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2024
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[2024] ZANCHC 19
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Van Den Hever and Another v South African National Road Agency Limited and Another (19/2023) [2024] ZANCHC 19 (8 March 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA,
NORTHERN
CAPE DIVISION, KIMBERLEY
Not
Reportable
Case
No: 19/2023
In
the matter between:
CHARLES
PIETER VAN DEN HEVER
N.O. FIRST
APPLICANT
PIETER
MARTHINUS STEYN STRAUSS N.O. SECOND
APPLICANT
And
SOUTH
AFRICAN NATIONAL ROAD AGENCY LIMITED FIRST
RESPONDENT
THE
REGISTRAR OF DEEDS, KIMBERLEY SECOND
RESPONDENT
Neutral citation:
Van
Der Hever N.O and Another v South African National Road Agency and
Another
(Case no 19/2023) (8 March 2024)
Heard:
10
November 2023
Delivered:
8 March
2024
JUDGMENT
Phatshoane
AJP
[1] The
first and second applicants, Mr CP Van den Hever N.O and Mr PMS
Strauss N.O, in their capacities
as the trustees of the Hever Trust
(the trust), approached this Court on 10 January 2023 for an
order that the first respondent,
the South African National Road
Agency Limited (SANRAL), cause the transfer of a property described
as Erf 2[…] (a portion
of Erf 7[…]), C[…],
Northern Cape Province, held by the trust in terms of Deed of
Transfer no: T[…](the property)
into SANRAL’s name and
that the purchase price together with interest be paid to the
trustees. That in the event that SANRAL
was unable to take transfer,
it be confirmed that the agreement is forthwith cancelled and SANRAL
is evicted from the property.
Further ancillary relief pertaining to
costs of the application was also sought.
[2] The
transfer of the property into SANRAL’s name has, in the
interim, been finalised. Therefore,
the main relief sought was
rendered moot. What remains for consideration is the question of
costs of the application.
[3] On
14 February 2017 the trustees and SANRAL concluded a deed of sale in
terms of which the trustees sold
to SANRAL the property. The
agreement was further to the effect that SANRAL would secure the
purchase price of R407 167.04 within
60 days from the date of sale
and would appoint conveyancers to effect the transfer of the property
to itself. It was further agreed
that in the event SANRAL took
possession and occupation of the property, prior to the date of
transfer of the property, the trustees
would be entitled to interest
on the purchase price.
[4] It
was contended for the trustees that they had complied with all their
contractual obligations. SANRAL
took possession and occupation of the
property shortly after the agreement had been concluded. It also
appointed Malebye Motaung
Mthembu Attorneys to attend to the transfer
of the property into its name. SANRAL also paid the purchase price
into the trust account
of the said attorneys who were mandated to pay
over these funds together with the interest to the trustees upon the
registration
of the property.
[5] On
29 March 2018, a year later after the agreement had been entered
into, SANRAL’s attorneys informed
the trustees’ attorneys
that the registrar of deeds, Kimberley, the second respondent,
rejected the transfer of the property
on the basis that certain
signed certificates from Umsobomvu Municipality had to be obtained to
enable the attorneys to relodge
the transfer documents in the deeds’
office.
[6] What
emerges from the founding papers is that more than two years later,
after the agreement had been
concluded, the trustees’ attorneys
directed an e-mail to SANRAL attorneys on 17 May 2019, which reads in
part
“
Kindly advise us
whether you will be in a position to lodge [the transfer documents]
with the Deeds office Kimberley within fourteen
days as from the date
of this letter. If not, we will obtain final instructions from our
client to bring an application to compel
SANRAL for the registration
and payment. Alternatively, we suggest that SANRAL pay the full
amount plus interest to date after
which they can on their leisure
decide when they want to do the relevant registration.”
The response from
SANRAL’s attorneys of the same date was to the effect that land
surveyor be afforded:
“
time and space to
work through the necessary process. Once we receive the correctly
endorsed subdivision diagram from the land surveyor
writer hereof
will apply for a fresh rates clearance certificate at the local
authority and once we are in possession of same,
writer will re-lodge
the transfer documents in the deeds office”.
[7] Approximately
four years later, on 10 January 2023, following the above sufficient
indulgences to cause
the transfer, the trustees brought the present
application. This was almost six years later after they had concluded
the deed of
sale with SANRAL. It was contended for the trustees that
a reasonable time had expired in terms of which SANRAL was afforded
the
opportunity to comply with the deed’s office requirements
and to cause transfer of the property. As far back as 17 May
2019, it was argued, SANRAL had been warned to comply failing which
the application would be launched.
[8] The
trustees further argued that throughout SANRAL had the use and
enjoyment of property whereas they
had been deprived of immediate
payment of the purchase price which remained inaccessible in SANRAL’s
attorneys trust account.
The trustees were of the view that the
transfer could not be wantonly delayed. They therefore urged for an
order in terms of which
SANRAL would be compelled to comply with its
contractual undertakings within 30 days from the date of the order
failing which that
the deed be cancelled and SANRAL be evicted from
the property.
[9] SANRAL
filed a notice of intention to oppose the application on 21 February
2023 but did not file an
opposing affidavit. It contends that it did
not cause any delay in the transfer of the property and acted bona
fide in respect
of the transaction. It further argued that no case
was made out that it ought to have taken steps to expedite the
registration
process. It was further argued for it that a reading of
the founding papers suggested that the delay ought to be attributed
to
the registrar of deeds and local authority. Insofar as the parties
had agreed that the purchase price would bear interest, it was
argued, the trustees could not contend that they were worse off
compared to SANRAL which had the use and enjoyment of the property.
It was further argued that the trustees should never have approached
the Court as there had been no basis for the relief and its
concomitant costs against SANRAL. SANRAL, so it was argued, tendered
on 17 July 2023 that each party pay its own costs to avoid
further
unnecessary legal fees and costs.
[10] In
my view, the time-line is important to determine where liability for
costs lie. As already stated,
the deed of sale was concluded on 14
February 2017. Shortly thereafter SANRAL took occupation of the
property. Apparent from a
few contemporaneous written exchanges
between the parties there was some attempt to register the transfer
of the property around
29 March 2018, almost a year later from the
date of sale, which was rejected by the registrar possibly due to
lack of proper endorsement
of the subdivision diagram. Following
this, an unexplained period of four years lapsed before the
application to compel was lodged.
Quite remarkably, six months
following the launching of the application, the transfer was passed
and the purchase price paid.
[11] For
reasons I am wholly unable to comprehend SANRAL did not file an
affidavit, following its notice
of intention to oppose, to explain
the delay in the registration of the transfer or why it ought not to
be held liable for the
costs of the application. The trust may not
have been financially prejudiced, as SANRAL sought to argue, but the
inordinate period
of six years which lapsed before the transfer could
finally be registered clearly inconvenienced the trust. Absent any
explanation
for the delay this
smacks of
remissness
. In my view, the trustees were entitled to approach
the Court for relief. Had SANRAL acted conscientiously and promptly
the application
could have been avoided. It follows therefore that it
must bear the costs. In the result:
Order:
1.
The
first respondent, the South African National Road Agency Limited,
is to pay the costs of the application on party
and party scale.
MV PHATSHOANE AJP
Appearances:
For the
applicant:
Adv SJ Reinders
Instructed
by:
Engelsman Magabane Inc, Kimberley.
For the
respondents:
Adv JL Olivier
Instructed
by:
Haarhoffs Attorneys, Kimberley.