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[2001] ZASCA 28
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Cape Explosive Works Ltd and Another v Denel (Pty) Ltd and Others (60/99) [2001] ZASCA 28; [2001] 3 All SA 321 (A); 2001 (3) SA 569 (SCA) (19 March 2001)
reportable
case no: 60/99
In the matter
between:
CAPE EXPLOSIVE WORKS LIMITED
1
st
Appellant
AECI LIMITED
2
nd
Appellant
and
DENEL (PTY) LTD
1
st
Respondent
ARMAMENTS CORPORATION
2
nd
Respondent
OF SOUTH AFRICA LIMITED
REGISTRAR OF
DEEDS, CAPE TOWN
3
rd
Respondent
Coram
:
Vivier, Olivier, Zulman, Streicher, JJA and Mthiyane,
AJA
Heard
:
22 February
2001
Delivered
:
19 March 2001
Summary
: Real
rights erroneously omitted from subsequent title deeds - Binding on present
owner
J U D G M E N T
STREICHER JA:
[1]
This is an appeal against a
judgment in the Transvaal Provincial Division reported as
Denel (Pty) Ltd v
Cape Explosive Works Ltd
1999 (2) SA 419
(T). The main issue to be decided
in this appeal is whether certain conditions registered in a title deed and
erroneously omitted
from subsequent title deeds are binding on the present owner
of the relevant property.
[2]
During 1973 the first appellant,
Cape Explosive Works Ltd (“Capex”) sold two immovable properties to
the second respondent,
the Armaments Development and Production Corporation of
South Africa Limited whose name was subsequently changed to the Armaments
Corporation of South Africa Limited (“Armscor”). The properties were
Farm No 1065, measuring 459.6830 ha, and Portion
3 of the Farm Helderberg
Sleeper Plantation No 787, measuring 11.3903 ha. Both properties were situated
in the Administrative District
of Stellenbosch. In terms of clause 6 of the deed
of sale Armscor undertook that the properties would only be used for the
development
and manufacture of armaments and in terms of clause 7(a) thereof
Armscor granted to Capex the “first right to repurchase”
the
properties, at a price to be determined in a prescribed manner, in the event of
the properties no longer being required for the
use set out in clause 6. Armscor
agreed in terms of clause 7(a)(vii) to the registration of the right conferred
on Capex in terms
of clause 7(a) against its title deeds to the properties in
the Deeds Office. Clause 7(b) provided that in the event of Capex repurchasing
the properties Capex would have the right to purchase all or any of the
improvements and other facilities erected on the properties
which Armscor was
desirous of selling, at a price and on such further terms as might be agreed
upon between Capex and Armscor. Clause
6 (with the exception of certain
definitions) and clause 7 are quoted in full in the judgment of the court
a
quo
at 426D-G and 426H-427I respectively.
[3]
The two
properties were transferred to Armscor and “(i)ts Successors in Title or
Assigns (hereinafter styled the Transferee)”
by Deed of Transfer
T40652/1974. The deed of transfer provided in respect of each of the
properties:
“
FURTHER SUBJECT
in respect of the whole of the property hereby
transferred to the following conditions which shall be binding on the Transferee
herein
and its Successors in Title and which are imposed by the Transferor
herein its favour, namely:
The property hereby sold shall be used by the Transferee only:
(i) for the development and manufacture of armaments by virtue of the
provisions of the Armaments Act No. 87 of 1964 as amended
and the Armaments
Development and Production Act No. 57 of 1968, as well as any future amendments
of both the aforesaid Acts, and/or
(ii)
by the Government of the Republic of South Africa for the development and
manufacture of armaments, and
(iii) whilst such development and manufacture
of armaments as set out in (i) and (ii) above are being carried out, for any
defence
or military operational purpose by the South African Defence Force, and
(iv) whilst such development and manufacture as set out in (i) and (ii) are
being carried out, for the manufacture at any time of
anything whatsoever for
commercial exploitation provided that such operations will in no way impinge on
or compete directly or indirectly
with the businesses conducted bona fide at
that time by AE & CI Limited (“AE & CI”) and/or any of its
subsidiary
and/or associated companies.
