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[2009] ZAGPPHC 15
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Blomerus and Another v Theron (A168/2006) [2009] ZAGPPHC 15 (1 April 2009)
IN THE HIGH COURT OF SOUTH
AFRICA
(NORTH AND SOUTH GAUTENG HIGH
COURT, PRETORIA)
NOT
REPORTABLE
Date:
2009-04-01
Case Number:
A168/2006
In the matter between:
DANIEL JOHANNES
BLOMERUS
First
Applicant
JOHANNA
CATHARINA FREDERIKA BLOMERUS
Second
Applicant
and
LORINDA THEODORA
THERON
Respondent
JUDGMENT
SOUTHWOOD J
[1]
This
appeal is concerned with the validity of a written agreement (‘the
agreement’) entitled ‘Offer to Purchase’
signed by
the parties on 11 September 2003 which reflects that the appellants
sold to the respondent an immovable property (‘Westelike
Helfte
van Plot 53, Marjoranstraat, (1)ha’) for R324 000. According
to the terms of the agreement, when accepted, the offer
to purchase
would constitute a deed of sale and the offer would become a final
and binding sale upon acceptance of the offer by
the seller (i.e. the
appellants) on or before 1 October 2000. The document records that
the purchaser (i.e. the respondent) had
paid a deposit of R100 000
but it is silent about when the balance of the purchase price was to
be paid.
[2] On 15 December
2004, after a dispute arose about the validity of the agreement, the
respondent launched an application seeking
an order –
(1) Declaring that
the written agreement of purchase and sale concluded between the
appellants (the respondents in the application)
and the respondent
(the applicant in the application) and in terms of which the
appellants sold to the respondent the property
correctly known as
Annlin Ext 88 formerly known as ‘Ptn 261, Wonderboom 302, JR’
prior thereto known as ‘Holding
53, Wonderboom Agricultural
Holdings’, physically situated at 53 Marjoran Avenue,
Sinoville, Pretoria is valid and enforceable;
(2) Directing that
the appellants sign all documents and take all steps necessary in
order to transfer the property purchased
by the respondent (being
the portion of Annlin Ext 88 in respect of which an application has
been brought for the approval
of a township to be known as Annlin
Ext 103, which is the property purchased by the respondent);
(3) That the
interdict granted by Motata J on 18 November 2004 be lifted and
curtailed so as to provide only that the appellants
are empowered
and authorised to transfer Annlin Ext 103 to the respondent but
that the interdict in respect of any other person
other than the
appellants stands.
[3] On 25 May 2005
De Vos J granted prayers 1, 2, 3 and 4 of the notice of motion (i.e.
the relief referred to above and costs).
With the leave of the court
a
quo,
granted
on 2 August 2005, the appellants appeal against the judgment and
order.
[4] It is
convenient at this stage to consider the appellants’
application for condonation and for reinstatement of the appeal
and
the appellants’ application to set aside the order made on 18
June 2007. The relevant facts are not in dispute and may
be
summarised as follows:
(1) After the court
a
quo
granted
leave to appeal on 2 August 2005, the appellants delivered their
notice of appeal on 18 August 2005;
(2) Thereafter, to
prosecute the appeal, the appellants were required in terms of Rule
49(6)(a) to apply to the registrar for a
date for the hearing of the
appeal within 60 days after delivery of the notice of appeal and were
required in terms of Rule 49(7)(a),
to file with the registrar, at
the same time, three copies of the appeal record and to furnish the
respondent with two copies
thereof;
(3) The appellants’
erstwhile attorney, Mr Grobler of Ebersohn & Grobler, failed to
apply to the registrar for a date
for the hearing within 60 days
after delivery of the notice of appeal, which
period
elapsed on 10 November 2005. He became involved in other litigation
between the appellants and the respondent and he only
discovered his
error on 9 February 2006 when the respondent’s attorney, Mr
Weber, informed him, at court, that the appeal
had lapsed because of
the failure to apply for a date for the hearing. Mr Weber also said
that he expected an application for
condonation which is a clear
indication that Mr Weber knew that the failure to apply for a date
for the hearing was due to an oversight;
(4) On receiving
this information Mr Grobler immediately consulted counsel and gave
them instructions to prepare an application
for
condonation
for the appellants’ failure to comply with the rule and for
reinstatement of the appeal. Mr Grobler deposed to
a comprehensive
affidavit in support of this application. The appellants served this
application on 15 February 2006;
(5) In his
supporting affidavit Mr Grobler
,
commendably, gives a full, frank and brutally honest account of his
failure to apply timeously for a date for the hearing. According
to
Mr Grobler he was newly qualified and practised primarily as a
conveyancer. He was not versed in the niceties of litigation
and he
did not consult the rules to find out what was required to prosecute
the appeal. He did so only after he was informed that
the appeal had
lapsed;
(6) The respondent did not give notice
to oppose this application for condonation and reinstatement or
deliver an answering affidavit.
