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[1991] ZASCA 122
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Trustees for the Time Being of the Alan Doggett Family Trust v Karakondis and Others (686/89) [1991] ZASCA 122; [1992] 1 All SA 242 (A) (26 September 1991)
Case No 686/89
TRUSTEES FOR THE TIME BEING OF
THE ALAN DOGGETT FAMILY
TRUST
Appellants
and
MAUREEN KARAKONDIS
1st Respondent
ADMINISTRATOR OF THE CAPE
2nd Respondent
MUNICIPALITY OF THE CITY
OF CAPE TOWN
3rd Respondent
REGISTRAR OF DEEDS
,
CAPE TOWN
4th Respondent
JOUBERT
, J A.
1 .
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
TRUSTEES FOR THE TIME BEING OF
THE ALAN DOGGETT FAMILY TRUST
Appellants
and
MAUREEN KARAKONDIS
1st
Respondent
ADMINISTRATOR OF THE CAPE
2nd
Respondent
MUNICIPALITY OF THE CITY
OF CAPE TOWN
3rd
Respondent
REGISTRAR OF DEEDS
,
CAPE TOWN
4th Respondent
Coram
: JOUBERT, E M GROSSKOPF, VIVIER, EKSTEEN J J A
et
NICHOLAS A J A
Heard
: 16 August 1991
Delivered
: 26 September 1991
/2...
2.
JUDGMENT
JOUBERT, J A:
This is an appeal against a judgment of KING J in the Cape of Good Hope
Provincial Division dismissing an application against the
First Respondent. With
leave of the Court
a quo
the appellants now appeal to this Court.
For purposes of the appeal it is necessary to outline in brief the relevant
facts of the case as follows:
1. On 4 February 1981 the appellants by deed of transfer T 5207/1981 became the
registered owner of erf 1616, situated in the residential
area of Camps Bay
Extension No 2 in the Municipality of Cape Town. The street address of erf 1616
is 22 Upper Francolin Road,
amps Bay. The
dwelling-house on erf 1616 which is situated on a mountain slope commanded
an
/3...
3.
unobstructed view across lower lying properties and their buildings, including
erf 1642 (then vacant land), towards the bay and the
sea.
2. On 2 September 1981 a certain Schubel, the owner
of erf 1642, entered into
a deed of sale with the
First Respondent in terms of which a portion
of
the erf was sold to the latter. The sale was
expressly made "subject to
sub-division in process
to be granted".
3. Application for the subdivision of erf 1642 into
two portions was made on
26 November 1981 by land
surveyors De Villiers and Reid on behalf of
Schubel
to the Provincial Administration of the Cape.
4. The appellants in their letter, dated 13 April
1982, to the Provincial
Secretary objected to the
proposed subdivision of erf 1642 on the
ground
that the unobstructed mountain and sea view
from
/4...
4
erf 1616 would be impeded should dwelling-houses be built on the two
subdivided portions of erf 1642. 5. The application for the proposed
subdivision
of
erf 1642 was approved by the Second Respondent (the "Administrator") on 30
November 1982 in terms of sec. 9 of Ordinance 33 of 1934
(the "Ordinance")
subject to certain specified conditions. These conditions fell into two
categories. The first category consisted
of a condition of subdivision which
provided that "
development on the subdivisional portions be restricted to one
storey above the street level of Upper Francolin Road
." (My underlining). I
shall henceforth refer to this condition as "the building restriction". It is of
paramount importance to note
that the Administrator's approval did not require
registration of this building restriction to be effected in the title deeds
of
/5...
5.
the two subdivided portions of erf 1642. The
second category on the other hand comprised certain specified conditions which
were to
be inserted as conditions of title in the title deeds of the two
subdivided portions of erf 1642 "unless they or similar conditions
are already
registered against the parent property(ies)". 6. When Schubel by deed of
transfer T 35618/1983 on 31 August 1983 transferred
erf 2428, a portion of erf
1642, to the First Respondent there was, in accordance with the Administrator's
approval, no mention therein
of the building restriction limiting development on
that erf to one storey above the street level of Upper Francolin Road. Deed of
transfer T 35618/1983 does, however, contain a number of conditions of title,
viz. conditions taken over from earlier deeds of transfer
(Conditions
/6...