(v) for the purposes of the
aforegoing condition:
the word “armaments” shall mean . . .
“subsidiary company” . . .
“associated company” . . .
“equity share capital” . . .
2. (i) In the event of the property being no longer required for the use as set
out in clause 1(i) and 1(ii) above, the Transferor
herein shall have the first
right to repurchase the property (exclusive of improvements) from the
Transferee, at the price paid by
the Transferee herein suitably adjusted to make
provision for any change in the value of money between the date of sale to the
Transferee
herein and the time of receipt by the Transferor of the notice
referred to in clause 2(ii) hereunder.
(ii) The Transferee hereby undertakes that upon the property no longer being
required for the use referred to in 2(i) above to advise
the Transferor of that
fact by notice in writing. The Transferor shall thereupon be entitled to
exercise the right referred to in
clause 2(i) above within 90 days after the
repurchase price has been agreed upon between the Transferor and the Transferee
or failing
such agreement, within 90 days after determination of the repurchase
price as hereinafter provided.
(iii)
Should the Transferor and the Transferee fail to reach agreement on the price
at which the Transferor shall be entitled to
repurchase the property within
fourteen days following the date of receipt of the notice referred to in 2(ii),
the price shall, if
demanded by the Transferor by notice in writing to the
Transferee within a period of seven days following the date of expiration
of the
aforesaid fourteen days, be submitted for determination to . . .
(iv) . .
.
If the Transferor within the said period of 90 days referred to in 2(ii) by
notice in writing to the Transferee signifies that it
will repurchase the
property, the Transferee shall sell the property to the Transferor at the price
agreed upon between the Transferor
and the Transferee and failing agreement , at
the price determined in accordance with the provisions of this condition. Until
the
expiration of the said period of 90 days, the Transferee shall not sell or
otherwise dispose of or alienate the property or any portion
thereof unless the
Transferor has by notice in writing to the Transferee declined to repurchase the
property.
(vi) . .
.”
(I shall hereinafter refer to these conditions as condition 1 and condition 2
respectively.)
Clauses 6 and 7 of the deed of
sale differ in material respects from conditions 1 and 2. Clause 7(b), for
example, has no counterpart
in the deed of transfer and unlike clauses 6 and 7
conditions 1 and 2 were expressly stated to be binding on Armscor’s
successors
in title.
[4]
Subsequent to the transfer of the
properties-
4.1 conditions 1and 2 in so far as they applied in respect of Portion 3 of the
Farm Helderberg Sleeper Plantation No. 787 was cancelled
by way of a notarial
deed of cancellation registered on 25 October
1977;
4.2 a portion, measuring 7007 m², of Farm
1065 was transferred leaving a remaining extent measuring 458,9823 ha;
4.3 a
piece of land, measuring 7007 m² was consolidated with the Remaining Extent
of Farm 1065 to form Farm 1105 measuring 459,6830
m² and a certificate of
consolidated title no T33717/1977 was issued in respect of the consolidated
property;
4.4 Portion 1 of Farm 1105 measuring 1,9258 ha, was excised from
Farm 1105 and a certificate of registered title was issued in respect
thereof;
4.5 the Remaining Extent of Farm 1105 measuring 457,7572 ha, was
renamed to become the Remaining Extent of Erf 632 Firgrove;
4.6 the Remaining
Extent of Erf 632 Firgrove was transferred by Armscor to the first respondent,
Denel (Pty) Limited (“Denel”),
in terms of Deed of Transfer
T75861/92;
4.7 the Remaining Extent of Erf 632 Firgrove was consolidated with
a number of smaller properties to form Erf 635 Firgrove measuring
458,0678 ha
and Certificate of Consolidated Title T1178/94 was issued in respect
thereof;
4.8 Erf 637 Firgrove, measuring 1,7163 ha was excised from Erf 635
and Certificate of Registered Title T1179/94 was issued in respect
thereof
leaving a remaining extent of Erf 635 measuring 456,3515 ha held by Denel in
terms of Certificate of Consolidated Title T1178/94.