Despite deposing to a lengthy
answering affidavit on 15 June 2007 Mr Weber did not deliver this
affidavit until 18 September 2008.
There is no explanation for this
failure to deliver the answering affidavit before the hearing on 18
July 2007 or the delay until
18 September 2008;
(7) On 31 March
2006 Mr Grobler applied to the registrar for a date for the hearing
and purported to deliver the appeal record.
It is
now
clear that this was not the complete appeal record required by the
rules;
(8) In November
2006 the appellants terminated Mr Grobler’s mandate. On 16
November 2006 Mr Hepple of Bezuidenhouts Hepple
Inc, the appellants’
present attorney of record, gave notice that he was acting on behalf
of the appellants and on 24 November
2006 Mr Grobler gave notice to
the registrar and Bezuidenhouts Hepple that he was withdrawing as the
appellants’ attorney
of record. Mr Hepple’s notice that
he was acting on behalf the appellants was filed with the registrar;
(9) On 20 March
2007 the registrar sent to Ebersohn & Grobler and the
respondent’s attorney, Deon C. Weber, a notice entitled
‘Magistrates’ Court Appeals/Rule 50(5)’ advising
that the appeal was enrolled for hearing on 18 June 2007. This
notice was wrong in two important respects. Firstly, it was the
appropriate notice for enrolment of a civil appeal from the
magistrates’
court and not appropriate for an appeal from the
High Court. Secondly, it was sent to the wrong attorney: i.e.
Ebersohn &
Grobler instead of Bezuidenhouts Hepple;
(10) On 4 June 2007
and 15 June 2007 the respondent’s counsel filed their initial
and supplementary heads of argument. The
appellants did not file
heads of argument because their attorney did not know that the appeal
was on the roll. Despite repeated
enquiries by members of the firm
the registrar’s staff persisted in advising them that the
appeal was not on the roll;
(11) The registrar
wrongly enrolled the appeal for hearing by a full bench (two judges)
instead of
a
full court (three judges). On 18 June 2007 the members of the court
had before them an incomplete record, the respondent’s
heads of
argument and counsel for the respondent. No heads of argument were
filed by the appellants and they were not represented.
Both sets of
heads of argument filed by the respondent contained a section
entitled ‘Ad Condonation Application (If Any)’
and
indicated that as at 4 June 2007 the appellants had not delivered a
condonation application. They then proceed to make submissions
in
the event of the appellants bringing such an application on the date
of the appeal. To the knowledge of the respondent’s
attorney,
Mr Weber, the statement that as at 4 June 2007 the appellants had not
delivered a condonation application, was untrue.
On 15 June 2007,
the same day on which the respondent’s supplementary heads of
argument were signed by senior counsel, J.J.
Reyneke SC, Mr Weber
deposed to an answering affidavit dealing with the application for
condonation and reinstatement of the appeal.