6.
A-D), certain conditions of establishment of the Township of Camps Bay Extension
No 2 imposed by the Administrator (Condition E)
and conditions imposed by the
Township Owners (Conditions F and G).
7. It was common cause that the First Respondent was
unaware of the existence
of the aforementioned
unregistered building restriction when she
obtained
transfer of erf 2428 or at any material time.
This aforementioned unregistered building restriction was non-existent when she
bought an undivided portion of erf 1642 from Schubel
on 2 September 1981.
8. On 24 June 1988 the attorneys of the appellants
sent a telegram to the
First Respondent claiming
that building operations on erf 2428 were in
breach
of the building restriction which restricted
development on that
erf to one storey above the
street level of Upper Francolin Road. She
was
/7...
7.
also threatened with an urgent application for an interdict to halt such
operations if she proceeded with them. No response was received
from her and the
building operations continued. 9. On 30 June 1988 the Appellants launched an
urgent application against the First
Respondent
for a temporary interdict
restraining her from
continuing with building operations on erf
2428
in breach of the building
restriction. She resisted
the application which was to be heard on 6 July
1988. The next day SELIKOWITZ J made an order
by consent according to which the Appellants did
not proceed with their application for interim relief
but were permitted to file supplementary affidavits
within 14 days. The First Respondent furnished
an undertaking to the Appellants "that to the extent
that the degree of completion of the building
may
/8...
8.
be an issue affecting the Court's discretion to order the demolition of the
building, such issue will be determined on the supposition
that all building
work effected after 6 July 1988 be disregarded". The guestion of costs stood
over for later determination.
10. The Appellants filed an amended Notice of Motion,
dated 12 August 1988,
as well as a supplementary
affidavit. They sought as final relief an
order
declaring the development on erf 2428 to be restricted
in accordance
with the building restriction and
compelling First Respondent to demolish
that part
of the building on the erf which was in breach of the building restriction. The
other relief sought is not relevant for purposes
of the appeal.
11. By an application dated 5 August 1988 the Appellants
sought the joinder
of the Administrator,
the
/9...
9.
Municipality of Cape Town and the Registrar of Deeds, Cape Town, as 2nd, 3rd
and 4th Respondents respectively, against whom costs
were claimed jointly and
severally should they oppose the application. The application for joinder was
granted. 12. The Appellants
in a supplementary affidayit, dated 25 October 1988,
raised the complaint that title Condition E 5(d) of deed of transfer T
35618/1983
relating to erf 2428 limited the erection of the main building to
7.87 m from the street boundary line whereas the building was in
breach thereof
built 4.5 m from the street boundary line. The amended Notice of Motion was,
however, not amended to provide for this
building line complaint.
The first question that falls to be decided is whether or not the building
restriction is binding on the First Respondent. The Court
a quo
held that
it was not
/10...
10.
binding on her.
The building restriction embodies all the elements of the
common law
servitus altius non tollendi
(D 8.2.12, Voet 8.2.8, Caepolla
(ob. 1477),
Tractatus de Servitutibus Urbanorum Praediorum
, cap. 26 &
27) in favour of properties situated on a higher level than erf 1642 on the
mountain slope in question. In granting
Schubel's application for the
subdivision of erf 1642 the Administrator made it subject to the two categories
of conditions, mentioned
supra
. He imposed the conditions in pursuance of
the powers conferred on him by secs. 9(8), 14 A (1) and 18(1), (3) of the
Ordinance. Sec
3(1) of the Provincial Powers Extension Act 10 of 1944 lays down
the method of registration of such conditions, viz. that "that condition
may
either be inserted in the relevant deed of transfer or be registered by means of
a notarial deed, and the officer in charge of
the deeds registry concerned shall
endorse on the title deed of any
/11...