[5]
From the
aforegoing it is clear that most of the land forming part of the Remaining
Extent of Erf 635 also formed part of Farm 1065
which had been transferred
subject to conditions 1 and 2. However, condition 2 was omitted from Certificate
of Registered Title T
33717/77, the subsequent Deed of Transfer T 75861/92,
Certificate of Consolidated Title T 1178/94 and Certificate of Registered Title
T1179/94 and condition 1was according to the first three of those title deeds
only applicable to a very small portion of the land
presently known as Remaining
Extent of Erf 635.
[6]
A dispute arose between Capex and Denel as
to whether Capex would be entitled to repurchase that portion of Erf 635 which
formed
part of Farm 1065 in the event of it no longer being required for the use
set out in condition 1. As a result Denel applied for an
order declaring that
its ownership of Erf 635 was not in respect of any portion thereof subject to
condition 2. Capex, in a counter-application,
applied for an order directing the
Registrar of Deeds, Cape Town to rectify Certificate of Consolidated Title T
33717/77, Deed of
Transfer T 75861/92 and Certificate of Consolidated Title T
1178/94 so as to include conditions 1 and 2 in so far as they related
to the
portions of Farm 1065 which had been incorporated into the Remaining Extent of
Erf 635 Firgrove; an order directing the Registrar
of Deeds to rectify
Certificate of Registered Title T1179/1994 so as to include the conditions;
orders declaring that Denel was bound
to comply with the conditions; an order
interdicting Denel from failing to comply with the provisions of the conditions;
and an order
interdicting Denel from selling or transferring the restricted
properties to any person without complying with condition
2.
[7]
The court
a quo
held at 430A-B:
“In my view the only logical explanation for the difference between the
land use restriction in title deed 33717/77 from what
it was in title deed
40652/74 and the omission in title deed 33717/77 of the right of repurchase is
an error, and a very big one,
by the conveyancer and the Registrar of Deeds.
Incidentally, the Registrar of Deeds confirms that. It follows then that I
accept
on probability both as far as the application and the counter-application
are concerned that the difference between the two title
deeds was caused by an
error.”
The correctness of this finding was not
challenged before us..
[8]
The court
a quo
also found
that:
8.1 Clause 7(b) was void for vagueness because neither the improvements which
the appellant had the right to purchase, nor the price
payable in respect
thereof was certain or determinable. Clause 7(a) could not be severed from
clause 7(b) and was, for that reason,
also void. Neither could therefore be
registered as it could not be the duty of the Registrar of Deeds to register the
terms of void
agreements.
8.2 Clause 6 was registrable in terms of s 63(1) of the Deeds Registries Act 47
of 1937 (“the
Deeds Registries Act”
;) in that it restricted the
exercise of Armscor’s right of ownership in respect of the properties but
the parties did not intend
the restriction to be binding on Armscor’s
successors in title and specifically agreed not to register it against the
property.
[1]
Clause 7 did not affect
the property or curtail Armscor’s right of enjoyment of the property in
the physical sense. On its
own it was not registrable in terms of
s 63(1).
It
was not ancillary to clause 6 and therefore not registrable on that basis
either.
On the strength of these findings the
court
a quo
dismissed the counter-application and granted an order
declaring that Denel’s right of ownership in erven 635 and 637 Firgrove
was in no way encumbered by condition 2.
[9]
Notwithstanding the material differences between conditions 1 and 2
and clauses 6 and 7, counsel for Denel submitted that the deed
of sale, more
particularly clauses 6 and 7 thereof, constituted the causa for the registration
of conditions 1 and 2. For this reason,
so he submitted, the court
a quo
correctly decided that if clauses 6 and 7 were not capable of being registered
or not intended to be registered, conditions 1 and
2 were not registrable. In
support of this contention he relied on the judgment in
De Wet v Apex Mines,
Ltd
1943 TPD 190.
In that case a testator bequeathed two farms to certain of
his children and grandchildren. Clause 8 of the will provided,
inter
alia
: “Ik begeer dat indien de kolemijnen op mijne genoemde plaatsen .
