IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL DIVISION, PIETERMARITZBURG
APPEAL CASE NO: AR358/ 2023
CASE NO: 9022/2007
In the matter between:
YUSUF MOHAMMED ESSACK N.O. APPELLANT
(Plaintiff a quo)
and
VINO ADAMS THANGAVELU RESPONDENT
(Defendant a quo)
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ORDER
___________________________________________________________________
On appeal from: KwaZulu -Natal Division of the High Court, Durban (Msiwa AJ
sitting as court of first instance):
The appeal is dismissed with costs on scale A.
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JUDGMENT
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Mathenjwa J ( Poyo Dlwati JP and Bramdhew AJ concurring):
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[1] This is an appeal against the judgment of Msiwa AJ (the court a quo) in which
it dismissed an application by the appellant to declare parking bay 20 , being part of
the common property of the sectional title scheme known as Willem Court , located
near Victoria Emba nkment, Durban , KwaZulu -Natal , as the property of the
appellant .1 The appellant seeks that the decision of the court a quo handed down on
27 March 2023 be set aside and replaced with an order declaring that he is the
owner of the right of exclusive use of parking bay 20.
[2] The facts can be summari sed as follows: Initially , Mr Cornelius van Rooyen
Botha (Mr Botha) owned units 77 and 78 in Willem Court . On 11 May 1994 , Mr Botha
entered into an agreement with the Willem Court Body Corporate (the body
corporate) for the purchase of the right of exclusive use of parking bays 19 and 20.
On 2 7 October 1994 , Mr Botha sold unit 78 to Mr Westbrook , together with the right
of exclusive use of parking bay 20. However, a ccording to the deed of transfer dated
17 February 1995 , only unit 78 was sold and transferred from Mr Botha to Mr
Westbrook, parking bay 20 was not mentioned at all in the deed of transfer nor was
there any notarial deed that sought to transfer ownership . At the time the right o f
exclusive use of the parking bay was sold to Mr Westbrook , the exclusive use areas
had not been delineated in Willem Court and the right to the exclusive use of parking
bays 19 and 20 had not been registered in Mr Botha’s name. On 25 April 1996 , the
body corporate ceded the right of exclusive use of parking bays 19 and 20 to Mr
Botha by means of a notarial deed registered with the Registrar of Deeds.
[3] On 4 July 1997 , Mr Westbrook sold unit 78 together with the right of exclusive
use of parking bay 20 to the appellant . On 22 August 1997 , Mr Westbrook signed a
power of attorney for the transfer of unit 78 to the appellant, however , parking bay 20
was not mentioned at all in the power of attorney . Subsequently, when unit 78 was
transferred by a notarial deed of transfer to the appellant , the right of exclusive use
of parking bay 20 was not ceded to him. Despite this , the appellant paid levies for it
to the body corporate.
[4] On 15 June 2002 , the respondent signed an offer to purchase unit 77 from Mr
Botha, but the right of exclusive use of parking bay 20 was not included in that offer.
1 See Essack NO v Thangavelu [2023] ZAKZDHC 26.
3
On 25 July 2002 , Mr Botha signed a power of attorney authorising the transfer of unit
77 and the cession of the right of exclusive use of parking bays 19 and 20 to the
respondent. On 31 July 2002 , unit 77 was transferred and the right of exclusive use
of parking bays 19 and 20 was ceded to the respondent by means of a notarial deed
registered with the Registrar of Deeds.
Issues in the court a quo
[5] The appellant ’s case in the court a quo, as pleaded in his particulars of claim ,
was that when effecting the transfer of unit 78 into his name , an error occurred in the
offices of the conveyancing attorneys and the deeds office , which resulted in the
right of exclusive use of parking bay 20 not being ceded to him . According to the
appellant , the right of exclusive use of parking bay 20 was further registered in the
name of the respondent due to an error in the conveyancing attorneys ’ offices and
the deeds office . The respondent disputed that an error occurred when the right of
exclusive use of parking bay 20 was ceded to him, as the parking bay was sold and
ceded to him by its lawful owner.
[6] The court a quo found that the appellant had failed to discharge the onus that
rested upon him to prove that an error occurred in the offices of the conveyancing
attorneys and the Registrar of Deeds that resulted in the right of exclusive use of
parking bay 20 not being ceded to him. The court a quo found that the appellant had
failed to prove that he had acquired the right of exclusive use of the parking bay and
that the parking bay was erroneously ceded to the respondent.