Mr Weber has not
explained why he permitted this to be said in both heads of argument
and why he allowed the impression to be
created that the appellants
were not applying for condonation and reinstatement of the appeal;
(12) Since the
appeal was wrongly enrolled before a full bench and not a full court
the court had no jurisdiction to hear the appeal.
It should have
simply removed the matter from the roll and reserved the costs.
Instead, it made an order striking the matter
from the roll and
ordered the appellants to pay the costs;
(13) On 1 August
2007 the appellants launched an application seeking an order in terms
of Rule 42, alternatively, the common law
that the order made on 18
June 2007 be set aside and that the respondents be ordered to pay the
costs of the application on the
scale as between attorney and client,
if they opposed, and if they did not, as the court orders. The
respondent did not give notice
of intention to oppose this
application or deliver an answering affidavit;
(14) On 11 August
2007 Bezuidenhouts Hepple applied to the registrar for a date for the
hearing and the registrar again wrongly
enrolled the matter for
hearing before the full bench as if it was an appeal from the
magistrates’ court. The date for the
hearing was 29 October
2007 but fortunately the parties discovered that the matter was
wrongly enrolled and by agreement removed
the matter from the roll;
(15) The appeal was
then enrolled for hearing before the full court on 20 August 2008.
On that day the appeal record was incomplete
and the respondent’s
counsel was not prepared to argue the appeal. The court postponed
the appeal and the preliminary applications
for condonation and
rescission
sine
die
and
reserved the costs. In argument before this court the parties agreed
that the costs of 20 August 2008 should be costs in the
appeal;
(16) The appeal was finally enrolled
for hearing before this court.
[5] With regard to
the application for condonation and reinstatement of the appeal the
respondent’s counsel relied primarily
on the following
statement in
Saloojee
and Another NNO v Minister of Community Development
1965
(2) SA 135
(A)
at
141C –
‘
There is a
limit beyond which a litigant cannot escape the result of his
attorney’s lack of diligence or the insufficiency
of the
explanation tendered. To hold otherwise might have a disastrous
effect upon the observance of the rules of this court.
Considerations
ad
misericordiam
should
not be allowed to become an invitation to laxity. The attorney,
after all, is the representative whom the litigant has chosen
for
himself’
However the same
judgment states clearly that it has never been held that condonation
will be withheld simply because of an attorney’s
negligence
(141B-C) and that even where there is a high degree of negligence on
the part of the attorney (as there clearly was
in the present case)
condonation may still be granted if there are strong prospects of
success (141H). It is well-settled that
condonation will depend on a
number of interrelated factors. In
United
Plant Hire (Pty) Ltd v Hills
1976
(1) SA 717
(A)
at
720E-G the court described the approach as follows:
‘It
is well-settled that, in considering applications for condonation,
the Court has a discretion, to be exercised judicially
upon a
consideration of all of the facts; and that in essence it is a
question of fairness to both sides. In this enquiry, relevant
considerations may include the degree of non-compliance with the
Rules, the explanation therefor, the prospects of success on appeal,
the importance of the case, the respondent’s interest in the
finality of his judgment, the convenience of the court, and
the
avoidance of unnecessary delay in the administration of justice. The
list is not exhaustive.
These
factors are not individually decisive but are interrelated and must
be weighed one against the other; thus a slight delay
and a good
explanation may help to compensate for prospects of success which are
not strong. See
Liquidators,
Myburgh Krone and Co Ltd v Standard Bank of SA Ltd and Another
,
1924 AD 226
(“the
merits of the appeal may in some cases be very important” –
per
Innes
CJ at p231);
Melani
v Santam Insurance Co Ltd,
1962
(4) SA 531
(A)
at
p532;
Federated
Employers Fire & General Insurance Co Ltd and Another v McKenzie,
1969
(3) SA 360
(AD);’
[
6] In
my view, although it is clear that the appellants’ attorney
negligently allowed the appeal to lapse and the reasons
for doing so
are not acceptable, the appellants did not simply leave the case to
him and do nothing. They frequently enquired
about the progress of
the appeal and clearly intended to prosecute it. In addition the
appellants’ prospects of success
are strong and the matter is
of great importance to the appellants. Accordingly condonation will
be granted and the appeal reinstated.
