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[1991] ZASCA 187
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Erlax Properties (Pty) Ltd. v Registrar of Deeds Johannesburg and Others (599/89) [1991] ZASCA 187; 1992 (1) SA 879 (AD); (29 November 1991)
IN THE SUPREME COURT OF SOUTH
AFRICA APPELLATE DIVISION
In the matter between :
'
ERLAX PROPERTIES (PROPRIETARY)
LIMITED
Appellant
and
THE REGISTRAR OF DEEDS,
JOHANNESBURG
First
Respondent
THE BODY CORPORATE OF CHELSEA
SQUARE
Second Respondent
FRANK JOHN McCLEMENT
Third Respondent )
RENA MARGARET MATHEWS
Fourth Respondent
ANDRE EDWARD BEDDY and
MARGARET JANET BEDDY
Fifth Respondent
YOLANDE STELLA THERESE COMTURSI
Sixth Respondent
ELIN-MARLISE PRINZEN
Seventh Respondent
ALFRED ZIMMERMAN
Eighth
Respondent
IAN BABICEAU
Ninth
Respondent
Coram
: JOUBERT, E M
GROSSKOPF, FRIEDMAN, NIENABER J J A
et
KRIEGLER A J A
Date of Hearing
: 21 May
1991
Date of Delivery
: 29
November 1991
/2
2
JUDGMENT
JOUBERT
: J
A
This is an appeal against a
judgment of GOLDBLATT A J in the Witwatersrand Local Division
dismissing an application of the appellant
for a declaratory order
against the respondents. The judgment of the Court
a quo
is
fully reported in 1990(3) SA 262 (W). With leave of the Court
a
guo
the appellant appeals to this Court.
The appellant ("Erlax")
is the developer of a sectional title scheme, known as Chelsea Sguare
(the "scheme"),
which was established on Erf 1514 situated
in Berea Township, Johannesburg, in accordance with the provisions of
the Sectional Titles
Act No 66 of 1971. The scheme was registered in
the Deeds Registry, Johannesburg, on 10 September 1985. This was
effected in terms
of sec 8 (1)(a) by the registration of sectional
plan No SS 171/1985
/3
3
(the "sectional plan")
and the opening of a sectional title register relating to the land
subject to the scheme. Simultaneously
therewith the Registrar of
Deeds closed certain entries in the land register.with reference to
Erf 1514 (sec 8(2)(a)). In law Erf
1514 ceased to exist. The Act
provides for the creation of units, each consisting of a section, as
defined, together with an undivided
share in the common property.
"Common property" refers to the land on which the buildings
are situated and such parts of
the buildings are not included in a
section. Thus it is stated in LAWSA, vol. 24 s.v. Sectional Titles
and Shareblocks para. 218:
"All lands included in a sectional
title scheme, whether it is the soil under the building, the land for
for the yet undeveloped
parts of the scheme or developed land, is
considered to be common property."
Erlax, as developer, envisaged
that
/4
4
the development of the scheme was
to proceed in two phases.
Technically such a development is
referred to as a "phased
development" of a scheme.
According to the first phase
development the scheme would
initially comprise 8 units.
Each unit was to consist of a
duplex flat together with a
carport (the "section")
and an undivided share in the common
property apportioned in accordance
with the participation
quota of its section. See sec 1
s.v. "unit". The second
phase development was to be
undertaken
in the future
by the
development of an additional 14
units on the common property
in accordance with the provisions
of sec 18(1). Section
18(1) reads as follows:
"Where a building, in respect
of which a sectional plan has been registered under this Act, is to
be extended in such a manner
that
an existing section is to be
added to
- - - -, the developer or,
/5
5
if the developer has ceased to
have any share in the common property, the body corporate, with the
consent in writing of all the owners
of sections and of all holders
of mortgage bonds shall -
(a)
prepare a scheme in respect
of the extension
and, in
terms of section 4, submit that scheme to the local authority for
approval;
(b) if the scheme in question
is
approved by the local authority,
upon the extension being
certified
by an architect or a land surveyor
as being
sufficiently complete
for occupation, apply to the
registrar
for the registration
of a plan in respect of the
relevant extension." (My underlining).
Section 18(1) prescribes the
procedure to be followed by a
/6
6
developer
in implementing his right of extension of an existing development
scheme.
On 10
September 1985 the Registrar of Deeds, acting under sec 8(2)(d),
simultaneously with the opening of the sectional title register,
issued to Erlax, as developer,
a certificate of registered
sectional title in respect of each of the initial 8 units comprised
in the
scheme
. A duplicate of each sectional title deed
was incorporated by the Registrar of Deeds in the sectional title
register. See sec 1 s.v.