11 .
land retained by the transferor every such condition which relates to the
land so retained."
The Administrator must obviously have been aware of the
fact that the conditions of subdivision imposed by him were either to be
registered
in the title deeds of subdivided portions or not. This is apparent
from the distinction which he made between the two categories
of conditions in
the present matter. In respect of the first category which comprised the
building restriction he prohibited registration
thereof because he obviously
intended it to be a non-servitutal condition which was not to run with the two
subdivided portions of
erf 1642 as servient tenements. On the other hand he
specifically insisted on the insertion of the second category of conditions
as
conditions of title in the title deeds of the two subdivisions of erf 1642
(unless they or similar conditions were already registered
in the title deed of
erf 1642) in order to run as registered servitutal
/12...
12.
conditions with the two subdivided portions of erf 1642 as servient
tenements. I may mention that the conditions of the second category
were in fact
not inserted in the deed of transfer T 35618/1983 of erf 2428 because they had
already been inserted in the title deed
of erf 1642 as appears from Conditions
of Title E nrs 3 and 4 in the deed of transfer of erf 2428. Furthermore, para 2
of the Third
Annexure to the Administrator's approval of the subdivision of erf
1642 states the following:
"The owner shall disclose the existence of
the
aforesaid condition
in any deed of sale in respect of these portions." (My
underlining). It appears from the context of the Third Annexure that the words
"the aforesaid condition" refer to para 1 thereof which contains a condition
that "a building of a valuation of not less than R7
000 shall be erected on each
vacant deducted portion (including the first deducted portion) within a
period
/13...
13.
of 2 (two) years from the date of Registration in the Deeds Office, of such
deducted portion. (Section 14 A of Ordinance No 33 of
1936)". It is therefore
abundantly clear from the context of the Third Annexure that para. 2 thereof is
inapplicable to the building
restriction. The inference is therefore inescapable
that the Administrator did not intend the building condition to be binding on
any person other than Schubel as applicant for the subdivision of erf 1642. In
my judgment the building restriction was never intended
by the Administrator to
be an unregistered servitude : it was a mere non-servitutal condition which was
binding on Schubel.
It is convenient at this stage to consider the main
classes of conditions which may appertain to townships and erven, viz.:
1.
Conditions of establishment
. They are usually prescribed by an
Administrator in a schedule to his proclamation proclaiming the township an
approved
/14...
14.
township. Upon proclamation of the township they acquire statutory force,
imposing obligations upon the township owner which he must
perform. See
Peri-Urban Areas Health Board v Breet N 0 and Another
, 1958(3) S A 783
(T) at p 787 A-B,
Malan and Another v Ardconnel Investments (Pty) Ltd
,
1988(2) SA 12 (A) at p 39 C-D. 2.
Conditions of title
. They are also set
out by
an Administrator in a schedule to his proclamation proclaiming the township an
approved township. When the township owner transfers
an erf in the approved
township to a purchaser he is obliged to insert in its deed of transfer those
conditions of title which relate
to that erf. Upon registration of the deed of
transfer they become registered servitudes. See
Ex Parte Gold
, 1956(2) SA
642 (T) at p 647 B-C,
Malan
's case (
supra
) at p
39
/15...
15.
D-E. 3.
Conditions of subdivision
. They comprise those conditions of
title which an Administrator upon subdivision of an erf in an approved township
requires to be
inserted in the title deeds of the subdivided portions of the
erf. Upon registration of the title deeds they accordingly become conditions
of
title and as such registered servitudes.
The position in the Cape of Good
Hope Province requires special consideration because its procedure regarding the
establishment of
an approved township is materially different from the procedure
in the other Provinces. In broad outlines the essential steps which
have to be
táken before the formal notification by the Administrator of the approved
township are the following. After the
Administrator approves of the application
for the establishment of a township the applicant has to submit to the
Surveyor-General
a general plan of the
/16...