[7] With regard to
the application for setting aside the order made on 18 June 2007, the
appellants ask only that the costs order
be set aside. The
respondent’s counsel did not contend that the order was not
wrongly sought or wrongly granted and that
the court was not misled
and conceded that the costs order should be set aside.
[8] I turn now to
the merits of the appeal.
[9] There are a
number of factual disputes in the affidavits. For present purposes
the respondent’s version will be accepted
and the issues
decided on the following facts:
(1) The appellants
are married in community of property and reside on their property, 53
Marjoran Avenue, Sinoville, Pretoria which
is portion 261 of the farm
Wonderboom, 302, Registration Division JR, 2.0214 hectares in extent
(portion 261).
(2) In September
2000 the respondent and the appellants entered into an oral agreement
in terms of which, with effect from 1 October
2000, the appellants
sold to the respondent a portion consisting of 1,001 hectares of
portion 261, now known as Annlin Extension
88, for R300 000, payable
by means of a deposit of R100 000 to be paid within 12 months of the
effective date; the respondent
was entitled to immediate possession
and occupation of the property purchased; the appellants would pay
the rates and taxes in
respect of Portion 261 until the date of
transfer; the respondent would take all steps necessary to have
Portion 261 subdivided
and would bear the costs thereof; the
subdivision of the property would be effected in accordance with a
sketch plan to be prepared
after the oral agreement was concluded to
depict the portion of Portion 261 purchased by the respondent and a
portion of Portion
261 to be retained by the appellants.
(3) During the
period 1 October 2000 to 16 June 2001 the respondent paid
various
amounts totalling R100 000 to the appellants.
(4) To effect the
subdivision of the property the respondent appointed
a
specialist town planner, Cadre Plan CC (‘Cadre’). Cadre
surveyed portion 261 and prepared a sketch plan to depict
the
subdivision of Portion 261, i.e. showing the portion of portion 261
purchased by the respondent and the portion of portion
261 to be
retained by the appellants. The parties regarded this as the manner
in which the property would be subdivided. The
sketch plan shows
that portion 261 is rectangular with northern and southern boundaries
(running east west) of 108,81 metres and
eastern and western
boundaries (i.e. running north south) of 185,76 metres. The proposed
boundary dividing the property is shown
from a point 58,67 metres
from the south western corner of the property to a point 50,14 metres
from the north western corner of
the property; i.e. it is not
parallel with the eastern and western boundaries. From the northern
boundary this subdivision line
runs parallel with the eastern and
western boundaries for 76,06 metres and from the southern boundary
the subdivision line runs
parallel with the eastern and western
boundaries for 51,36 metres. The southern and northern ends of these
two lines are connected
by a line running at an angle to the eastern
and western boundaries, 58.97 metres long. The angle is very small
and the subdivision
boundary is 186,39 metres long: i.e. ,63 metres
longer than the eastern and western boundaries. To all intents and
purposes the
two portions of portion 261 would be rectangular. Cadre
prepared this sketch plan within a few days of the first agreement
and
it forms the basis for all further agreements reached by the
parties in respect of portion 261 and the portion which the
respondent
wished to purchase.
(5) On 29 September
2000 Cadre furnished the respondent with a description of the work
necessary for the subdivision and a quotation
for the fees and
expenses. On 4 October 2000 the appellants, as registered owners of
portion 261, signed a power of attorney authorising
Cadre to apply
for the subdivision of portion 261. The power of attorney records
that the appellants would not be liable for the
fees and expenses
associated with the application for subdivision.