"sectional title register". After
the opening of the sectional title register Erlax in accordance with
the provisions of
sec 8 A(1) sold and transferred to purchasers all
the units in the scheme, except for unit No 7 of which it has
remained the registered
owner. Transfer of the sold units to the
purchasers was effected by means of endorsements made by the
Registrar of Deeds in the prescribed
/7
7
form on their sectional title
deeds (sec 11(1)(a)).
By divesting himself of the
ownership of all units comprised in a scheme a developer would cease
to have any share in the common property
(sec 26(2)). He would
accordingly cease to have any say in the affairs of the scheme. In
order to secure its right as developer to
extend the scheme for the
second phase development of the additional 14 units on the common
property, Erlax retained the ownership
of unit No 7.
Furthermore, simultaneously with
the opening of the sectional title register on 10 September 1985,
Erlax in terms of sec 5(3)(d)(i)
caused the sectional plan to be
endorsed with certain conditions of sectional title "
burdening
the sections and common property and binding the owner/s from time to
time
, his/their heirs, executors, administrators,
successors
or assigns as well as the holders
/8
8
of sectional mortgage bonds and
other registered real rights,
namely :-
1. No person whose consent is
required in terms of section 18 of the Sectional Titles Act shall be
entitled to withhold his/her/its
written consent
to the developer
as owner of Unit No 7
, preparing and submitting a scheme to the
local authority in terms of the said section for approval and upon
such approval, taking
all necessary steps
to erect
additional
buildings
on the land in terms of and as indicated on the sketch
plan filed of record in my Sectional Titles Protocol, and
thereafter
applying for the registration of a sectional plan
, provided such
additional buildings shall harmonise with the existing buildings on
the land and shall not exceed two storeys in height
nor a total bulk
/9
9
of 1600 square metres.
Furthermore,
not more
than 14 units shall be comprised in
the said additional
buildinq
.
2. All persons having an interest
in the sections
and common property shall be
obliged to allow
the developer to exercise his positive right to
proceed
with the development in the manner envisaged herein,
and no persons having an interest in the sections and common
property shall be entitled to interfere with or obstruct the
developer
from erecting on the common property the additional
buildings in terms of and as indicated on the said sketch plan; nor
shall such
persons have any rights of access to or use of that
portion of the common property described and identified on the said
sketch plan
/10
10
as 'the remaining extent' until
such time as the aforesaid additional buildings have been completed
and the sectional plan/s thereof
registered, provided that the
developer shall pay all rates and taxes and imposts due in respect of
such portion while this condition
remains applicable.
3. No person mentioned in
paragraph 2 above shall have any right to or in any unit comprised in
the said
additional buildings
,
of which units the developer
shall be the sole owner
,
and the certificate of
registered sectional title shall be issued to and in the name of the
developer who will be entitled to dispose
of or otherwise deal with
such units for his own and exclusive benefit and account
.
/11
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4. The owners shall not be
entitled to refuse to
acknowledge and accept that upon
registration of the sectional plan/s of the aforesaid additional
buildings
their participation quotas will be reviewed
and
adjusted
as provided for in the Sectional Titles Act No 66/1971."
(My underlining).
In the certificates of registered
sectional
titles in respect of each of the 8
units comprised in the
scheme reference was made
inter
alia
to the aforementioned
conditions of sectional title in
the following manner:
"- - and that the said
owner's title to the said section and undivided share in the said
common property is
subject to or shall benefit by
-(i) the
servitudes, other real
/12
12
rights and
conditions
, if
any,
endorsed on the said sectional plan
and the servitudes
referred to in Section 19 of the Sectional Titles Act, 1971; and
(ii) ."
(My underlining).
Accordingly all the sections and
the common property comprised in the scheme were made subject to the
said registered conditions of
sectional title. Moreover, the 14
additional sections to be erected on the common property were
indicated on a sketch plan as a schedule
to the sectional plan.
Although Erlax originally intended
itself to undertake the development of both phases of the scheme it
decided, after the completion
of the first phase development, to
dispose of its ownership of unit No 7 as well as its rights as
developer under sec 18(1) and (8)
to extend the
/13
13
scheme for the second phase
development of the additional
14 units on the common property
(as provided for in the
aforementioned conditions of
sectional title), to a third
party. The latter, however,
requires transfer of the
developer's right of extension to
be effected to it by
registration in a deeds office. In
order to do so Erlax
claims to be entitled in terms of
sec 64(1)
of the
Deeds
Registries Act No 47 of 1937
to a
certificate of registration
of a real right in respect of its
developer's right of extension.
The said
sec 64(1)
reads as
follows:
"Any person who either before
or after the commencement of this Act has transferred land subject to
the reservation of any real
right in his favour (other than a right
to minerals) may on applicatioh in writing to the registrar
accompanied by the title deed
of the land obtain a certificate of
registration of that real
/14
14
right as nearly as practicable in
the prescribed form."
