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THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA MAIN SEAT
APPEAL NO: A09 / 2025
CASE NO: 1501 / 2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE 22 August 2025
SIGNATURE
In the matter between:
JOHN DANIEL KESTELL SWANEPOEL APPELLANT
And
TORSTEN EDWIN FJASTAD FIRST RESPONDENT
CATHERINE FJASTAD SECOND RESPONDENT
_________________________________________________________________
J U D G M E N T
_________________________________________________________________
RATSHIBVUMO DJP:
Delivered: This judgment was handed down electronically by circulation to the part ies'
representatives by email. Date and time for the hand-down is deemed to be 22 August
2025 at 09H00.
[1] Introduction.
The two respondents were the applicants in a case brought against the Registrar of
Deeds, Mpumalanga, along with ten other respondents. Among these respondents
was the Appellant, who was cited as the ninth respondent. Only the Appellant
opposed the application. On 06 May 2024, Gumede AJ of this Division (the court a
quo) delivered a judgment in which she issued the following order:
“1. The first respondent is directed to arrange for and to allow the filing in the
relevant sectional title d file replacement plans which were submitted to it in
terms of section 25 (2A) of the Sectional Titles Act read with Regulation 25 of
Sectional Titles Regulations published in terms of th is Act, as replacement of
the plans initially filed in terms of section 25(2 )of the Act when the sectional
title register was opened in respect of the sectional title scheme known as
Hulala Lakeview SS728/2000 (the Scheme).
2. The first respondent is directed to uplift and expunge any caveat noted
against the Certificate of Real Right SK6991/2000S and/or Notarial Deed of
Cession of Real Right SK 08222/2003S.
3. The second respondent , the body corporate of Hulala Lakeview Sectional
Title Scheme, is ordered to sign all documents and to do all things required by
the Registrar of Deeds to give effect to order 1 above.
4. It is declared that the applicants are , by virtue of a notarial deed of session
of real rights SK 08222/2003S, the lawful registered holders of the real right to
extend the Scheme, originally reserved to the developer of the Scheme in
terms of section 25(1)(a) of the Act and initially held by the developer by virtue
of Certificate of Real Right SK6991/2000S.
5. It is declared that the real right of extension referenced to in order 4 above,
5. It is declared that the real right of extension referenced to in order 4 above,
remains ext ant, valid and enforceable , in accordance with the certificate of
reservation.
6. The ninth respondent is ordered to pay the costs of opposition to this
application.
[2] The Appellant now appeals against the above order. The appeal is with the leave
of the court a quo. The Respondents oppose the appeal.
[3] Background.
As the court a quo observed, the Respondents are the joint registered holders of a
real right of extension in respect of the Hulala Lakeview Sectional Title Scheme,
no. SS728/2000, which right was acquired by way of cession from the original
developer of the Scheme. The developer had reserved the right of extension to
construct an additional dwelling under section 25(1) of the Sectional Titles Act, no.
95 of 1986 (the Act), when the scheme was registered in 2000. It is important to
note at this stage that t he Appellant denies that the developer validly ceded its real
right of extension to the Respondents.
[4] The Sectional Plan for Hulala Lakeview Sectional Title Scheme was registered on
19 December 2000. On the same date, a Certificate of Real Right of Extension was
issued by the Registrar of Deeds, Pretoria. The said certificate makes reference to
plans that should be submitted under section 2(2) of the Act, and kept in the file
held by the Registrar of Deeds upon its issuance. These plans could not be located
in the Registrar’s file. Their absence led the Respondent s to launch an application
for the replacement of lost or destroyed plans in terms of Regulation 25A.
[5] The Registrar’s Office received several objections to this application. The Appellant
was among those who raised objections. His reasons for the objection are
discussed under the grounds of appeal. In light of the objections raised, the
Registrar decided to record a caveat against the Certificate of Real Right
SK6991/2000S and/or the Notarial Deed of Cession of Real Right SK
08222/2003S, preventing any action until the issue regarding the missing plans has
been resolved. This prompted the Respondents to fil e an application seeking the
relief granted by the court a quo.
[6] Grounds of appeal.
relief granted by the court a quo.
[6] Grounds of appeal.