(6) On 3 November 2000 Cadre submitted
to the Tshwane City Council an application for the subdivision of
portion 261 which was then
zoned ‘Agricultural’.
(7) Because the
respondent had possession and occupation of the portion of portion
261 she wished to purchase
the
parties agreed that the respondent would pay the appellants’
bond instalments as from 1 December 2001 which the respondent
proceeded to do.
(8) As from O
ctober
2001 and pursuant to a further agreement between the parties the
respondent effected a number of improvements to the portion
of
portion 261 she wished to purchase at a total cost of almost R700
000. These included –
(i) A fence around
the property which in 2001 was replaced by a wall 2,3 metres high
which physically divided portion 261 as
depicted in the sketch plan;
(ii)
A
tennis court – in 2001-2002;
(iii) A borehole
– in 2002;
(iv) An access
road from the subdivided portion to the main road;
(v) A sprinkler
irrigation system;
(vi) Landscaping
of the property and the planting of 115 indigenous trees.
(9) The parties
agreed that the respondent would carry out the improvements at her
own expense and at her own risk.
(10) Cadre
proceeded with the application for subdivision of portion 261 until
Cadre was placed in liquidation in the middle of
2001. In May 2001
the respondent appointed Stefan Frylinck & Associates Property
Consultants (‘Stefan Frylinck’)
to complete the
application for subdivision and on 31 May 2001 the appellants signed
a power of attorney authorising Stefan Frylinck
to apply to the City
of Tshwane Metropolitan Municipality for the subdivision of portion
261.
(11) On 25 September 2001 Tshwane
Municipality informed Stefan Frylinck that the subdivision would not
be approved unless certain
matters were rectified. The relevant
communication reads as follows:
‘
1. A
building plan is required for the proposed Remainder which indicates
the position of existing buildings and sewers in relation
to the new
erf boundaries. This plan must be submitted to the Executive
Director:
City Planning and Development (City Development Control Division) for
approval. It seems that additions have been made without
the
required building plan approval of the Tshwane Metropolitan
Municipality. Alternatively proof must be submitted that building
plans were approved at some stage. The building plans must be
approved before the property will be allowed to be transferred or
registered in the Deeds Office.
2. Only one dwelling per holding is
allowed. Therefore the subdivision can only be approved subject to
the illegal dwellings being
demolished or altered into outbuildings.
Alternatively if the owner does not want to demolish or alter the
illegal dwellings on
the property, a township has been established.
If the owner wishes to alter the dwellings into outbuildings the work
must be executed
before the property will be allowed to be
transferred or registered in the Deeds Office. The owner should take
notice that before
any building may be demolished, a demolishing
permit must first be obtained from the Executive Director: City
Planning and Development
(City Development Control Division).
3.
An
existing French drain may not be nearer than 3,0 metres from any new
boundary. If this condition results from the sub-division,
a new
French drain shall be constructed in which case, a proposed building
drainage plan must be submitted, and the work must be
executed before
the property will be allowed to be transferred or registered in the
Deeds Office.’
(12) As a result of
these problems the respondent and the appellants agreed that the
appellants would apply for a township to be
proclaimed in respect of
portion 261; that the appellants would appoint the professionals and
other persons necessary to bring
such an application and that the
appellants would bear the cost of applying for the proclamation of
the township. Pursuant to
that agreement the appellants appointed
Stefan Frylinck to attend to the application for a township.
(13)
While
the application for the township was pending the parties decided to
formalise the purchase of the portion of portion 261.
On about 11
September 2003 the respondent’s husband informed the first
appellant that the respondent, with the assistance
of her mother,
would purchase the property. The respondent’s husband then
handed to the first appellant the document he
had prepared. As
already mentioned, the parties signed the agreement on 11 September
2003. The price was increased to R324 000
because the respondent had
not paid occupational rental for a period.
(14) When the
parties signed the agreement on 11 September 2003 the application for
the proclamation of the township was pending.