Issues before this court
[7] It was submitted on behalf of the appellant that the court a quo had incorrectly
interpreted the Sectional Titles Act 95 of 1986 (STA) , as it pertained to the transfer of
the right of exclusive use areas . The appellant conten ded that an error presented
itself when the body corporate purported to cede the right of exclusive use of parking
bay 20 to Mr Botha in 1996 , as Mr Botha had already passed ownership of the
parking bay to Mr Westbrook in 1994. According to the appellant’s counsel , Herald
Investments Share Block (Pty) Ltd and others v Meer and others , Meer v Body
4
Corporate of Belmont Arcade and another2 support s her submission that s 27 of the
STA does not make it peremptory for every exclusive use area within a sectional title
scheme to be formally registered or transferred by way of a notarial deed of cession.
The appellant contend ed that the STA does not abolish existing rights. Th erefore,
the appellant wishe d to formally register his ownership of parking bay 20 with the
Registrar of Deeds whilst it holds a contractual right of ownership to it. The
respondent disputed that the court a quo erred in its finding that the appellant had
not discharged the onus resting upon him , as the appellant had not proved that it
was an error that occurred in the offices of the conveyancing attorneys and Registrar
of Deeds that prevented the cession of the parking bay to him.
[8] The issues for determination in this court are, firstly , whether the court a quo
erred in finding that the appellant had failed to discharge the onus resting upon him ,
and secondly , whether the court a quo erred in its interpretation of the law relating to
the acquisition of the right of exclusive use areas in terms of the STA.
The onus
[9] This then brings me to the onus of proof. In order to discharge the onus
resting upon him, the appellant had to satisfy the court , firstly , that when Mr
Westbrook sold parking bay 20 to him , Mr Westbrook had title to the parking bay .
Secondly , the appellant had to satisfy the court that he had acquired the right of
exclusive use of the parking bay when it was ceded to the respondent , and thirdly ,
that an error occurred in the conveyancing attorneys ’ offices and Registrar of Deeds
that resulted in the parking bay not having been registered in his name . It is common
cause that Mr Botha originally acquired the right of exclusive use of parking bay 20
from the body corporate. It was alleged that Mr Botha sold unit 77, together with the
right of exclusive use of parking bay 20, to Mr Westbrook . However , the sale and
cession of the right of exclusive us e of the parking bay were not mentioned at all in
the contract of sale and the power of attorney signed by Mr Botha for the transfer of
unit 77 to Mr Westbrook. Therefore, apart from the say -so of Mr Westbrook , there
was no iota of evidence before the court a quo that Mr Botha ever sold the parking
bay to Mr Westbrook nor that Mr Westbrook ever acquired the right of exclusive use
of the parking bay from Mr Botha.
2 Herald Investments Share Block (Pty) Ltd and others v Meer and others, Meer v Body Corporate of
Belmont Arcade and another 2010 (6) SA 599 (KZD) ( Herald Investments ).
5
[10] Furthermore , the appellant accepts the court a quo’s findings that at the time
when unit 77 was transferred from Mr Botha to Mr Westbrook , the body corporate
had not yet ceded the right of exclusive use of parking bay 20 to Mr Botha . It is not in
dispute that at the time when Mr Westbrook sold the parking bay to the appellant , Mr
Westbrook did not have title to it. It is trite law that ‘an individual cannot pass a better
title than she has and a buyer can acquire no better title than that of the seller ’.3
Thus, the offices of the conveyancing attorneys and the Registrar of Deeds could not
have made an error by not ceding the right from Mr Westbrook , which he did not
have , to the appellant .
[11] Another challenge to the appellant ’s case i s that he claims ce ssion of the
parking bay from a third party, who acquired it direct ly from Mr Botha. The appellant
does not allege that the right of exclusive use of the parking bay was fraudulently
acquired or ceded to the respondent consequent upon a misrepresentation. It is trite
that ownership does not pass from a fraudulent transferor to a bona fide purchaser ,
since fraud or misrepresentation will render the agreement to pass ownership
defective. That legal principle does not apply in th e present case , because the
appellant does not plead fraud or misrepresentation, but an error in the office s of the
conveyancing attorneys or Registrar of Deeds. The appellant does not allege that the
respondent is not a bona fide purchaser nor that he bought the parking bay for no
value with notice of any defects in Mr Botha’s title. For that reason, the respondent
would be protected from any vindicatory action.4 It is open to the appellant , if he has
proof that he acquired the right from Mr Westbrook and is prejudiced by the cession
of the right to the respondent, to recover the purchase price paid from the seller and
levies paid to the body corporate. However, the appellant ’s claim against the
respondent , a bona fide purchaser , is not sustainable.