7.1 The Appellant submitted in the application for leave to appeal that the court a
quo erred in finding that the Real Right of Extension relied upon by the
Respondents was validly reserved in terms of section 25 of the Act ,
considering the following points:
(a) The Certificate of Real Right does not specify the type of building, the
specified part of the common property on which it may be constructed, or
even the Sectional Scheme to which it refers. Consequently, the
Certificate of Real Right of extension lacks any substantive content and
has no legal effect.
(b) There is no evidence that the application for the Reservation of Real
Right of extension was accompanied by the plans, schedules, and
particulars required under the provisions of section 25(2)(a), (b), (c), or
(d).
(c) The Certificate of Real Right of Extension does not constitute prima facie
proof that the plans , schedules and particulars required under section
25(2) of the Act were filed.
(d) If the plans are not in the file, it does not necessarily mean they were
misplaced or destroyed as considered in regulation 25A of the Act,
thereby entitling the Respondents to submit an application for the
replacement of the plans.
(e) The respondents did not provide secondary evidence to demonstrate that
the documents were ever prepared and filed with the Registrar.
(f) The respondents do not claim that the replacement plans closely reflect
the lost or destroyed documentation, as required under regulation 25A(5).
7.2 It was further submitted that the court a quo erred when it found that the
application for the filing of the replacement documentation under regulation
25A of the Act was authorised by the Body Corporate. In this regard, it was
submitted that the court a quo erred by failing to consider the following:
(a) In terms of the provision of Regulation 25A(1), the application for the
replacement of documentation referred to in section 25 (2) must be
submitted by the Body Corporate.
(b) The application submitted to the Deeds Registrar was not signed by the
chairperson or any other person authorised by the Body Corporate.
chairperson or any other person authorised by the Body Corporate.
(c) The Body Corporate did not pass any resolution to introduce or endorse
such a resolution.
7.3 It was further submitted that the court a quo erred in failing to find that no real
right of extension had been reserved concerning the specific portion of the
common property adjacent to the appellant’s dwelling, as the certificate of
Real Right SK6991/2000S reserved in favour of Hulala Shareblock Company
Limited does not specify the part of the common property subject to the Real
Right of Extension.
[8] The law.
Section 25(1) & (2) of the Act provides,
“(1) A developer may, subject to the provisions of section 4 (2), in his or her
application for the registration of a sectional plan, reserve, in a condition
imposed in terms of section 11 (2), the right to erect, complete or include from
time to time, but within a period stipulated in such condition or such extended
period as may be agreed upon (by unanimous resolution of the body
corporate and with the consent of the bondholders existing on the date of the
taking of the unanimous resolution, which resolution and consent must be
obtained by the notary and filed in his or her protocol) prior to the expiry of the
stipulated period, by way of a bilateral notarial deed, for his or her personal
account… a building or buildings… 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 sections, or
to delineate exclusive use areas on or in specified parts of the land and
buildings in terms of section 5 (3) (f) and to confer the right of exclusive use
over such areas upon the owner or owners of one or more sections.
(2) In the event of a reservation in terms of subsection (1), the application for
the registration of the sectional plan shall, in addition to the documents
referred to in section 11 (3), be accompanied by
(a) a plan to scale of the building or buildings and on which the part of the
(a) a plan to scale of the building or buildings and on which the part of the
common property affected by the reservation; the siting, height and
coverage of all buildings; the entrances and exits to the land; the building
restriction areas, if any; the parking areas; and the typical elevation
treatment of all buildings, are indicated;
(b) a plan to scale showing the manner in which the building or buildings are
to be divided into a section or sections and exclusive use areas , or the
manner in which the common property is to be made subject to the rights
of exclusive use areas only;
(c) a schedule indicating the estimated participation quotas of all the sections
in the scheme after such section or sections have been added to the
scheme;
(d) particulars of any substantial difference between the materials to be used
in the construction of the building or buildings and those used in the
construction of the existing building or buildings;
(e) …
(f) the certificate of real right which is to be issued in terms of section 12
(1) (e); and
(g) such other documents and particulars as may be prescribed.
[9] Regulation 25A of the Sectional Titles Regulations provides,
“25A Replacement of documentation referred to in section 25(2)
(1) A registrar of deeds must, if any of the documentation referred to in
section 25(2)(a), (b), (c), (d) or (g) of the Act have been lost or destroyed,
on written application by the body corporate or if a body corporate has
not been established, on written application by the developer,
accompanied by replacement documentation, arrange for such
replacement documentation to be filed in the relevant sectional title file.