16.
proposed township (sec 19(1)). After approval of the general plan and diagram
by the Surveyor-General the applicant must lodge them
with the Registrar of
Deeds with a copy of the conditions on which the Administrator granted his
application as well as the title
deed by which he holds the land in question
(sec 20(1)). The Registrar of Deeds thereupon
registers
the township and
informs the Administrator accordingly (sec 20(6)(a)). The Administrator in terms
of sec 20(6)(b) then causes
a notification of the approved township
to be
published in the
Provincial Gazette
. See
Donges and Van Winsen,
Municipal Law, 2nd ed., p 611-612. It will be noticed that in the Cape of Good
Hope Province, unlike the other
Provinces, there is no proclamation by the
Administrator with schedules thereto containing the Conditions of Establishment
and the
Conditions of Title. Upon registration of the deed of transfer of an erf
the conditions of title, in so far as applicable to the
particular erf,
/17...
17.
are inserted in the title deed. They become registered servitudes. Likewise
upon the subdivision of an erf the conditions of subdivision
inserted in its
title deed become conditions of title and as such registered servitudes.
In
this Court Mr
Rosenthal
, on behalf of the Appellants, contended that the
Administrator imposed the building restriction by exercising an administrative
act
which had the force of law and was binding on the First Respondent despite
the fact that the building restriction was not registered
in the title deed of
erf 2428 and that she had no knowledge of its existence when she bought and
obtained transfer of erf 2428. He
sought to rely on the decisions in
Duze v
Eastern Cape Administration Board and Another
, 1981(1) S A 827 (A) at p 841
C-E and
Thompson v Port Elizabeth City Council
, 1989(4) SA 765 (A). These
decisions are, however, distinguishable and do not support his contention. In
Duze
's case this Court held that the Eastern Cape Administration
/18...
18.
Board was empowered according to the relevant statutory enabling provisions
to determine and charge rentals administratively which
were payable in respect
of housing in Black residential areas. It was held that the Eastern Cape
Administration Board acted
intra vires
the statutory enabling provisions
in charging the appellant the monthly rentals for the dwelling (p 841 A-H). It
could even with
the approval of the Minister of Co-operation and Development
administratively charge for services provided outside a Black residential
area
(p 842 A-D). The manner in which the determination and charging of the rentals
was performed administratively was not in issue
and accordingly not
canvassed.
In
Thompson
's case the Administrator, in granting an application for
the establishment of a township situated within the Municipality and Division
of
Port Elizabeth, in terms of sec 14 A(1) imposed in the Conditions of
Establishment a condition in respect of certain erven (including
/19...
19.
the erf subsequently transferred to Thompson) which required buildings to be
erected on them of a certain value within a particular
period of time. Thompson
did not have actual knowledge of the particular condition when he bought his erf
or at the time of the registration
of the erf in his name. In the magistrate's
court the Port Elizabeth City Council in terms of sec 14 A(2) sued Thompson for
the payment
of a certain sum of money as a penalty for his non-compliance with
the particular condition of establishment. The magistrate held
Thompson liable
for payment of the penalty despite his lack of actual knowledge of the
particular conditions when he bought his erf
or at the time when it was
transferred in his name. A Full Bench of the Eastern Cape Division confirmed the
magistrate's decision.
This Court on appeal confirmed the decision of the Court
a quo
. The
ratio decidendi
of this Court's decision was that the
particular condition had the force of law (p 770 D-E) and that the owner's
/20...
20.
liability under sec 14 A(2) was not dependent upon his knowledge of the
particular condition breached by him. Since the purpose of
the conditions of
establishment was to ensure orderly urban development the provincial legislature
could not have intended that liability
for the penalty was dependent upon the
owner's knowledge of the particular condition (p 770 G-
I).
On the assumption that the imposition of the building restriction by the
Administrator as a condition of subdivision was an administrative
act intended
to have the force of law but which was not required by the Administrator to be
registered, then the imposition thereof
had to be brought to the knowledge of
the First Respondent in order to render it binding on her. See
Byers v Chinn
and Another
,
1928 A D 322
at p 329-331. To hold otherwise would seriously
imperil the position of
bona fide
purchasers and owners of land who buy
and own land by virtue of a clean title deed
/21...