The law on acquisition of the rights of exclusive use areas
[12] In his ground s of appeal , the appellant raised an error of law in the court a
quo’s interpretation of s 27 of the STA. The respondent’s counsel argued that the
3 Amedee v Fidele and others [2021] ZAGPJHC 837 para 95.
4 Knox NO v Mofokeng and others 2013 (4) SA 46 (GSJ) para 30.
6
appeal is solely based on the facts pleaded by the appellant in his pleadings in the
court a quo, which state that an error made in the conveyancing attorney s’ office or
deeds office prevented parking bay 20 from being ceded or transferred to him. It has
nothing to do with s 27 of the STA. Given the fact that the alleged error of law was
raised in the appellant’s notice of appeal , was dealt with in the parties’ heads of
argument , and by the parties in their oral arguments before u s, this court should
decide on whether the court a quo erred in its interpretation of the law and whether
such error was material in the court’s dismissal of the appellant’s application.
[13] At the time when Willem Court was established, a sectional title scheme
would have been established by a developer by making an application to the local
authority.5 When submitting the application for approval , the developer prepares a
draft sectional plan which delineates any exclusive use area.6 At the relevant time, s
27 of the STA provide d that:
‘(1)(a) …
(b) A developer shall cede the right to the exclusive use of part or parts of the common
property to the owner or owners to whom such rights are allocated, by the registration of a
unilateral notarial deed in their favour: Provided that when the developer has transferred the
last section in a scheme, he shall cede to the body corporate the right to any exclusive use
area still registered in his name free of charge and without any compensation .
(2) A body corporate, duly authorized thereto by a unanimous resolution of its members,
may, subject to the provisions of section 5 (1) , request an architect or land surveyor to apply
to the Surveyor -General for the delineation on a sectional plan in the manner prescribed of a
part or parts of the common property in terms of section 5 (3) (f) for the exclusive use by the
owner or owners of one or more sections: Provided that no such delineation shall be made
on the sectional plan in terms of this subsection if such delineation will encroach upon a prior
delineation on the sectional plan o f a part of the common property for the exclusive use by
one or more of the owners.
(3) The body corporate, duly authorized thereto by a unanimous resolution of its
members, shall transfer the right to the exclusive use of a part or parts of the common
property delineated on the sectional plan in terms of subsection (2) to the owner or owners
on whom such right has been conferred by the body corporate , by the registration of a
notarial deed entered into by the parties and in which the body corporate shall represent the
owners of all the sections as transferor .
5 This was in terms of the wording of section 4(1) of the STA prior to the amendment by the Sectional
Titles Amendment Act 44 of 1997.
6 Section 5(3) (f) of the STA.
7
(4) An owner of a section in whose favour the right to the exclusive use of a part of the
common property delineated on the sectional plan is registered, may transfer his interest in
such right to the owner of another section in the scheme by the registration by the registrar
of a notarial deed of cession entered into by the parties.
(5) …’
[14] The STA prescribe s two ways in which exclusive use areas may be
delineated in a common property. Firstly , they may be delineated by a developer in a
draft sectional plan when applying for registration of the sectional title scheme.7
Secondly, they may be delineated by a unanimous resolution of members of the
body corporate , allowing for the exclusive use by the owner or owners of one or
more sections.8 The right of exclusive use is transferred either by a developer or the
body corporate to the owners of sections in the scheme by registration of a notarial
deed of cession. Furthermore, an owner of a section in whose favour the right of
exclusive use is registered may transfer his or her interest in such right to the owner
of another section by registration of a notarial deed of cession.
[15] When Mr Westbrook allegedly acquired ownership of parking bay 20 from Mr
Botha on 27 October 1994 , and subsequently sold the right to the appellant on 4 July
1997, there was only one way in which ownership of an exclusive use area could be
transferred to a new owner : that was by means of registration of a notarial deed of
cession. It is common cause that the right of exclusive use of parking bay 20 was
never transferred to Mr Westbrook nor transferred from him to the appellant by
registration of a notarial deed of cession. On 3 October 1997 , the STA was amended
by the Sectional Titles Amendment Act 44 of 1997, which inserted s 27A . It provide d
that:
‘A developer or a body corporate may make rules which confer rights of exclusive use and
enjoyment of parts of the common property upon members of the body corporate …’
Therefore, a fter the amendment , ownership of an exclusive use area could be
transferred to a new owner either by means of registration of a notarial deed or by
the rules of the body corporate.