. . ter eeniger tijd mochten betalen dat de zuiwere opbrengst
daarvan
gelijkelijk onder mijne kinderen voornoemd (
referring to all his
children
) zal verdeeld worden.” In the deed of transfer the transfer
was expressed to be “onderhewig aan die kondisie vervat in
die testament
van . . . luidende . . . ” and then followed
verbatim
the provision
cited. The condition was omitted from subsequent title deeds. In an application
for the rectification of a subsequent
title deed, so as to include the
condition, the court had to determine whether the condition was capable of being
registered. The
court said at 195:
“The persons claiming that there is a burden upon the land which ought to
be registered against the first respondent’s
transfer must stand or fall
by the will; and the first respondent is quite entitled to say that in as much
as its predecessors ought,
on a proper construction of the will, to have had a
clean transfer, there can be no compulsion upon it to submit to any endorsement
of the terms of the will upon the transfer now in question. Mr.
Price
,
for the third respondent, is, therefore, right in saying that the whole
controversy between the parties is as to the intention of
the testator as
manifested in the will.”
Read in isolation the
passage would seem to support counsel’s contention. However, it was stated
expressly in the deed of transfer
that the condition registered was the
condition contained in the will. It was therefore necessary, in order to
determine whether
the condition which had been registered was capable of being
registered, to interpret the condition within the context of the will.
The
sentence in the judgment preceding the passage cited above makes it clear that
it was for this reason that the applicant had
to stand or fall by the will. The
court said:
“They did no more than reproduce upon the titles the actual words of the
will; and if these words do not bring about the legal
result now contended for,
or any other registrable detraction from full rights of ownership, the form in
which the earlier deeds
of transfer were registered takes the matter no
further.”
[10]
In
Commissioner of Customs
and Excise v Randles, Brothers & Hudson, Ltd
1941 AD 369
at 398
Watermeyer JA said in respect of the passing of ownership of movable
property:
“Ownership of movable property does not in our law pass by the making of a
contract. It passes when delivery of possession
is given accompanied by an
intention on the part of transferor to transfer ownership and on the part of the
transferee to receive
it. . . .If the parties desire to transfer ownership and
contemplate that ownership will pass as a result of the delivery, then they
in
fact have the necessary intention and the ownership passes by
delivery.”
This decision was followed in
Trust
Bank van Afrika Bpk v Western Bank Bpk
1978 (4) SA 281
(A). At 301
in
fine
-302A Trengove AJA said:
“Volgens ons reg gaan die eiendomsreg op ↵ roerende saak op ↵
ander oor waar die eienaar daarvan dit aan ↵
ander lewer, met die
bedoeling om eiendomsreg aan hom oor te dra, en die ander die saak neem met die
bedoeling om eiendomsreg daarvan
te verkry. Die geldigheid van die
eiendomsoordrag staan los van die geldigheid van enige onderliggende
kontrak.”
There is no reason why the same principle should not apply to
the transfer of ownership of immovable property (see Van der Merwe
Sakereg
2
nd
ed p310; Silberberg and Schoeman
The Law of
Property
3
rd
ed Kleyn and Boraine at 110). It follows that it is
the intention with which transfer was given and received which had to be
determined
in so far as a causa was required for the transfer of the properties
subject to conditions 1 and 2.
[11]
Capex passed transfer of the
properties subject to conditions 1 and 2.
Prima facie
, therefore, it was
Capex’s intention to do so. Armscor, which was the second respondent in
the court
a quo
and which is the second respondent in this appeal, never
claimed rectification of Deed of Transfer T40652/1974 in terms of which
the
properties were transferred to it and never denied its intention to receive
transfer of the properties subject to conditions
1 and 2. It never complained
about the presence of the conditions or about the wording of the conditions in
the deed of transfer.