On 23 April 2004
Tshwane Municipality informed Stefan Frylinck that the application
for the establishment of the township on portion
261 (proposed
township Annlin Ext 88) had been approved in terms of section 98(1)
of the Town Planning and Townships Ordinance,
15 of 1986 (the
Ordinance’), subject to the conditions set out in an annexure
to the communication. The sketch plan annexed
to the letter of
approval reflects that portion 261 would be divided into four erven,
numbers 1 to 4, that parts of portion 261
would be utilised for an
access road and that there would be servitudes for municipal services
and storm water.
(15) The respondent then applied for
the division of Annlin Ext 88 into two townships to be known as
Annlin Ext 102 and Annlin Ext
103 and effected payment of the fees
and expenses associated therewith to Stefan Frylinck. On 4 November
2004 the appellants signed
a power of attorney authorising Stefan
Frylinck to apply to the Tshwane Municipality for the division of
Annlin Ext 88 into two
separate townships, Annlin Ext 102 and Annlin
Ext 103.
(16) During August
2004 the first appellant informed the respondent’s husband that
the whole property, i.e. Annlin Ext 88,
could be sold, that the
appellants would pay the respondent R1 150 000 and accordingly that
it would not be necessary to incur
any further expenses. The first
appellant did this because the value of the property had increased
dramatically.
(17) The offer was conveyed to the
respondent by her husband. After it was refused her husband conveyed
the refusal to the first
appellant.
(18) After that the parties obtained
legal advice and a dispute arose as to the validity of the agreement.
(19) On 18 November 2004 the
respondent brought an urgent application to interdict the appellants
from alienating the property.
The appellants did not oppose the
application and consented to an order the terms of which were agreed.
[10] The issue
before the court
a
quo
was
whether the agreement was valid and enforceable. The issues
relating to the validity of the agreement were that the agreement
was invalid because –
(1) It did not
comply with
section 2
of the
Alienation of Land Act, 68 of 1981
in
that –
(a) The
res
vendita
was
not properly described;
(b) The purchase
price was not certain;
(c) The document
contained an inchoate agreement; and
(2) It was entered
into in contravention of section 67 of the
Ordinance.
[11] Before this
court the appellants persisted in only two of these contentions i.e.
–
(1) That the
res
vendita
was
not properly described; and
(2) That the
agreement was prohibited by section 67 of the Ordinance and is
therefore of no force and effect.
[12] With regard to
the description of the
res
vendita
it
has long been accepted that the principles stated in
Clements
v Simpson
1971
(3) SA 1
(A)
must
be applied. These are set out at 7C-G where the court said –
‘2
Meticulous accuracy in the description of the
res
vendita
is
not required.
Certum
est quod certum reddi potesti.
In
construing an earlier corresponding enactment, Watermeyer, CJ, said –
“
Clearly, if
sec 30 be construed so as to require a written contract of sale to
contain, under pain of nullity, a faultless description
of the
property sold couched in meticulously accurate terms, then such a
construction would merely be an encouragement to a dishonest
purchaser to escape from his bargain on a technical defect in the
description of the property, even in cases where there was no
dispute
at all between the parties. Such construction would be an
encouragement to dishonesty and cause loss of revenue to the
State,
and it should be avoided if possible.” See
Van
Wyk v Rottcher’s Saw Mills (Pty) Ltd
1948
(1) SA 983
(AD)
at
p989.
3
The foregoing does not mean that the Court is to make a contract for
the parties where their intention cannot be ascertained with
a
reasonable degree of certainty. It means that
“inelegance,
clumsy draftsmanship or loose use of language in a commercial
document purporting to be a contract, will not
impair its validity as
long as one can find therein, with reasonable certainty, the terms
necessary to constitute a valid contract”.
Per Colman, J, in
Burroughs
Machines Ltd v Chenile Corporation of SA (Pty) Ltd
1964
(1) SA 669
(W)
at
p670G-H.