Form Y is the prescribed form.
Since the attitude of the
Registrar of Deeds, Johannesburg, was that Erlax was in the
circumstances not entitled to a certificate
of registration without
the authority of an order of court, Erlax applied for a declaratory
order in the Court
a guo
, citing the following respondents,
viz. the Registrar of Deeds, Johannesburg, as first respondent; The
Body Corporate of Chelsea
Square as second respondent; and the
registered owners of seven of the eight units comprising the scheme
as third to ninth respondents.
The respondents did not oppose the
application and abided the decision of the Court
a quo
save
that the Registrar of Deeds filed a report containing his reasons why
the declaratory order should
/15
15
not be granted.
I
shall in due
course refer to his report. The attitude of the respondents remains
unaltered as regards the present appeal.
The terms of the declaratory order
sought have been set out fully in the reported judgment of the Court
a quo
(pp 263 H to 264 C).
In this Court, Mr
Heher
, on
behalf of
Erlax, directed his argument to
the relief claimed in prayer
1 of the declaratory order, viz. :
"1. . Declaring that the
applicant is entitled to obtain a certificate of registered real
rights under
s 64(1)
of the
Deeds Registries Act 47 of 1937
in
respect of the rights acquired by and reserved to the applicant in
terms of s 18(1) of the Sectional Titles Act 66 of 1971 and
the
sectional title conditions registered in accordance with s 5(3)(d)(i)
of that Act to extend the sectional title scheme
/16
16
for the development known as
'Chelsea Square' by the addition of a further 14 units."
In his report the Registrar of
Deeds made the following relevant remarks in regard to prayer 1 of
the declaratory order:
"2.1 The Sectional Title
Scheme concerned was
registered in terms of the
Sectional Titles Act No 66/1971, which was repealed in its entirety
and replaced by Act 95/1986 with effect
from the 1st of June 1988. In
terms of Section 60(1)(b) of the said Act 95/1986, the right of
extension of a building acquired in
terms of Section 18 of the said
Act 66/1971, shall be completed or exercised in terms of the
provisions of the 1971 Act as if it
has not been so repealed.
/17
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2.2 It is my respectful submission
that a
certificate of real rights cannot
be issued in terms of
Section 64(1)
of the
Deeds Registries Act No
47/1937, as
amended, as no (real) right was reserved on the transfer
of land, as envisaged by the said
Section 64(1).
"
The contents of para 2.1 are
correct and indisputable. The Court
a quo
agreed with the
submission made in para 2.2. The correctness of the said submission,
as accepted by the Court
a quo
, was challenged by Mr
Heher
in this Court.
The first question to be decided
is whether or not the right to extend the scheme to include the
additional 14 units is a real right
capable of registration. Without
embarking upon a jurisprudential discourse regarding the nature of a
real right, it suffices to
say for purposes of this judgment that a
real right consists basically of a legal
/18
18
relationship between a legal
subject (holder) and a legal object or thing (
res
) which
bestows on the holder a direct power or absolute control over the
thing. The content of the absolute control may vary depending
on the
various real rights which may range from full ownership to
jura in
re aliena
and other real rights. "To determine whether a
particular right or condition in respect of land is real and thus
registrable
the courts have developed two requirements, namely -
the intention of the person who
creates the real right (testator or contracting party) must be to
bind not only the present owner
of the land, but also his successors
in title; and
the nature of the right or
condition must be such that registration of it results in a
'subtraction from the dominium' of the land
against which it
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is registered."
(LAWSA, vol 27 s v Things para
46).
It appears clearly from the
introductory portion of the conditions of sectional title that the
intention of Erlax as developer in
creating and imposing them as
burdening the initial 8 units, including unit No 7, was to bind their
owners and successors-in-title
from time to time. That intention was
also manifested in the certificates of registered sectional titles of
the 8 units by the express
reference to the conditions of sectional
title endorsed on the sectional plan. There was accordingly
compliance with the first of
the said two requirements.
There is also compliance with the
second of the aforementioned requirements, since the registration of
the right to extend the scheme
to include the additional
/20
20
14 units resulted in a diminution
of the ownership of each of the initial 8 units in regard to their
undivided shares in the common
property in accordance with their
respective participation quotas as provided for in condition 4 of the
registered conditions of
sectional title. In other words, condition 4
constituted a burden on the common ownership of the initial 8 units,
including unit
No 7.
Hence the first question must be
decided affirmatively, viz. that the right to extend the scheme to
include the additional 14 units,
as provided for in the conditions of
sectional title, is a real right in land which is, in principle,
registrable in a deeds registry.
