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[2009] ZAGPPHC 346
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Bondev Developments (Pty) Ltd v Plenty Properties 60 (Pty) Ltd and Others (43602/08) [2009] ZAGPPHC 346 (2 December 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT. PRETORIA)
DATE:
2 DECEMBER 2009
CASE
NO. 43602/08
In
the matter between
BONDEV
DEVELOPMENTS (PTY) LTD
APPLICANT
and
PLENTY
PROPERTIES 60 (PTY) LTD
1st
RESPONDENT
THE
REGISTRAR OF DEEDS, PRETORIA
2nd
RESPONDENT
ABSA
BANK LTD
3rd
RESPONDENT
JUDGMENT
FABRICIUS
AJ
1.
In this application the applicant seeks an order that first
respondent be ordered to re-transfer a certain property to it at
first respondent’s cost, against payment by applicant to first
respondent in the amount of R290 000,00, which amount was
the
purchase price of the property sold by applicant to the first
purchaser, one Viljoen. First respondent thereafter purchased
the
property from Viljoen and registration of transfer took place on 14
November 2008.
2.
It
is clear that applicant is a developer of various townships,
including the township known as the Midstream Estate.
3.
In
terms of paragraph B of the conditions on which the property was
transferred from the initial purchaser (Viljoen) to the first
respondent, the following condition was imposed in respect of the
property and it was agreed to be enforceable by the applicant:
"Onderhewig
aan die volgende voor.vaarde opgeld en afdwingbaar deur BONDEV
Ontv/ikkelings (Edms) Bpk .... naamlik: die transporlnemer.
sy
opvolgers in titel of regsverkrygendes, is verplig om 'n woonhuis op
die eiendom op te rig binne twaalf (12) maande vanaf 14
November 2005
by gebreke v/aarvan die transportgewergeregtig sal wees maarnie
verplig nie, om te eis dat die eiendom aan die transportgewer
op
koste van die iransportnemer getransporteer word teen betaling van
die oorspronklike koopprys. rentevry. Die transportnemer
sal nie die
einedom binne gemelde tydperk mag verkoop of oordra sonder
skriftelike toestemming van die transportgev/er nie."
4.
Prior to the transfer of the property from the initial purchaser to
the first respondent:
4.1
applicant
consented to such transfer;
4.2
the
relevant condition referred to was "carried forward* from the
title deed of the initial purchaser to the title deed of
the first
respondent. It is common cause that first respondent failed to erect
a dwelling on the property.
5.
On behalf of applicant is was argued that the wording of the relevant
condition made it clear that the applicant could enforce
the
condition as against first respondent. No notice to perform in this
regard needed to be given according to applicant, and having
regard
to the decision of
Lodhi
2 Properties Investments
CC
v Bondev Developments (Ptv) Ltd
2007(6)
SA 87 at 90 G - H.
6.
In the context of an alleged waiver of applicant's right in this
particular context, it was argued on behalf of first respondent
that
when it took transfer of the property on 14 November 2006. the
relevant one year time period had already expired, and applicant
subsequently chose not to enforce the condition in the title deed
against the initial purchaser, nor the first respondent. It was
also
argued that applicant only called upon first respondent to procure
the erection of the dwelling house on 27 August 2007. In
any event it
was argued that first respondent sold the property to a bona fide
third
party, one Brits, who did not take transfer of the property. In the
replying affidavit applicant annexed a number of new annexures
relying amongst others on the provisions of section 65 of the Deeds
Registries Act. and an annexure 'RBR6"
which
is a consent (“toestemming") given by applicant when
agreeing that Viljoen could sell to first respondent that
'Voorwaarde
B en titel is nog nie aan voldoen nie en moetstaan as 'n voorwaarde.
"
This consent is signed 27 September 2006. It is clear that no date
for the expected performance in terms of this condition
is fixed, and
such performance could obviously not occur within one year after 14
November 2005.
7.
During
argument it was contended on behalf of first respondent that as a
result such clause could not be complied with as no date
for
performance had been fixed, and that the strict compliance with that
condition had therefore become impossible on its own wording.
On
behalf of the applicant it was contended that Viljoen would have been
obliged to commence building on the day he took transfer,
but
applicant's counsel was unable to tell me when such dwelling had to
be completed by. and when applicant would then have been
entitled to
rely on the relevant clause The argument in this context becomes even
more exotic and speculative if one has regard
to the position of
subsequent purchasers
8.
The
relevant "condition* is more in the nature of a so-called term
of the contract which in its proper context imposes a contractual
obligation on a part to act in a particular manner.
See
Design & Planning Service v Kruger
1974(1)
SA 689 (T)
a
t
695 and The Law of Contract in South Africa, RH Christie, 5
,h
Ed
at 134.
It
is interesting that the applicant by way of an annexure dated 18
October 2007 said the following in regard to the time period
which is
in itself contained in the relevant clause:
‘
We
have an obligation to other erf-owners to see to it that we keep on
track with the development projects in toto. If you do not
submit the
said plans by the 20
t
"
of November 2007 and/or start to build very soon, we will proceed
with legal action to re-transfer erf 1423, as stipulated
in clause 11
of the original offer to purchase transaction between yourself and
Bondev."
In
applicant's annexure dated 25 February 2008 first applicant was
reminded that in terms of condition C of the relevant title deed,
the
transferee was liable to erect a dwelling on the property within 18
months from 14 November 2005. It was pointed out (note
on 25 February
2008) that
“
in
terms of title condition C you had to commence with building and
erection of a dwelling on the property within 18 months from
the 14
of
November 2005....
The
absurdity of this contention ought to be obvious, and need it be
asked how first respondent was obliged to comply with this
specific
term?
9.
In the premises I am of the view that respondents' contention in this
particular context is sound : the term was not and could
not be
complied with by either the first purchaser or the first respondent.
On its literal interpretation it cannot be enforced
and was not
sought to be enforced. It could of course have been enforced without
demand within the relevant one year period, but
it was not In my view
applicant cannot now rely on either the one year or the 18 months
period as contended for, where it itself
was unable to put a sound
proposition to me relating to within which period a dwelling now had
to be erected within the parameters
of trie said clause.
In
the premises applicant's application is dismissed with costs.
SIGNED
AT PRETORIA ON THIS THE 1ST DAY OF DECEMBER 2009
FABRICIUS
AJ