7 Ibid.
8 Section 27(2) of the STA.
8
[16] In addition to these two ways of acquiring the right of exclusive use areas in a
common property , the STA recognises rights that were acquired by other means ,
other than the registration of a notarial deed prior to the coming into effect of the
STA. In this regard , the original wording of s 60(3) of the STA provided that:
‘Where an owner has in terms of rules made under the Sectional Titles Act, 1971, been
granted the right to the exclusive use of a part or parts of common property, the body
corporate concerned shall, if so requested after the commencement date by the owner , and
if any mortgagee of the owner’s section consents in writing thereto, transfer such right to the
owner by the registration of a notarial deed entered into by the parties, in which the body
corporate shall represent the owners of all relevant sections as transferor .’
On 22 May 1991 , s 60(3) was amended by s 25 of the Sectional Titles Amendment
Act 63 of 1991 . The first part of the amended section relevant to this matter provides
that:
‘Where an owner has, prior to the commencement of this Act, acquired in terms of an
agreement or been granted in terms of rules made under the Sectional Titles Act, 1971 , the
right to the exclusive use of a part or parts of common property, the body corporate
concerned shall , if so requested after the commencement date by the owner… transfer such
right to the owner by the registration of a notarial deed entered into by the parties…’
[17] The different ways in which exclusive use areas can exists under the STA
were stated by Wallis J in Herald Investments as follows:9
‘As matters stand at pres ent, therefore, the Act recognis es four different ways in which an
exclusive use area can exist and an exclusive use right be enforced. Under the Act such
rights can now be created only by way of registration under s 27 or a rule under s 27A.
However, by virtue of the transitional provisions of s 60(3), the Act continues to recogni se
such rights when created by an agreement in force when the 1971 Act applied or under rules
produced in terms of the 1971 Act .’
[18] Initially , counsel for the appellant contended that the STA does not apply to
the present matter . However , during argument , she conceded that the STA applies
to the present matter. To my mind , that concession was well made since the STA
was in operation when Willem Court was established; when the exclusive use areas
were delineated ; when parking bay 20 was ceded to Mr Botha and allegedly sold to
Mr Westbrook ; and when it was eventually sold by Mr Westbrook to the appellant. It
follows that the appellant could not have acquired the right of exclusive use by
9 Herald Investments para 22.
9
agreement or under the rules prescribed in terms of the Sectional Titles Act 66 of
1971 (the 1971 Act), since the 1971 Act predates the establishment of the s cheme.
[19] The appellant misconstrued both s 60(3) and Herald Investments with regard
to the acquisition of the rights of exclusive use areas under s 27 of the STA as
amended . The original s 60(3 ) recogni sed the right of exclusive use areas granted to
owners in terms of the rules made under the 1971 Act. The amended s 60(3)
recogni ses the right of exclusive use granted to the owners of sections by agreement
or rules made under the 1971 Act prior to the commencement of the STA. The effect
of s 60(3) is to preserve the rights created by an agreement or produced in terms of
the rules prior to the coming into effect of the STA. In Herald Investments , Wallis J
sketched the history of the acquisi tion of the right of exclusive use area s at the time
of the adoption of the STA. He stated that:10
‘… there were people who had acquired rights to the exclusive use of a part or parts of
common property in existing sectional title developments, by way of rules made under the
1971 Act. ’
Wallis J further held that the effect of the amendment to s 60(3) is :11
‘… to recognise, as mentioned earlier, the possibility that, under the 1971 Act , exclusive use
rights might have been acquired by way of an agreement , rather than under the rules
applicable to a sectional title development’.
[20] I agree with the contention by the appellant’s counsel that after the
amendment to s 27 and the insertion of s 27A , the right of exclusive use area s could
be acquired by an alternative means to the registration of a notarial deed of cession ,
namely, by the rules of the body corporate. However, the problem with this
contention is that the appellant does not allege that he acquired the right of exclusive
use of the parking bay by means of the rules of the body corporate. Accordingly, the
appellant had never acquired ownership of the exclusive use of parking bay 20 within
the legal framework of s 27 of STA as amended. Therefore, the appellant’s
contention that the court a quo made an error of law in its interpretation of the
acquisi tion of the right of exclusive use areas under s 27 of STA should fail .
Consequently, the appeal should be dismissed with costs.
10 Ibid para 16.
11 Ibid para 19.
10
[21] In the result, the appeal is dismissed with costs on scale A.
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MATHENJWA J
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POYO DWLATI JP
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BRAMD HEW AJ
Appearances
Applicant ’s counsel: Ms G J Moodely
Instructed by: Andrew Peens & .Asociates
Durban
Responden t’s counsel: Mr. D W Eades
Instructed by: Dickson & Theunissen Inc.
Durban
Date of hearing: 15 November 2024
Date of judgment: 26 January 2025