Moreover, condition 1 of the
conditions of sectional title restricts the owners of the units,
their successors in title and the holders
of sectional mortgage bonds
from withholding their consent to the subsequent development of the
additipnal units
/21
21
by the developer.
The next crucial question is to
determine the nature of the real right to extend the scheme to
include the additional 14 units. Inasmuch
as the real right to extend
the scheme was constituted over the common property of the initial 8
units it follows that the latter,
including unit No 7, are servient
tenements (
praedia servientia
). In whose favour was the real
right as a servitude made? Was it established as a praedial servitude
in favour of unit No 7 as the
dominant tenement (
praedium
dominans
)? Or was it created as a personal servitude in favour of
Erlax as developer?
In the present matter the
following
indicia
militate against the construction of the
real right to extend the scheme as a praedial servitude in favour of
unit No 7 as a dominant
tenement, viz.: 1. No reference to a dominant
tenement was either
/22
22
expressly or impliedly made in the
conditions of sectional title. No unit - not even unit No 7 -was to
be entitled to the right of
extension. On the contrary, the said
conditions were "burdening the sections and common property and
binding the owners from
time to time". 2. It is of the essence
of a praedial servitude that it should be for the economic benefit or
advantage (
praedio utilitas
) of the dominant tenement. D
8.1.15 pr, Huber H R 2.43.9, Van der Keessel ad Gr 2.33.4, Voet
8.4.15 (Gane's translation): "Besides
just as by rule a
servitude is not established for the benefit of any other than the
dominant tenement, so on the other hand such
a servitude is not
correctly granted if it would bring no benefit either in the present
or the future to the dominant tenement".
/23
23
It is, however, apparent from the
very nature of
the real right to extend the
scheme that it does
not confer any economic benefit or
advantage on
any unit as a dominant tenement.
Nor can an intention
be gathered from the conditions of
sectional title
to confer any economic benefit or
advantage on any
unit as a dominant tenement.
In his written supplementary heads
of argument Mr
Heher
contends that the developer's right of
extension is not a personal servitude but a praedial servitude. He
relies on the fact that
the expression "developer" in the
conditions of sectional title should be construed in the same sense
as the word "developer"
in
sec 1
which includes a
developer's "successor-in-title". According to his
contention it could relate to "any successor-in-title"
in
which event "the servitude would be praedial since the identity
of the
/24
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owner is purely incidental to the
land itself, the only claim to the right arising from ownership of
particular land".
This contention, however,
overlooks other relevant provisions of the Sectional Titles Act No 66
of 1971. According to sec 26(3) a
developer has a successor-in-title
where he has alienated in
one transaction the whole of his
interest in the land and the buildings comprised in the scheme
.
That is not the factual position in the present matter where Erlax
has alienated seven of the 8 units of the scheme while it retained
Unit No 7 for itself. Moreover, if Erlax were to dispose of its
ownership of Unit No 7 to a purchaser, as it intends doing, it would
in terms of sec 18(1), read with sec 26(2), thereby cease to have any
share in the common property. Thereupon The Body Corporate
of Chelsea
Square would acguire its right of extension. There is accordingly, in
my judgment, no substance in this contention in
favour
/25
25
of the construction of the
developer's right of extension as a praedial servitude.
It now remains to consider whether
or not the real right to extend the scheme was created as a personal
servitude in favour of Erlax
as developer. In
Willoughby's
Consolidated Co Ltd v Copthall Stores Ltd
,
1913 AD 267
at p 282
INNES J authoritatively described the essential characteristics of a
personal servitude as follows: "From the very
nature of a
personal servitude, the right which it confers is inseparably
attached to the beneficiary.
Res servit personae
. He cannot
transmit it to his heirs, nor can he alienate it; when he dies it
perishes with him (Voet 8.1.4; Louw v Van der Post,
etc.)".
There are in the present matter
indicia
which strongly support the construction that the real
right to extend the scheme was intended to be a personal servitude
/26
26
in favour of Erlax as developer,
viz:-
Condition 2 of the conditions of
sectional title expressly refers to the obligation of "all
persons having an interest in the
sections and the common property
to allow the developer to exercise
his
positive right to
proceed with the development in the manner envisaged herein"
(My underlining).
It is clear from condition 3 of
the said conditions that the owners of the initial 8 units
(including Erlax as owner of No 7) would
qua
owners have no
right to or in any unit comprised in the scheme
of the additional 14 units. The
latter would belong solely to Erlax as developer in whose name the
certificates of sectional title
in respect of them would be issued
and who would be entitled to deal with them "
for his own and
exclusive benefit and
/27
27
account
". (My
underlining). Since Erlax as developer financed the scheme comprising
the initial 8 units for its own benefit and account,
it stands to
reason that Erlax as developer would also finance the second phase
development of the additional 14 units on the common
property for its
own benefit and account. 3. The real right to extend the scheme was
inseparably attached to Erlax
qua
developer of the scheme. It
would accordingly retain this right of extension as long as it
continued to qualify as a developer (See
LAWSA vol 24 s.v. Sectional
Titles and Share Blocks para 297). In order to continue to qualify as
a developer Erlax would have to
retain the ownership of at least one
unit in the scheme, i.e. it would have to remain owner of unit No 7.