Moreover, during 1977 it entered into a notarial agreement
with Capex in terms of which it was agreed that the conditions be cancelled
in
so far as they applied to Portion 3 of the Farm Helderberg Sleeper Plantation.
This latter fact is particularly significant in
that it indicates that Armscor
had full knowledge of the terms of conditions 1 and 2 but did nothing about
them.
Prima facie,
therefore, Armscor intended to receive transfer of the
properties subject to conditions 1 and 2. Denel similarly did not allege that
Capex and Armscor had not intended to pass and receive transfer of the
properties subject to conditions 1 and 2. The matter therefore
had to be decided
on the basis that Capex and Armscor intended to pass and receive transfer
subject to conditions 1 and 2. The issue
which had to be decided on that basis
was whether conditions 1 and 2 were capable of being registered and what the
effect of their
omission from subsequent title deeds was.
[12]
In
terms of
s 3
of the
Deeds Registries Act all
real rights in respect of immovable
property are registrable. To determine whether a particular right or condition
in respect of
land is real, two requirements must be satisfied:
1 The intention of the person who creates the real right must be to bind not
only the present owner of the land, but also his successors
in title;
and
2 The nature of the right or condition must be
such that the registration of it results in a ‘subtraction from
dominium’
of the land against which it is registered.
(
Erlax Properties (Pty) Ltd v Registrar of Deeds
[1991] ZASCA 187
;
1992 (1) SA 879
(A) at
885B.)
[13]
Counsel
for Denel contended that condition 2 constituted a personal right (in the nature
of an option) to re-purchase which could
not be converted into a real right by
registration. An option consists of an offer to enter into a contract together
with an agreement
to keep that offer open for a certain time (
Boyd v Nel
1922 AD 414
at 421). Condition 2 does not contain an offer to enter into a
contract and does, therefore, not purport to be an option.
[14]
It was further contended on behalf of Denel that condition 2
could not constitute a valid real right as it imposed an obligation
on the
transferee to notify the transferor when the properties were no longer required
for the use to which they had been restricted.
As authority for this proposition
he referred to
Schwedhelm v Hauman
1947 (1) SA 127
(E) in which the court
applied the rule of the Roman law that, with the exception of the servitudes
oneris ferendi
and
altius tollendi
, a servitude cannot cast upon
the owner of the servient tenement an obligation actively to do something. In my
view the stipulation
referred to was not intended to burden the transferee with
an obligation. Condition 1 contained a use restriction and condition 2
provided
that in the event of the property no longer being required for the use to which
it was restricted Armscor or its successors
in title would advise Capex
accordingly, whereupon Capex would become entitled to re-purchase the property
failing which the property
would no longer be subject to the use restriction.
Upon the property no longer being required for the restricted use it would be
useless to the owner thereof unless Capex repurchased it or the use restriction
could be terminated. Condition 2 was intended to
provide Armscor and its
successors in title with a mechanism for such termination. Hence, although
framed as an obligation the giving
of notice was as much a right as an
obligation. I therefore do not consider it necessary to deal with the question
as to whether
or not the rule relied upon in
Schwedhelm
is absolute. (
See
Van der Merwe v Wiese
1948 (4) SA 8(C)
, Van der Merwe
Sakereg
2
nd
ed 474-476, Silberberg and Schoeman
The Law of
Property
3
rd
ed (Kleyn and Boraine) at 378-379).
[15]
The use restriction according to condition 1 was materially
different from the use restriction according to condition 1 read with
condition
2. The two conditions were not independent of one another and they could not be
separated. They formed a composite whole.
They were specifically stated to be
binding on the transferee, being Armscor, and its successors in title.
Furthermore, they constituted
a burden upon the land or a subtraction from the
dominium
of the land in that the use of the property by the owner thereof
was restricted. The right embodied in conditions 1 and 2, read together,
therefore constituted a real right which could be registered in terms of the
Deeds Registries Act.