21 .
without any reference to the existence of an unregistered restrictive
condition which would diminish the ownership of the land. I
accordingly find
that there is no substance in the contention of Mr
Rosenthal
.
He also tried to avail himself of the provisions of sec 61
bis
(1)
which confer on a local authority the right to have any contravention of a
condition of subdivision remedied. Sec 61
bis
(1) does not assist him and
takes the matter no further.
In view of the aforegoing the answer to the first guestion in my judgment is
that the building restriction is not binding on the First
Respondent. It is
acordingly unnecessary to consider the defences raised by her against the
application of the Appellants.
The next question to be decided is whether or not the First Respondent
breached Condition of Title E 5(d) of her deed of title of
erf 2428. The
relevant provisions
/22...
22.
of this Condition of Title read as follows:
"E. SUBJECT FURTHER to the following special conditions imposed by the
Administrator of the Province of the Cape of Good Hope in terms
of Ordinance No
33 of 1934 when approving of the establishment of the Township of Camps Bay
Extension No 2 and contained in Deed
of Transfer No T 2345/1974:-1
----------
2
----------
3
----------
4
----------
5
This erf shall be
subject to the following further conditions,
provided that where
,
in
the opinion of the Administrator after
consultation
with the Townships Board and the
Local Authority it is expedient that the restriction in any such conditions
should at any time be
suspended or relaxed
,
he may authorise the
necessary suspension or relaxation
,
/23...
23.
subject to compliance with such conditions
as he may impose:-
(c)
(d) no building or structure, or any portion thereof, except boundary walls
and fences shall be erected nearer than 7,87 metres to
the street line which
forms a boundary of this erf - - - -
(e) ."
(My underlining). I shall henceforth refer to this condition as the
"building
line condition". It was common cause that the building
which the First
Respondent was erecting on erf 2428 was situated
4,50 m from the street line.
The First Respondent, however,
relied on a general relaxation of the building
line condition
by the Administrator. It appeared from the official
documents
included in the record that the Administrator on 22 September
1964 granted a general relaxation of the 25 ft (7,87 m) building
line condition required in terms of the title conditions
/24...
24.
of erven in Camps Bay Extension No 1. On 11 April 1974 the Director of Local
Government approved the Third Respondent's recommendation
that a general
relaxation of the 25 ft (7,87m) building line distance to 4,5 m should apply to
erven in Camps Bay Extensions 2, 3,
4 and 5. On 14 April 1974 the Administrator
approved of the recommendation as requested subject to standard conditions. His
authority
to have relaxed the building line was
expressly reserved
in
Condition of Title E 5(d) with reference to erf 1642 from which the said
condition was derived upon the subsequent subdivision
of erf 1642 by
incorporating it in deed of transfer T 35618/83 of erf 2428. It follows that the
Administrator acted within his authority
to
relax
the extent of the
building line from 7,87 m to 4,5 m as he did on 11 April 1974 with regard to all
erven in Camps Bay Extension No
2 which included erf 1642 (the parent erf of
subdivision portion 2428). Mr
Rosenthal
contended that the Administrator
could only have
/25...
25.
altered
the building line condition by exercising his powers in terms
of sec 2(1) of the Removal of Restrictions Act 84 of 1967 and by observing
the
procedure prescribed by the latter Act whereas he had failed to do so. In my
judgment this contention is devoid of substance,
since the Administrator
relaxed
the operation of the building line condition without
alteration
of the condition itself. It was also raised in the Court
a
quo
and correctly rejected by it. The First Respondent accordingly, in my
judgment, did not breach the building line condition as relaxed
by the
Administrator.
In the result the appeal is dismissed with costs.
C P JOUBERT J A.
E M GROSSKOPF JA
VIVIER JA
EKSTEEN JA Concur.
NICHOLAS AJA