…
(5) The replacement documentation shall be as nearly as possible a
reflection of the lost or destroyed documentation and shall take the place
of the lost or destroyed documentation…”
[10] Discussion.
The court a quo approached the Respondents’ application on the assumption that
an application had been lodged with the Deeds Registrar per Regulation 25A. It
also accepted at face value that “the certificate of real right of extension which the
Registrar of Deeds signed is a prima facie proof that the plans were indeed filed as
stated in the certificate.”1 Furthermore, it appears that the court a quo accepted the
version put forward by the First Respondent that he had submitted the building
plans to his conveyancer. This aspect was, however, vehemently disputed by the
Appellant.
[11] Upon scrutinising the application form submitted in compliance with Regulation 25A
by the Respondents, it becomes evident that no application was lodged with the
Deeds Registrar by the Body Corporate. 2 From the form attached to the
application, it is unclear who the applicant was , as the space for the applicant's
name was left blank. While the names were omitted, it appears the applicant was
meant to sign in “his capacity as Chairperson of Hulala Lakeview Body Corporate
(the Chairperson).” The portion for the signature, as well as that for the witnesses,
and the place where the document was meant to be signed, remained blank.
[12] In an attempt to declare a dispute over who lodged the application with the Deeds
Registrar, the Appellant provided email correspondence between his legal
representative and the Chairperson. In the emails, the Chairperson denied having
authorised the application for the replacement documents. He also stated that he
could not have approved it, as the matter had not yet been presented before the
Body Corporate for voting. The court a quo held that since the First Respondent
had email correspondence from the legal representative of the Body Corporate
suggesting that the application would be approved by the client (Body Corporate),
this was sufficient authorisation to deem the application to have been approved by
the Body Corporate.
[13] Following the Plascon -Evans rule, where disputes of fact arise from affidavits in
motion proceedings, a final order may only be granted if the facts stated in the
applicant's affidavits, which the respondent has admitted, along with the facts
alleged by the respondent, justify such an order. It may differ if the respondent's
alleged by the respondent, justify such an order. It may differ if the respondent's
version involves bald or uncreditworthy denials, raises fictitious disputes of fact, is
1 See paragraph 13 of the court a quo’s judgment.
2 See Annexure FA5 attached to the founding affidavit.
implausible, far-fetched, or so clearly untenable that the court is justified in rejecting
them based solely on the papers.3
[14] The dispute over whether the Body Corporate submitted the application should
have been decided in favour of the Appellant’s version. The order sought by the
Respondents could only be granted if the facts stated in the applicant's affidavits
justify such an order, despite the dispute. The Appellant’s version, which should
have prevailed, asserts that the Body Corporate did not authorise the application
for replacement documents. The court a quo’s failure to determine this dispute in
favour of the Appellant’s version amounts to a misdirection, which entitles this
Court to intervene with the outcome.
[15] Moreover, even if it were assumed that the Body Corporate did authorise the
application with the Deeds Registrar, Regulation 25A requires more than just
authorisation for a valid application. The application to the Deeds Registrar must be
made by the Body Corporate, which must have completed its own required process
beforehand. The application form attached to the founding affidavit is simply
incomplete and unsigned. This falls short of the requirement as per Regulation
25A.
[16] The Appellant further contests the court a quo’s judgment on the ground that there
was no evidence showing that the documents meant to be replaced were ever
submitted previously. Regulation 25A is intended to cover building plans that were
submitted but later got lost or destroyed. It was not designed to address the
submission of new documents where they had not been previously submitted.
Although the First Respondent claimed he had submitted the plans to the
conveyancer and that he discovered they were missing from the Registrar of
Deeds in 2016 when he attempted to sell the Real Right of Extension to a third
party, this version was challenged by the Appellant.
3 See National Director of Public Prosecutions v Zuma supra, at para 26.
[17] The Appellant disputed this “discovery” based on the correspondence exchange d
between the former owner of Unit […] and the First Respondent. In the
correspondence, dating from 10 April 2014, the previous owner wrote,
“I am a trustee of the Jolad Trust created by my late husband and the trust is
in the process of selling unit no 7. We seem to have a problem with the real
right of extension for your plot . Apparently, there should be some sort of a
plan for a building for the plot, which should have been lodged with the
deeds office. We have exhausted all avenues and have been unable to find
anything. Do you have any recollection when you purchased the plot from
the Berlin’s, if any plans were given or shown to you at the time of
purchase? I really appreciate any light or information that you might be able
to give me.”