[16
]
A real right is adequately protected by
its registration in the Deeds Office (see
Frye’s (Pty) Ltd v Ries
1957 (3) SA 575
(A) at 582A). Once Capex’s rights had been registered
they were maintainable against the whole world (
Frye’s
case at
583E). They were not extinguished by their erroneous omission from subsequent
title deeds and the fact that Denel’s
title deed, registered in the Deeds
Office, did not reflect those rights does not assist Denel. We have a negative
system of registration
where the deeds registry does not necessarily reflect the
true state of affairs and third parties cannot place absolute reliance
thereon
(see
Knysna Hotel CC v Coetzee NO
[1997] ZASCA 114
;
1998 (2) SA 743
at 753A-D;
Barclays
Nasionale Bank Bpk v Registrateur van Aktes
1975 (4) SA 936
(T); and
Standard Bank van S.A. Bpk v Breitenbach
1977 (1) SA 151
(T) at 156C-E).
In
Sakereg op cit
at 342 the negative system of registration is explained
as follows:
“In die geval van ↵
negatiewe registrasiestelsel
word nie
gewaarborg dat die inligting wat in die register vervat is, korrek is nie.
Indien ↵
bona fide
derde dus op die registers staatmaak, doen hy
dit op eie risiko en word hy die slagoffer van valse inliging in die register.
Die
ware eienaar verloor in geen omstandighede sy reg ten gunste van die
bona
fide
verkryger nie. Hierdie stelsel bied dus groter sekuriteit aan die ware
eienaar as aan die
bona fide
derde wat die slagoffer van ↵ foutiewe
inskrywing kan word.”
And later on the same page:
“Hoewel eiendom en beperkte saaklike regte nie sonder registrasie oorgedra
kan word nie, word nêrens gewaarborg dat die
aktesregister ↵ juiste
beeld van die ware toedrag van sake gee of dat derdes absoluut daarop kan
staatmaak nie.”
(See also
The Law of Property loc cit
106)
In
Grant v Stonestreet
1968 (4) SA 1
(A) Ogilvie Thomson JA said at
20A-B:
“Having regard to our system of registration, the purchaser of immovable
property who acquires clean title is not lightly to
be held bound by an
unregistered praedial servitude claimed in relation to that property. If,
however, such purchaser has knowledge,
at the time he acquires the property, of
the existence of the servitude, he will . . . be bound by it notwithstanding the
absence
of registration”
However, in that case
the court was not dealing with a real right: it was dealing with an agreement in
terms of which reciprocal servitudes,
which had never been registered, had been
granted. An agreement to grant a servitude gives rise to a real right only when
it has
been registered (see
Van Vuren v Registrar of Deeds
1907 TS 289
at
295; Van der Merwe
Sakereg
op cit
526-527, and
The Law of
Property
op cit
380-381). Dealing, at 23H-24E, with the distinction
between real rights and contractual rights, in that case unregistered
servitudes,
Ogilvie Thomson JA referred to
Willoughby’s Consolidated Co
Ltd v Copthall Stores Ltd
1918 AD 1
where Innes CJ said at 16:
“Now a servitude, like any other real right, may be acquired by agreement.
Such an agreement, however, though binding on the
contracting parties, does not
by itself vest the legal title to the servitude in the beneficiary, any more
than a contract of sale
of land passes the
dominium
to the buyer. The
right of the beneficiary is to claim performance of the contract by delivery of
the servitude, which must be effected
coram lege loci
by an entry made in
the register and endorsed upon the title deeds of the servient
property.”
The
Grant
case is
therefore no authority for a proposition that a registered real right is no
longer maintainable against the whole world when
it is erroneously omitted from
a subsequent title deed.
[17]
Before us it was submitted on behalf
of Denel that because of the release of the Farm Helderberg Sleeper Plantation
No 787 from the
use restriction it was no longer possible to arrive at a
purchase price for the property that remained subject to conditions 1 and
2 in
that a separate price was not agreed in respect of the remaining property.
