that the boundaries of the property
she bought would be those shown on the final approved
plan and in
addition accepted that the property description on the sectional plan
may differ from the description in the agreement.
The
relevant provision in the deed of sale provide as follows:
‘
9.1
The
purchaser acknowledges that the sectional plan has not yet been
approved and hereby agrees that the exact boundaries forming
part of
the property shall be those shown on the final approved sectional
plan. The seller warrants that subject to 9.3 below the
boundaries
will be substantially in accordance with those set out in the
annexures hereto, and that the undivided share of the
common property
allocated to the section shall be in accordance with the
participation quota which is ultimately determined in
terms of the
Act upon approval and registration of the sectional plan.
9.3
If the boundaries or the area of the section or any other section
or building differs in major respects from the boundaries or…as
shown on the layout plan annexed hereto, or if the number of the
section being altered or the undivided share in the common property
attaching to the property is altered; or if the exclusive use area
(if applicable) adjoining the section is altered, the purchaser
undertakes to accept transfer of the property as defined and
renumbered in the sectional plan approved by the municipality and
the
Conveyer-General
9.4
The Purchaser acknowledges that the property description on the
sectional plan may differ from the description in the agreement.’
30.
When one has regard to those provisions they provide in the
main for a changed description and possibly changed boundaries
but
even then the seller warrants that the boundaries ‘will be
substantially in accordance with those set out in the annexures
hereto’. It is common cause that included amongst those
annexures are the developer’s plan which depicts the location
of Unit 5 and to which reference has already been made.
31.
None of these provisions lay the basis for the submission that the
third respondent was obliged to accept transfer of a property
different in substance from the one she purchased. It is simply
untenable to suggest that those provisions can justify the situation
where a party who purchases and agrees on both description and
location of the property purchased, must be content with another
property different in location because of an error on the part of a
third party – in this case the Surveyor General.
32.
This would in my view run counter to the principle of
pacta sunt
servanta
and the doctrine of contractual freedom which is firmly
embedded in our law. Rather than promoting certainty and
predictability
it would result in uncertainty and would in any event
give one contracting party the right to unilaterally change the
material
terms of a contract, namely the subject matter of the
agreement. The interpretation that the applicants seek to place on
Clause
9 of the Deed of Sale is simply unsustainable in my view.
33.
It is trite that the principle of ‘
pacta sunt servanda’
constitutes an important feature of the law of contract. It provides
for certainty and predictability in a rapidly changing world
and our
Courts have consistently recognised its pivotal role in contract law.
(See
BARKHUIZEN v
NAPIER
[2007] ZACC 5
;
2007 (5) SA 323
(CC)
)
34.
Accordingly and in the absence of public policy considerations, what
the parties have agreed on must be given effect to and
the role of
regulatory and other structures such as the sixth respondent is
precisely that. Of course it may prescribe procedures
and form to be
followed but it cannot, either by design or by error or omission,
remake the parties’ contract or give effect
to something other
than what the parties have agreed upon.
35.
It was argued that to the extent that the transfer of unit 1 (both as
described and located) to the applicants has not been
challenged, it
continues to remain valid. In
KNYSNA HOTEL CC v COETZEE
N.
O.
[1997] ZASCA 114
;
1998 (2) SA 743
(SCA)
, the Supreme Court of Appeal
characterised our system of registration as a negative one where it
could not simply be said that
the person in whose name the property
was registered was necessarily the owner of the property. The Court
took the view that somebody
else for example could have become the
owner of the property without this being reflected in the Deeds
Office. The Court however
also pointed out that although the transfer
could be challenged it remained valid until set aside by an order of
Court.
36.
In expressing the same sentiments, the learned author Delport in
South African Property Practise and the Law takes the view
that in
the normal course of events the owner of immovable property is the
person in whose name the property is registered. He
points out that
the definition of owner in the
Deeds Registries Act 47 of 1937
is
relevant for the purposes of the
Deeds Registries Act only
and does
not change the common law meaning of owner of immovable property.
37.