[18] In a response dated 11 April 2014 , the First Respondent stated, “[W]e have never
known of any plan for a house on our Unit […]. We only know that it is a plot
between Unit […] and […].” In two other emails written in March 2014 , when the
First Respondent was being questioned over the same subject, he had responded
as follows,
“There are no plans. Plans have never been made, and therefore nothing has
been submitted.” [03 March 2014]. “ Good day. To my knowledge, of myself
and my actions, no plans have been submitted . No architect has been
engaged; perhaps a previous owner may have. We have not .” [17 March
2014].
[19] In light of th e response from the First Respondent , the Appellant decided to
purchase Unit 7. The email correspondence between the First Respondent and the
former owner of Unit 7 is undisputed. The Appellant was, therefore, shocked to
learn from the application filed by the Respondents with the Deeds Registrar that
there would now be a structure near his unit following the application for
replacement of plans.
[20] The court a quo's conclusion that the issuance of a certificate of real right of
[20] The court a quo's conclusion that the issuance of a certificate of real right of
extension by the Registrar constitutes prima facie proof that the plans were filed as
stated therein should be considered in conjunction with the email correspondence
from the First Respondent above. After researching practice s in various deeds
offices, t he author, CG Van der Merwe , noted in her book, Sectional Titles , “ it
frequently happens that the documents as provided for in section 25(2) are not
lodged with the opening of the sectional title register, or are subsequently lodged or
destroyed.”4 [my emphasis]. The learned author’s observation suggests that the
absence of the plans in the register, owing to the plans not having been filed when
opening the sectional title register, is common in the Deeds Office.
[21] Further considerations on this aspect are that the Respondents did not attach any
copy of the original plans that were initially lodged, if there was any lodgement. The
First Respondent was aware, before launching the Regulation 25A application with
the Deeds Registrar, that the existence of building plans was a contentious issue
raised by the Appellant before deciding to purchase Unit 7. He made no effort to
seek assistance from Ms. Middleton, the conveyancer through whom he claimed to
have submitted the plans, to provide him with the information she still had in her
possession. He did not even seek a confirmatory affidavit.
[22] As Van der Merwe noted, 5 to get approval of the building plans, the developer was
expected to appoint architects, engineers and quantity surveyors to prepare them.
If these experts were appointed in this case, their details were not provided, and no
documentation from them was submitted. For this reason, the Respondents were
unable to claim that the replacement plans were as close as possible a reflection of
the “lost or destroyed” documentation as required by Regulation 25A(5).
[23] There is , therefore, an alternative explanation for the absence of plans from the
register other than that they might have been lost. The email correspondence
between the First Respondent and the former owner of Unit 7 supports this
between the First Respondent and the former owner of Unit 7 supports this
assertion. On this ground, I am of the view that the court a quo misdirected itself by
concluding that the issuing of a certificate was a prima facie proof that the plans
could be lost or destroyed. The evidence presented by the litigants does not
support that finding. This finding entitles this Court to interfere with the order of the
court a quo.
4 Sectional Titles, Vol 1 para 12-23.
5 Supra at 12-21.
[24] In light of the two grounds mentioned above that support the upholding of the
appeal, it remains unnecessary to determine the further grounds of appeal,
particularly, whether the reservation of real right extension was valid , in view of the
application having not identified the portion of the common property in respect of
which the common property was so reserved. The determination of this aspect
would have no impact on the outcome of this appeal.
[25] The Order:
For the reasons above, the following order is made:
26.1 The appeal is upheld with costs.
26.2 The order of the court a quo is hereby set aside and replaced with the
following:
26.1.1 The application is dismissed with costs.
TV RATSHIBVUMO
DEPUTY JUDGE PRESIDENT
I agree.
S MSIBI
ACTING JUDGE OF THE HIGH COURT
I agree.
MB MADAVHA
ACTING JUDGE OF THE HIGH COURT
FOR THE APPELLANT: MR. R SPOOR
INSTRUCTED BY: RICHARD SPOOR ATTORNEYS
C/O CHRISTO SMITH INC
ATTORNEYS
MBOMBELA
FOR THE RESPONDENT: ADV. GF PORTEOUS
INSTRUCTED BY: PIETER SWANEPOEL ATTORNEYS
MBOMBELA
DATE OF HEARING: 08 AUGUST 2025
DATE OF JUDGMENT: 22 AUGUST 2025