However, Denel did not base its application or its
defence to Capex’s
counter-application on this ground. The issue was not raised in the affidavits
filed or during argument
in the court below. This court cannot therefore be
satisfied that all the relevant facts relating to this issue have been placed
before it. We are in no position to deal with the issue at this late
stage.
[18]
Capex reserved a real right in the terms set out
in conditions 1 and 2 in respect of Farm No. 1065 and that real right has not
been extinguished. It follows that Denel’s application should have been
dismissed. It follows, furthermore, that conditions
1 and 2 should have been
carried forward into subsequent title deeds in respect of property that formed
part of Farm 1065.
[19]
Counsel for Denel contended that even if
the conditions should have been carried forward Capex was not entitled to orders
interdicting
Denel from using the restricted properties for uses other than
those specified in condition 1 and from selling or transferring the
restricted
properties to any person without complying with the provisions of condition 2.
He submitted that there was no evidence
justifying a reasonable apprehension
that Denel would act contrary to the provisions of these conditions. However, in
a letter dated
12 November 1996 Capex’s attorneys wrote to Denel as
follows-
“(O)ur client requires an undertaking that you will not seek to use the
relevant properties for anything other than the development
and manufacture of
armaments and that you will not dispose of any part of the property in breach of
our client’s pre-emptive
right as contained in clause 7 of the relevant
sale agreement and in clauses 1.1 and 1.2 on pages 15 to 19 and 25 of deed of
transfer
T40652/1974 pending the determination of the court
proceedings.”
Such an undertaking was not given.
Instead, Denel proceeded to produce a development plan relating to the relevant
property which
indicates that the property is to be developed and sold off for,
amongst others, residential and commercial purposes. The plan has
been submitted
to the Helderberg Municipality and to the public at large for comment and
objection. For these reasons Capex is entitled
to orders interdicting Denel
from acting contrary to the provisions of conditions 1 and
2.
[20]
The following order is made:
1 The appeal is upheld with costs including the costs of two counsel.
2 The following order is substituted for the order of the court
a
quo
:
2.1 The applicant’s application is dismissed with costs including the
costs of two counsel.
2.2 The following
order is made in respect of the first respondent’s
counter-application:
2.2.1 Subject to compliance with all relevant statutory
provisions and Deeds Office requirements the Registrar of Deeds, Cape Town
is
ordered to rectify Certificate of Consolidated Title T1178/94 and Certificate of
Registered Title T1179/1994 so as to include
the conditions reflected from p 15
line 7 to p 19 line 29 of Deed of Transfer T40652/1974.
2.2.2 it is declared
that the restricted properties may be used, in so far as the conditions apply to
them, only for the purposes
described in clause 1 of the said conditions.
2.2.3 it is declared that in the event of the restricted properties no longer
being required for the uses set out in clauses 1(i)
and 1(ii) of the said
conditions the first respondent has the first right to repurchase them in
accordance with clauses 2(i) to (vi)
of the said conditions.
2.2.4 the applicant is interdicted from using the restricted properties for uses
other than those specified in clause 1 of the said
conditions.
2.2.5 the applicant is
interdicted from selling or transferring the restricted properties to any person
without complying with the
provisions of clause 2 of said
conditions.
2.2.6 the applicant is ordered to pay the costs including the
costs of two
counsel.
---------------------------
P E
STREICHER, JA
Vivier,
JA)
Olivier, JA)
Zulman, JA)
Mthiyane, AJA)
concur
[1]
S 63(1)
provides as follows:
“(1) No deed, or condition in a deed, purporting to create or embodying
any personal right, and no condition
which does not restrict the exercise of any
right of ownership in respect of immovable property, shall be capable of
registration:
Provided that a deed containing such a condition as aforesaid may
be registered if, in the opinion of the registrar, such condition
is
complementary or otherwise ancillary to a registrable condition or right
contained or conferred in such deed.”