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[2013] ZANCHC 45
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Pieterse and Another v Hartswater Hotels (Pty) Ltd and Another (1322/2012) [2013] ZANCHC 45 (13 December 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
[NORTHERN
CAPE HIGH COURT, KIMBERLEY]
CASE
NR : 1322/2012
DATE:
13/12/2013
JUDGMENT
ON LEAVE TO APPEAL
PETRUS
FRANCOIS
PIETERSE
.......................................................................................
FIRST
APPLICANT
PETRUS
JOHANNES AND JACOBA ADRIANA
JANSE
VAN
RENSBURG
…..........................................................................................
SECOND
APPLICANT
AND
HARTSWATER
HOTELS (PTY)
LTD
............................................................................
FIRST
RESPONDENT
REGISTRAR
OF DEEDS: NORTH WEST
PROVINCE
.......................................
SECOND
RESPONDENT
Date
of the hearing: 24 October 2013
Date
Delivered: 13 December 2013
PHATSHOANE
J.
1. Mr
Petrus Francois Pieterse, the first applicant and Mr Petrus Johannes
and Ms Jacoba Adriana Janse Van Rensburg (the Van Rensburgs),
the
second applicants, brought an application for leave to appeal to the
full-bench of this division against the whole of my judgment
and
order dated 31 May 2013 in terms of which the application for the
confirmation of the cancellation of the notarial long-term
lease
agreement was dismissed with costs; Hartswater Hotels (Pty) Ltd, the
first respondent, was ordered to file an application
for the removal
of the restrictive conditions as appearing at clause B(a), B(b),
B(f)(1), B(f)(3) and B(f)(5) of the title deed
T154/1996 with the
appropriate authority within 30 days from the date of the order; the
counter-application pertaining to the rectification
of the notarial
long-term lease was postponed pending the determination of the
application for the removal of the restrictive conditions
mentioned.
2. The
applicants filed a prolix document totalling 40 pages headed the
application for leave to appeal. The grounds set out therein
are
repetitious, longwinded and largely in a form of argument. Condensed
and without curtailing them, they come down to the following.
2.1 The
Court erred in dismissing the main application with costs in which
the applicants sought, inter alia, the confirmation of
the Van
Rensburgs’ cancellation of the lease agreement on the basis
that Hartswater Hotels had breached the terms thereof
and had failed
to cure the defect within the time period provided for in the
agreement. In particular, it was contended:
2.1.1 That
the Judge erred in finding that the lease agreement authorised the
use of the property contrary to any uses to which
the property might
lawfully be used in terms of its zoning and restrictive conditions
registered against the title, in other words,
for residential
purpose. It was further contended that the state of affairs that are
prohibited by law in the public interest cannot
be perpetuated by
reliance upon the doctrine of estoppel. That there was an obligation
on Hartswater Hotels to procure the removal
of all legal impediments
to its proposed use of the property but it has failed to do so in 13
years of its occupation of the property.
That the registration of
the lease agreement cannot legalise the current unlawful use of the
property or alter conditions registered
against the title.
2.1.2 That
the applicants’ attorneys directed correspondence to Hartswater
Hotels in which it was notified that it was in
breach of clause 9.3
of the notarial agreement in that it was utilising the premises in a
manner repugnant to the title deed conditions.
Further it was
informed that if it did not desist from its illegal use, the notarial
agreement would be cancelled. The applicants
contend that they
properly notified Hartswater Hotels of the breach and were entitled
to cancel the contract based on the terms
of the agreement. This is
what the Court was called upon to consider and it ought to have
confirmed the cancellation of the agreement.
2.1.3 That
the following view expressed at para 34 of the Judgment is
indefensible:
“
On
the evidence it can hardly be said that Hartswater Hotels consciously
trampled the conditions registered against the title. The
sanctity of
the freedom to contract is one of the basic foundations of our law of
contract. In Barkhuizen v Napier
[2007] ZACC 5
;
2007 (7) BCLR 691
(CC) at 707 para
57 the following dictum appears:
“
[57]The
first question involves the weighing-up of two considerations. On the
one hand, public policy, as informed by the Constitution,
requires,
in general, that parties should comply with contractual obligations
that have been freely and voluntarily undertaken.
This consideration
is expressed in the maxim pacta sunt servanda which, as the Supreme
Court of Appeal has repeatedly noted, gives
effect to the central
constitutional values of freedom and dignity. Self-autonomy, or the
ability to regulate one’s own affairs,
even to one’s own
detriment, is the very essence of freedom and a vital part of
dignity. The extent to which the contract
was freely and voluntarily
concluded is clearly a vital factor as it will determine the weight
that should be afforded to the values
of freedom and dignity. The
other consideration is that all persons have a right to seek judicial
redress. These considerations
express the constitutional values which
must now inform all laws, including the common-law principles of
contract.
It
was contended that this is because there is no element of mens rea to
an act in contravention of a statutory provision. It was
argued that
the test is objective, namely, whether or not the act in question is
repugnant to the title deed restrictions.
2.2
That the Court erred in ordering Hartswater Hotels to file an
application for the removal of the restrictive title conditions
which
prohibits the use of the applicants’ property. It is contended
that there is no provision in the Removal of Restrictions
Act, 84 of
1967, authorising anyone, other than the owner of the property
concerned, to apply for the removal of restrictive conditions
registered against the title. The Van Rensburgs will not give consent
to the application for the removal of restrictions while
the bona
fide possessor, Pieterse, will object to such a removal. Therefore,
the administrator would be hard pressed to approve
the application.