4. The test for
compliance with the statute, in regard to the
res
vendita
,
is whether the land sold can be identified on the ground by
reference to the provisions of the contract, without recourse to
evidence from the parties as to their negotiations and
consensus
.’
See
Headermans
(Vryburg) (Pty) Ltd v Ping Bai
1997
(3) SA 1004
(SCA)
at
1008G-1009B:
Vermeulen
v Goose Valley Investments (Pty) Ltd
2001
(3) SA 986
(SCA)
para
6.
[13] When the
parties signed the agreement on 11 September 2003 the respondent had
already erected a 2,3 metre high wall around
the portion of portion
261 she wished to purchase. The wall enclosed, in effect, the western
half of portion 261. In my view the
western half of portion 261 was
clearly identifiable on the ground by means of this wall. I am
further of the view that even without
the wall the
res
vendita
could
be identified on the ground. With reference to the fact that portion
261 is rectangular and the further facts that there
are access roads
running east west along both the northern and southern boundaries the
boundary line dividing the property would
have been drawn parallel
with the boundaries on the north south axis. This line would have
been situated so that portion 261 was
divided into equal halves. See
Party
Investments (Pty) Ltd v Padayachey
1975
(3) SA 891
(N).
Accordingly,
this argument cannot be upheld.
[
14] Section
67 of the Ordinance reads as follows:
’
Prohibition
of certain contracts and options. -
(1) After
an owner of land has taken steps to establish a township on his
land, no person shall, subject to the provisions
of section 70 –
(a) enter
into any contract for the sale, exchange or alienation or
disposal in any other manner of an erf in the township;
(b) grant
an option to purchase or otherwise acquire an erf in the
township,
until
such time as the township is declared an approved township: Provided
that the provisions of this subsection shall not be
construed as
prohibiting any person from purchasing land on which he wishes to
establish a township subject to a condition that
upon the declaration
of the township as an approved township, one or more of the erven
therein will be transferred to the seller.
(2) Any
contract entered into in conflict with the provisions of
subsection (1) shall be of no force and effect.
(3) Any
person who contravenes or fails to comply with subsection (1)
shall be guilty of an offence.
(4) For
the purposes of subsection (1) –
(a) “steps”
includes steps preceding an application in terms of section
69(1) or 96(1);
(b) “any
contract” includes a contract which is subject to any
condition, including a suspensive condition.’
The section
clearly prohibits
,
in the circumstances stipulated, the sale of an erf in a township.
It must be read together with the definitions of ‘erf’
and ‘township’ to determine what is prohibited.
[15] Section 1 of
the Ordinance provides that unless the context otherwise indicates –
‘erf’ means ‘land
in an approved township registered in a deeds registry as an erf,
lot, plot or stand or as
a portion or the remainder of any erf, lot,
plot or stand or land indicated as such on the general plan of an
approved township,
and includes any particular portion of land laid
out as a township which is not intended for a public place, whether
or not such
township has been recognised, approved or established as
such in terms of this Ordinance or any repealed law.’
and
‘
township’ means ‘any
land laid out or divided into or developed as sites for residential,
business or industrial purposes
or similar purposes where such sites
are arranged in such a manner as to be intercepted or connected by or
to abut on street, and
a site or street shall for the purposes of
this definition include a right of way or any site or street which
has not been surveyed
or which is only notional in character.’
[16] ‘Erf’
therefore includes –
(a) land in an
approved township registered in a deeds registry as an erf, lot,
plot or stand;
(b) land in an
ap
proved
township registered in a deeds registry as a portion of an erf,
lot, plot or stand;
(c) land in an
approved township registered in a deeds registry as the remainder
of any erf, lot, plot or stand; and
(d) land indicated
as such (i.e. as an erf, lot, plot or stand or portion or remainder
thereof) on the general plan of an approved
township, and includes
any particular portion of land laid out as a township which is not
intended for a public place, whether
or not such township has been
recognised, approved or established as such in terms of this
Ordinance or any repealed law.