Compare secs 18(1) and
26(2).
/28
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In the light of
the aforementioned
considerations
I
am of the view that on a proper
construction
of the conditions of sectional
title the right of extension was created as a personal servitude in
favour of Erlax as developer.
Is the validity of this personal
servitude affected by the legal principle that the holder of a
personal servitude and the owner of
a servient tenement cannot be the
same person, since a person cannot have a servitude over his own
property (
nulli res sua servit
)? See de Groot 2.37.2, 2.39.17;
Van Leeuwen RHR 2.19.6, C F 1.2.14.7; Voet 7.4.3, 8.4.14, 8.6.2. In
the present matter the personal
servitude of Erlax as developer was
constituted over the entire servient land, i.e. the common property
which belongs in undivided
shares to the initial 8 units, for the
purpose of erecting 14 additional sections on it. Since the common
property as
/29
29
servient land
is indivisible among the initial 8 units, it follows that the
personal servitude of Erlax as developer can exist over
the entire
common property as servient land irrespective of the fact that Erlax
is also the owner of unit No 7 which is entitled
to an undivided
share in the common property. In my judgment it cannot therefore be
said in the absence of any subdivision of the
common property that
the personal servitude of Erlax as developer is affected by merger
(
confusio
)
in accordance with the maxim
nulli res
sua servit
. Compare D 8.2.30.1, D
8.3.27
in fine
and Voet 8.6.2 which deal with praedial servitudes.
I
am mindful of the fact that according to
Caepolla (obit 1477) in his authoritative
Tractatus
I
De
Servitutibus tam Urbanorum quam Rusticorum Praediorum
,
1759, cap. 10 nr 1, all servitudes, with the exception of usufruct,
are indivisible. Although the right of extension is a personal
servitude in favour of Erlax as
/30
30
developer it is, however, not a
usufruct, since it does not confer on Erlax the right to use and
enjoy the fruits of the servient
land.
I
have
mentioned
supra
that sec 18(1)
prescribes the procedure to
be followed by a developer in the implementation of his right to
extend an existing development scheme.
The procedure is also referred
to in conditions 1 and 2 pf the registered conditions of sectional
title. The Registrar of Deeds correctly
indicated in para 2.1 of his
report,
supra
,
that sec 60(1) of the new
Sectional Titles Act 95 of 1986
has
preserved a developer's right to extend an existing development
scheme acquired in terms of
sec 18
of Act No 66 of 1971, as well as
the completion of the extension in accordance with the provisions of
Act No 66 of 1971, notwithstanding
the repeal of Act 66 of 1971 with
effect from 1 June 1988.
/31
31
The final question to be decided
is whether or not Erlax is entitled to obtain a certificate of
registered real rights under
sec 64(1)
of the
Deeds Registries Act No
47 of 1937
in respect of its developer's right to extend the existing
scheme by the addition of another 14 units. It is clear from the
aforegoing
that the Registrar of Deeds on 10 September 1985 performed
the following acts of registration
simultaneously
, viz.:-
closed certain entries in the
land register regarding Erf 1514
(sec 8(2)(a))
;
opened a sectional title register
(sec 8(1)(b))
;
registered sectional plan No
SS
171/1985
(sec
8
(1)(a)) on which the conditions of sectional title
imposed
by Erlax as developer in terms of
sec 5(3)(d)(i))
were endorsed, and to which a sketch plan of the 14
additional sections to be erected on the common
/32
32
property was added as a schedule;
and 4. issued to Erlax as developer certificates of registered
sectional title in the prescribed
form in respect of each of the 8
units with their undivided shares in the common property
(sec
8(2)(d))
while a duplicate of each sectional title deed was
incorporated in the sectional title register
(sec 1
s.v. "sectional
title register").
It is also
clear from the conditions of sectional title, as endorsed on the
sectional plan No
SS 171/1985
and as referred to in the certificates
of registered sectional title, that Erlax as developer on 10
September 1985 reserved to itself
a right to extend the
scheme
by an additional 14 units. This reservation of its right to extend
the existing scheme was effected simultaneously with the
opening of
the sectional title issue and the transfer of the 8 units
/33
33
by means of registered sectional
titles. In my judgment Erlax has accordingly complied with the
provisions of
sec 64(1)
of the
Deeds Registries Act No 47 of 1937
.
In the result the appeal succeeds.