In any event, it was contended, the removal of restriction will be
for the entire property and not only for “the
first 5 metres
measured from the street boundary of the Erf, 5 metres into the
property in respect of the entire width of the Erf,”
the
subject of the lease. This would prejudice the applicants.
2.3
That the Court erred in not having dismissed the counter application
for rectification of the notarial lease and in having pended
same
until the application for the removal of the restrictions had been
determined. It was argued that there was no bona fide mutual
mistake
between the parties which would warrant rectification. Therefore, the
notarial lease agreement is void or voidable and
incapable of
rectification.
3.
The test to determine whether leave to appeal ought to be granted was
authoritatively laid down by the Supreme Court of Appeal
in Zweni v
Minister of Law and Order
1993 (1) SA 523
(A) at 531B – E as
follows:
“
The
jurisdictional requirements for a civil appeal emanating from a
Provincial or Local Division sitting as a Court of first instance
are
twofold:
(1)
the decision appealed against must be a ''judgment or order'' within
the meaning of those words in the context of s 20(1)of
the [Supreme
Court] Act; and
(2)
the necessary leave to appeal must have been granted, either by the
Court of first instance, or, where leave was refused by
it, by this
Court. Leave is granted if there are reasonable prospects of success.
So much is trite. But, if the judgment or order
sought to be appealed
against does not dispose of the issues between the parties the
balance of convenience must, in addition,
favour a piecemeal
consideration of the case. In other words, the test is then ''whether
the appeal - if leave were given - would
lead to a just and
reasonably prompt resolution of the real issue between the parties.”
4.
The grounds of appeal enumerated by the applicants are a
regurgitation of the argument which they advanced during the hearing
of the application on the merits. I propose not to burden this
judgment with the analysis thereof because I have dealt with the
same
adequately in the main judgment.
5.
Mr Pienaar, for the applicants, contended that insofar as Hartswater
Hotels breached the conditions registered against the title
the Van
Rensburgs were entitled to terminate the lease agreement. He
contended that the alleged waiver cannot avail Hartswater
Hotels
because it was not pleaded. He further argued that there is a
presumption against waiver and that the onus to prove waiver
is on
the party asserting it; such onus must be discharged on the balance
of probabilities. Counsel contended that in its opposing
affidavit
Hartswater Hotel did not discharge the onus.
6.
One of the principal averments raised in the opposing papers by
Hartswater Hotels is that since its use of the property, in a
period
of 13 years, the Van Rensburgs did not notify it that it was acting
in breach of the terms of the notarial lease or called
upon it to
remedy the breach. The respondent took this further in argument and
contended that the Van Rensburgs waived their rights
to cancel the
agreement and should be estopped as this will lead to an injustice.
7.
In RH Christie, The Law of Contract in South Africa, 5th Edition at
445 the learned author states:
“
The
question is whether, without estoppel, waiver can be created by mere
delay in enforcing a right conferred by the terms of a
contract. In
principle there seems to be no reason why it should not.”
8.
The argument on rectification of the notarial lease is not relevant
for the present purposes because that application is still
pending. I
have set out in the judgment that the determination of the question
whether the agreement is amenable to rectification
is premature as
the current use of the property is clearly inimical to the conditions
registered against the title. I have also
pointed out that upon
finalization of the application for the removal of restrictions any
of the parties may approach this Court
on the same papers suitably
supplemented for the determination of the question of the
rectification of the lease agreement.
9.
Section 2 Removal of Restrictions Act, 84 of 1967, provides in part:
“
Alteration,
suspension or removal of restrictions or obligations in respect of
land by the Administrator:
(1)
Whenever the Administrator of a province in which the land in
question is situate, is satisfied-
(a)
that it is desirable to do so in the interest of the establishment or
development of any township or in the interest of any
area, whether
it is situate in an urban area or not, or in the public interest; or…
he
may, subject to the provisions of this Act, of his own accord or on
application of any person in terms of section 3, by notice
in the
Provincial Gazette of the province alter, suspend or remove, either
permanently or for a period specified in such notice
and either
unconditionally or subject to any condition so specified, any
restriction or obligation which is binding on the owner
of the land
by virtue of-
(aa)
a restrictive condition or servitude registered against the title
deed of the land; or
(bb)
a provision of a law relating to the establishment of townships or to
town planning; or
(cc)
a provision of a by-law or of a regulation or of a townplanning
scheme; or
(dd)
a provision of a townplanning scheme and a restrictive condition or
servitude registered against the title deed of the land;
or
(ee)
a provision of a townplanning scheme and a provision of a law
relating to the establishment of townships or to town planning,
and
which relates to-
(aaa)
the subdivision of the land; or
(bbb)
the purpose for which the land may be used; or
(ccc)
the requirements to be complied with or to be observed in connection
with the erection of buildings or the use of the land.”
10.
I am of the view that, properly construed, s 2 above read with s 3 of
the Removal of Restrictions Act, permits any person to
make an
application for the removal of restrictive conditions registered
against the title deed. Hartswater Hotels has a real right
to the
property by virtue of the registered long term lease. I therefore
fail to comprehend how it could be unable to bring the
application
for the removal of the restrictions.
11.
On the whole I am satisfied that there are no reasonable prospects of
a successful appeal. The application for leave to appeal
must fail.
12.
In the premise, the following order is made:
ORDER
1.
The application for leave to appeal is dismissed with costs.
MV
PHATSHOANE
JUDGE
NORTHERN
CAPE HIGH COURT
Appearance
for the applicant : Adv C.D. Pienaar
Instructed
by Duncan & Rothman
Appearance
for the respondent: Adv.J.C. Coetzer
Instructed
by Elliott Maris Wilmans & Hay