From this must follow the conclusion that notwithstanding the error
in the Surveyor General’s Sectional Title Plan, the
third
respondent was and continues to be the registered owner of unit
5 Abacus, albeit that such unit was depicted as unit
1 on the
Surveyor General’s plan. To suggest, in the light of what is
set out above and in particular the history of this
development and
what was purchased, acquired and regarded as their property by the
respective owners, that the third respondent
was the owner of unit 5
as it is located on the Surveyor General’s plan, would
undermine the rights and interests of all
those owners who bought
units in the period 2006/7 as well as run contrary to the principles
of contract and the sanctity of contracts
that have been alluded to.
38.
The issue of what has been described as the non-challenge to the
applicants’ title has been raised. If one has regard
to the
chronology of the matter then it appears that after the error /
discrepancy arose, a meeting of the owners of Abacus was
convened on
the 6
th
of September 2012. At this meeting it was recorded
that most of the owners were in occupation of units they had chosen
and purchased
but that the description of the units they were
occupying differed from that which appeared in their title deeds.
There was a suggestion
that the Sectional Title Plan be re-registered
to deal with the error that occurred but that the consent of 100% of
the owners
was required. At this meeting Mr Du Plessis,
representing the fifth respondent, intimated that the fifth
respondent was against
re-registration but that he was willing to
re-consider his stance upon proof that the units that were originally
purchased were
incorrectly registered. It is not clear what came out
of this.
39.
Reverting to the question of the challenge to the applicants’
title deed, it appears that what had become apparent to
at least the
majority of the owners by September 2012 was the need to rectify
matters as opposed to challenging the respective
title each held, and
the absence of a formal challenge to the title deed of the applicants
must be viewed and considered in context
and my view in this regard
is that the steps proposed by the owners appeared reasonable and
the stance of the fifth respondent
in requiring some proof of the
error appeared reasonable as well. It is not clear what happened
beyond this meeting in providing
such proof to the fifth respondent,
which proof was clearly available if one has regard to the papers in
these proceedings. Under
such circumstances a formal challenge to the
fifth respondent’s title would have been premature.
40.
On the same basis I am not of the view that the remedy of the third
respondent and other owners lies in challenging the title
they each
hold as well as the title of the applicants. Given the circumstances
under which the error in the Surveyor General’s
plan occurred,
it can hardly be said to be impractical or unreasonable for them to
have attempted to resolve the matter in a non-adversarial
manner. I
still hold the view that that is possible.
41.
I am also concerned that when Mr du Plessis concluded the sale of
unit 1 with the applicants, he was well aware of the problems
at
Abacus and the attempts to resolve them. He was, after all, present
at the meeting of the 6
th
of September 2012 when the
matter was discussed and where he represented the fifth respondent.
It is inexplicable that he failed
to inform the applicants of the
true state of affairs at Abacus.
42.
In the circumstances, acceding to granting the relief sought by the
applicants would constitute taking a very narrow, formal
and
technical approach to a matter of some complexity. It would ignore
and undermine the principles of ownership which have, over
time,
developed in our law.
43.
Accordingly and on what is before me, it may be said that the
applicants are the registered owners of unit 1 Abacus located
as such
on the Sectional Title Plan. I am less certain as to whether it could
be equally said that they are the true owners of
the unit as
described and located on the Surveyor General’s plan given the
history of the third respondent’s acquisition
and exercise of
the rights of ownership in respect of the same unit as located on the
developer’s plan.
44.
On the contrary it must be eminently arguable that notwithstanding
the error in location on the Surveyor General’s plan,
the
uncontroverted evidence in these proceedings compellingly
demonstrates that the third respondent is the owner of Unit 5 Abacus
which unit is located in the area erroneously depicted as unit 1 (as
opposed to unit 5) on the Sectional Title Plan.
45.
For these reasons I would also have dismissed the application on its
merits.
ORDER
43.
In the circumstances I make the following order:
The application is
dismissed with costs.
N
KOLLAPEN
JUDGE
OF THE HIGH COURT (GAUTENG DIVISION, PRETORIA)
16760/2013
HEARD
ON: 18 MARCH 2014
FOR
THE APPLICANTS: ADV G. F. HEYNS
INSTRUCTED
BY: SEYMOUR DU TOIT BASSON INGELYF (ref: M Day/MD3477/ek)
FOR
THE THIRD RESPONDENT: ADVOCATE Z. F. KRIEL
INSTRUCTED
BY: LE ROUX & DU PLESSIS INC (ref: P9558/du Plessis/PEL)