Thê following orders are granted:
The order of the Court
a quo
is set aside.
The following order is
substituted for the order of the Court
a quo
:
(i) The applicant is entitled to
obtain a certificate of registered real right under
s 64(1)
of the
Deeds Registries Act 47 of 1937
in respect of its inalienable real
rights acquired by and reserved to the applicant in terms of s 18(1)
of the Sectional Titles Act
66 of 1971 and the sectional title
conditions
/34
34
registered in accordance with s
5(3)(d)(i) of that Act to extend the sectional title scheme for the
development known as 'Chelsea
Square' by the addition of a further 14
units. (ii) The Registrar of Deeds, Johannesburg, is
authorised and directed upon
application by the applicant to confer on it a certificate of
registration of its inalienable real right
referred to in (i) above.
C.P. JOUBERT, JA FRIEDMAN J A
concurred.
IN THE SUPREME COURT OF SOUTH
AFRICA (APPELLATE DIVISION)
In the matter between:
ERLAX PROPERTIES (PTY)
LTD
Appellant
and
THE REGISTRAR OF DEEDS,
JOHANNESBURG
First
Respondent
THE BODY CORPORATE OF CHELSEA
SQUARE
Second
Respondent
FRANK JOHN
McCLEMENT
Third
Respondent
RENA MARGARET
MATHEWS
Fourth
Respondent
ANDRE
EDWARD BEDDY and
MARGARET JANET
BEDDY
Fifth
Respondent
YOLANDE STELLA THERESE
COMTURSI
Sixth
Respondent
ELIN-MARLISE
PRINZEN
Seventh
Respondent
ALFRED
ZIMMERMAN
Eighth
Respondent
IAN BABICEANU
Ninth
Respondent
CORAM:
JOUBERT, E M
GROSSKOPF, FRIEDMAN, NIENABER, JJA et KRIEGLER AJA
HEARD:
21 May 1991
DELIVERED:
29 November 1991
JUDGMENT E M GROSSKOPF, JA
2
I
have
read the judgment of JOUBERT JA and agree with
his
main conclusions, but do not consider that they fully answer
the
case presented by the appellant.
I
therefore find it necessary to add some
further reasoning to that set out in my brother's judgment.
I
agree
with JOUBERT JA that the right to extend the scheme so as to include
the additional 14 units, as provided for in the conditions
of
sectional title, is a real right in land which is, in principle,
registrable in a deeds registry.
I
also
agree that section 18(1) of the old Act,
read with section 26(3),
precludes the
appellant in the present case from alienating his rights as
developer. In terms of these provisions he can do no more
than
dispose of his title to unit no. 7. If he were to do this, the body
corporate would in terms of section 18(1) acquire the rights
of
extension granted by that section. The effect of these conclusions is
that the appellant would not be able in law to dispose of
its rights
of extension as it proposes doing. Any order which this court may
grant pursuant to the old Act could
3
accordingly not provide the
benefit which the appellant sought
to obtain by instituting the
present proceedings.
The conclusion that the old Act
does not avail the
appellant does not, however,
conclude the matter. The appellant
also sought a further declaratory
order in the following terms:
"2. Declaring that the rights
acquired by and
reserved to the Applicant in terms
of section 18(1) of the Sectional Titles Act, 1971 and the sectional
title conditions registered
in accordance with section 5(3)(d)(i) of
that Act to extend the sectional title scheme for the development
known as Chelsea Square
by the addition of a further fourteen units
are, by reason of the terms of
section 60(9)
of the
Sectional Titles
Act, 1986
, deemed to have been reserved by the Applicant to itself in
terms of
section 25(1)
of the last mentioned Act."
The background to this prayer is
that the new Act
introduced, in its section 25,
much wider rights of extension.
Section 25(1) provides
inter
alia
as follows:
"'A developer may ... in his
application for the registration of a sectional plan, reserve, in a
condition imposed in terms of
section 11 (2), the right to erect and
complete from time to time, but within a period stipulated in such
condition, for his personal
4
account -
(a) a further building or
buildings; or
(b) a horizontal extension of an
existing
building; or
(c) a vertical extension of an
existing building,
on a specified part of the common property, and
to
divide such building or buildings into a section or
sections
and common property and to confer the right
of exclusive use over parts of
such common property upon the owner or owners of one or more of such
sections."
In terms of section 12(1)(e) the
registrar of deeds is obliged to issue the developer a certificate of
real right in respect of any
reservation made by him in terms of
section 25(1), subject to any mortage bond registered against the
title deed of the land.
A right reserved in terms of
section 25(1) in respect of which a certificate of real right has
been issued is for all purposes to
be deemed to be a right to urban
immovable property which admits of being mortgaged and may be
transferred by the registration of
a notarial deed of cession
(section 25(4)). Moreover, a right reserved in terms of section 25(1)
may be exercised by the developer
or his successor in title thereto,
5
even though the developer or his
successor-in-title, as the case may be, has no other interest in the
common property (section 25(5)).