It is clear that
(a) to (c) relate to land already registered in the deeds office and
(d) refers to land indicated on the general
plan of an approved
township. The land referred to in (a), (b) and (c) is actual and the
land referred to in (d) is notional:
i.e. it is an abstraction
indicated or depicted on a general plan. This is consistent with the
last part of the definition of
‘township’ which expressly
provides that ‘a site or street shall for the purposes of this
definition include
a right of way or any site or street which has not
been surveyed or which is only notional in character’. It can
only be
notional in character if it is the abstraction is indicated
or depicted on a general plan.
This is entirely
consistent with the judgment in
Soja
(Pty) Ltd v Tuckers Land & Development Corp (Pty) Ltd
1981
(3) SA 314
(A)
which
dealt with the sale of erven in a township ‘which had been laid
out as a township on a plan which accompanied an application
to the
Administrator for his approval of it as a township.’ (319H)
[17] The question
arises whether the
res
vendita
sold
in terms of the agreement is an erf for the purposes of section 67 of
the Ordinance. Obviously it has not been registered
at the deeds
office and it is an abstraction depicted on the sketch plan prepared
for purposes of the application for subdivision
of portion 261. As
appears from the general plan depicting the township the
res
vendita
incorporates
erven 1 and 2 of the approved township. In my view this was a sale
of the two erven and it is irrelevant that the
description of the
res
vendita
does
not pertinently refer to these erven. The question then arises
whether the agreement was entered into after the owner had
taken
steps to establish a township on portion 261. The court
a
quo
found
that the agreement was concluded with effect from 1 October 2000 and
was therefore not hit by the provisions of section 67
because this
was before steps were taken to establish a township on portion 261.
Whatever was intended by the reference to 1 October
2000 in clause 1
of the agreement (this is by no means clear as it purports to set a
date for the acceptance of the offer) it did
not have the effect of
changing the date on which the agreement was concluded. That date
remained 11 September 2003: i.e. after
the appellants had taken
steps to establish a township on portion 261.
[18] The agreement
was therefore hit by the provisions of section 67 of the Ordinance
and it is of no force and effect - see
Headermans
(Vryburg) (Pty) Ltd v Ping Bai
1997
(3) SA 1004
(SCA)
at
1010B-D. Accordingly the appeal must be upheld.
Order
[
19] I The
appellants’ failure to apply timeously for a date for the
hearing of the appeal is condoned and the appeal is
reinstated;
II The costs order made by the court
on 18 June 2007 is set aside;
III The appeal is
upheld and the declaratory and ancillary orders made by the court
a
quo
on
25 May 2005 are set aside and substituted with the following
order:
‘The application is dismissed
with costs’.
IV
The reserved costs of 20 August 2008 are to be costs in the
appeal;
V The
respondent is ordered to pay the costs of –
(1) The
appellants’ application for condonation and reinstatement
of the appeal which they launched on 15 February
2006;
(2)
The
appellants’ application to set aside the order made on18 June
2007, which they launched on 1 August 2007;
(3) The appeal.
_______________________
B.R. SOUTHWOOD
JUDGE OF THE HIGH COURT
I agree
________________________
J.R. MURPHY
JUDGE OF THE HIGH COURT
I agree
________________________
G.L. GROBLER
ACTING JUDGE OF THE HIGH COURT
CASE NO:
A168/06
HEARD
ON: 25 February 2009
FOR
THE APPELLANT: ADV. N. DAVIS SC
INSTRUCTED
BY: Mr W. Hepple of Bezuidenhouts Hepple Inc.
FOR
THE RESPONDENT: ADV. P.J. VERMEULEN
INSTRUCTED
BY: Mr D.C. Weber of Weber Attorneys
DATE
OF JUDGMENT: 1 April 2009