Prom the above
provisions of section 25 of the new Act
it
is apparent that, had the appellant's right of extension derived from
section 25(1) of the new Act, the appellant would have been
entitled
effectively to alienate it in the manner in which it wishes. The
relief claimed in prayer 2 of the Notice of Motion, which
I
have quoted above, in effect seeks to
enable the appellant to enjoy the benefits of the new Act. Whether
this relief should be granted
depends on the construction of certain
of the provisions of section 60 of the new Act, to which
I
now turn.
The relevant subsections are
subsections (1) and (9).
They read as follows:
"(1) Notwithstanding the
repeal of the Sectional Titles Act, 1971 (Act No. 66 of 1971), by
section 59 of this Act -
(a) the registration of a
sectional plan and the opening of a sectional title register in
6
respect of a development scheme
which was prior to the date of coming into operation of this Act (in
this section referred to as the
commencement date) already approved
by a local authority under the provisions of the Sectional Titles
Act, 1971; or (b) a right of
extension of a building acquired in
terms of section 18 of the Sectional Titles Act, 1971, shall be
completed or exercised in terms
of the provisions of the Sectional
Titles Act, 1971, as if it has not been so repealed: Provided that
nothing in this Act shall prevent
-
(a) the registration of a
sectional plan and the
opening of a sectional title register;
(b) " the acquisition of a
real right of extension;
or
(c) the exercising of a right of
extension,
in terms of the provisions of this Act.
(9) Subject to the provisions of
this section, ahything done under a provision of a law repealed by
section 59, shall be deemed to
have been done under the corresponding
provision of this Act."
Prayer 2 in the Notice of Motion
expressly relies on
subsection (9) and it will be
convenient to deal first with that
provision. Subsection (9) is a
blanket savings provision
applying generally to anything
done under a provision of a law
repealed by section 59. This
covers the old Act and all its
7
amending acts.
The appellant seeks to invoke
subsection (9) as follows. It is clear that the registration of the
rights contained in paragraph 1
of the Condition of Sectional Title
was brought about in terms of section 5(3)(d)(i) read with section
18(1) of the old Act. The
appellant contends that the new Act
contains provisions corresponding to the last-mentioned sections. In
particular reliance is placed
on sections 11(2), 11(3)(b), 25(1) and
25(9) of the new Act. Pursuant to section 60(9), the appellant says,
these sections must now
define its right of extension. The appellant
thus argues that section 60(9) has imbued its right of extension
under the old Act with
the content and attributes of a right of
extension under the new Act, and, in particular, with the power to
alienate the right of
extension under section 25(4). In considering
this argument the essential question, it seems to me, is whether the
two sections providing
for rights of extension (viz. section 18(1) in
the old Act, and section 25 in the new Act) can be regarded as
8
corresponding provisions for the
purpose of section 60(9) of the
new Act.
The use of the word
"corresponding" in savings
provisions like the present is
very common. Clearly it does not
require that the provisions to
which it is sought to be applied
must be identical. An earlier
provision may "correspond" with
a later one even though there are
some differences between them.
See, e.g.,
Oranieville
Dorpsbestuur v. Gulliver and Others
1970(1) SA 554 (O) at p. 556 E-H
and
Winter v. Ministry of
Transport
1972 NZLR 539
at
p. 541 lines 10 to 40. Whether there
is a correspondence or not would
depend on the nature and degree
of the differences. As was stated
by the New Zealand Court of
Appeal in
Winter's
case,
supra
, at p. 540 lines 23 to 28:
"We read 'corresponding' ...
as including a new section dealing with the same matter as the old
one, in a manner or with a result
not so far different from the old
as to strain the accepted meaning of the word 'corresponding' as
given in the
Shorter Oxford English
Dictionary
-
'answering to in character and function; similar to'".
In the present case there are vast
differences between
9
section 18(1)
of the old Act and section 25 of the new Act.
I
do not propose enumerating all of them. The
basic difference seems to be the following. Section 18(1) of the old
Act allowed the developer
himself a limited right of extension with
the consent of all the owners of sections and the holders of
sectional mortage bonds. He
was not, however, entitled to alienate
his right of extension otherwise than by alienating the whole of his
interest in the scheme
in one transaction, and when he ceased to have
a share in the common property, the right of extension passed to the
body corporate.
Section 25(1) of the new Act, on the other hand,
permits the developer to reserve a right of extension with a wider
ambit than that
allowed by section 18(1) of the old Act, and without
the consent of any other section owner. He may alienate his right
freely - the
body corporate acquires a right of extension only if the
developer did not reserve a right for himself, or if his right has
lapsed
for any reason (section 25(6)). The relative disadvantage in
which the body corporate is placed by section 25 as against its
10
position under section 18(1)
represents, in my view, a substantial difference between the two
sections.
In line with the different nature
of the rights of extension granted by the respective provisions,
different procedures were also
laid down for their creation and
exercise. Compare, for instance, the procedure laid down by section
25(2) of the new Act with that
set out in section 18(1) of the old
Act.
I
am
accordingly of the view that although both
sections
deal with rights of extension, the nature of the rights,
and
the manner of their creation and exercise, are so different
that
the respective provisions cannot be regarded as "corresponding"
for the purpose of section 60(9) of the new Act.
This conclusion
is,
I
think,
fortified by the content
and structure of
section 60 of the new Act. Subsections (1) to (8) contain a number of
specific savings and transitional
provisions
necessitated by the repeal of the old Act. Among these are the
provisions of subsection (1) dealing with,
inter
alia
, rights of extension. The fact
that these specific
n
provisions were enacted is a clear
indication, in my view, that the legislature did not regard the
general provisions of subsection
(9) as applicable to this topic.
In the
alternative the appellant argued that it was entitled under section
60(1) of the new Act to the relief asked for in prayer
2 of the
Notice of Motion. For present purposes section 60(1) has two main
features. It firstly provides that a right of extension
of a building
acquired in terms of section
18 of the old
Act shall be completed or exercised in terms of the
old
Act as if it has not been repealed. It is pursuant to this provision
that the appellant is still in full possession of the
rights
granted to it by the old Act. To this provision provisos
are
added, laying down,
inter alia
,
that nothing contained in the
new Act would
prevent the acguisition of a real right of extension or the
exercising of a right of extension in terms of the provisions
of the
new Act. In the ordinary process of interpretation the savings
provision and the provisos must be reconciled. As a matter
of
language and logic this can,
I
12
consider, be done as foilows. The
savings provision lays down that a right of extension acquired under
the old Act must be completed
or exercised under the old Act. The
proviso lays down that this provision does not
prevent
the
acquisition of a real right of extension, or the exercising of a
right of extension, in terms of the new Act. The preservation
of
rights of extension acquired under the old Act therefore does not
bestow
any rights under the new Act: it merely does not
prevent
the acquisition or exercising of rights in terms of
the new Act. If a person is entitled to acquire a real right of
extension or
to exercise a right of extension in terms of the new
Act, the mere fact that he or somebody else had previously acquired a
right
of extension under the old Act (which right is preserved by
section 60 of the new Act) would accordingly not, by itself, stand in
his way. However, in order to acguire the real right of extension, or
to exercise a right of extension, the person claiming such
right must
show that he is entitled thereto
under the new Act
. If he can
show this, it becomes immaterial to his acquisition or
13
exercise of rights under the new
Act that rights under the old Act are preserved by section 60(1). Of
course, if there is a repugnancy
between rights claimed under the new
Act and those still in force under the old Act, existing rights would
clearly prevail, and to
that extent rights under the new Act may not
be available. However, the provisos to subsection (1) would in my
view cater for cases
where a right of extension acquired under the
old Act has lapsed, or has been abandoned, or is not inconsistent
with rights for which
the new Act makes provision. In the present
case the appellant has acquired rights under the old Act. Forthe
reasons stated above
this would not by itself prevent its acquiring
or exercising rights under the new Act. The appellant does not,
however, lay claim
to any rights under the new Act. It claims to be
entitled to exercise its rights under the old Act as if they had been
bestowed under
the new Act. Although the appellant has not reserved a
right of extension under section 25(1) of the new Act, it wishes to
exercise
the rights of a person who has reserved such a right,
1 4
and, in particular, to exercise
the power of alienation granted
by section
25(4). But, as
I
have
already indicated, the provisos
to section 60(1) do not change or
enlarge rights existing under
the old Act. Their effect is
purely negative - they ensure that
rights granted by the new Act
should not be thought to be
diminished by the preservation of
rights which had accrued under
the old Act. It follows that in my
view section 60(1) of the new
Act is of no assistance to the
appellant.
To sum up:
I
agree that the appellant had a right of
extension in terms of section
18(1) of the old Act, and that this
right is in principle capable of
registration. Moreover, whether
or not this right can properly be
described as a personal
servitude,
I
agree that it is not transferable. In
addition
I
consider that neither section
60(9) nor section 60(1) of the new
Act serves to extend the right
granted to the appellant by the
old Act.
I
consequently concur in the order granted by
JOUBERT
JA.
JOUBERT, JA
FRIEDMAN,
JA
NIENABER,
JA CONCUR
KRIEGLER, AJA
E
M
GROSSKOPF, JA