SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
23/3/2026 _____________________
DATE SIGNATURE
CASE NO.: 136811/2024
In the matter between:-
PRETORIA EDUCATIONAL CENTRE (PTY) LTD Applicant
v
CITY OF TSHWANE METROPOLITAN MUNICIPALITY First Respondent
REGISTRAR OF DEEDS OFFICE Second Respondent
Heard on: 24 February 2026
Delivered: 23 March 2026 - This judgment was handed down electronically by
circulation to the parties' representatives by email, by being uploaded to
the CaseLines system of the GD and by release to SAFLII. The date and
time for hand-down is deemed to be 14:00 on 23 March 2026.
ORDER
___________________________________________________________________
It is ordered:
1. The first respondent is ordered to within 8 (eight) months from the rezoning,
consolidation and notarial tying of the undermentioned immovable properties (“the
immovable properties”), provide the applicant with the approved as–built, building
plans (“ the building pla ns”), in respect of all structures on the immovable
properties, sold by first respondent to applicant:
1.1. Portion 9 of the Farm Prinshof 349 J.R.;
1.2. Portion 30 of the Farm Prinshof 349 J.R.;
1.3. Remaining extent of Portion 1 of Erf 5[...], Arcadia;
1.4. Portion 2 of Erf 5[...], Arcadia;
1.5. Remaining extent of Erf 9[...], Arcadia.
2. That applicant’s agents and representatives are authorised to make application in
terms of the relevant laws and statutes of the Republic of South Africa, for the
rezoning, consolidation and notarial tying of the immovable properties, and once
submitted to the first respondent they are to be completed within 1 8 months of
receipt of the applicant’s application.
3. It is declared that:
3.1. applicant is not, and cannot, be held liable to move or o therwise legalise
the built over sewerage line, traversing the immovable properties;
3.2. first respondent is to within 8 (eight) months from date of this order, take
all steps necessary to register a servitude in respect of the sewerage line
referred to in paragraph 3.1 supra. Such servitude to contain the standard
restrictive conditions as are normal in circumstances of this nature
wherein the first respondent has built over the sewerage line. Such
servitude is to be registered, and be in line with, the building structures as
they currently exist on the propert ies. The registration of the servitude
may not impede the approval of the building plans.
4. The first respondent is ordered to, 8 (eight) months from the approval of the
building plans, or at least 18 months from the granting of the order, take all the
necessary steps to provide applicant with valid occupational certificates, for all
structures erected and situated on the immovable properties as well as signed-off
and approved Site Development Plan (“SDP”) for the immovable properties.
5. Pending the final execution of the orders supra, the first respondent is prohibited
from taking any steps of whatsoever nature against applicant, in respect of the
non-compliance and/or violation of any legislation that this order seeks to address
and remedy.
6. The first respondent is ordered to pay the cost of the application, including cost of
two counsel on Scale C.
JUDGMENT
___________________________________________________________________
KOOVERJIE J
THE APPLICATION
[1] The applicant, Pretoria Educational Centre, seeks both mandatory and
interdictory relief in this application. It requests the City of Tshwane Metropolitan
Municipality (“the City”) to do all things necessary so that the applicant’s
occupancy of the properties are “legalized” and further that the City be interdicted
to take any steps as a result of the non-compliance with the relevant legislative
prescripts.
[2] The five properties located in the central business district of the City measuring
approximately 8761m², were sold to the applicant for an amount of R2.5 million
(“the properties”).
[3] The applicant contends that the purpose of this application has always been to
legalize its occupancy of the properties which the City had failed to do whilst it
was the owner.1
1 The relief initially crafted in the notice of motion was:
1. That First Respondent be, and is hereby ordered to, within six (6) months from the rezoning,
consolidation and notarial tying referred to in Prayer 2 infra, provide Applicant with approved as-built
building plans (“the building plans”), in respect of all structures erected on the undermentioned
immovable properties (“the immovable properties”), sold by First Respondent to Applicant:
1.1 Portion 9 of the Farm Prinshof 349 J.R.;
1.2 Portion 30 of the Farm Prinshof 349 J.R.;
1.3 Remaining extent of Portion 1 of Erf 5[...], Arcadia;
1.4 Portion 2 of Erf 5[...], Arcadia;
1.5 Remaining extent of Erf 9[...], Arcadia.
2. The applicant’s agent and representative, i.e SJA Town and Regional planners and Jobel Services, be and
are hereby authorised to make application in terms of the relevant laws and statues and the Republic of
South Africa for:
2.1. The rectification of the zoning and/or rezoning of Portion 2 of Erf 5[...], Arcadia and the Remaining
Extent of Portion 1 of Erf 5[...], Arcadia from Residential 4 zoning, to an Educational Zoning.
2.2. The rezoning of Portions 9 and 30 of the Parm Prinshof No. 349 JR, from a Municipal Zoning to an
Educational Zoning.
2.3. The subsequent consolidation of Portion 2 of EF5[...], Arcadia, and the Remaining Extent of Portion 1
of Erf 5[...], Arcadia, with Remaining Extent of Erf 9[...], Arcadia.
2.4. The notarial tying of the immovable properties referred to in Prayers 2.2 and 2.3 supra.
2.5. The above applications, once submitted by the City of Tshwane Metropolitan Municipality, are to be
completed within 12 months.
3. That it be declared that:
3..1.1 Applicant is not and cannot be held liable to move otherwise legalise the built over sewerage line
transversing the abovementioned properties;
3.1.2 First Respondent is to, within Four (4) months from date of this order, take all steps
necessary to register a servitude in favour of itself (if required) , In respect of the
sewerage line referred to in Prayer 3.1.1 supra. Class Such servitude to contain the
standard restrictive conditions as are normal in circumstances of this nature wherein the
municipality has built over the sewage line. Such servitude, to be registered, to take into
consideration, and to be in line with , the building structures as they currently exist on
the properties. The registration of this servitude may not impede the approval of the
building plans.
4. The First Respondent and is hereby ordered to, four months from the approval of the building plans , or
[4] The City however argued that the true reason behind the application was to cause
the City to incur the costs of preparing and approving the as-built building plans
as well as the costs involved for the relocating and rerouting the sewerage line
that currently traverses over the properties. Ultimately it is about the reduction in
the purchase price. The applicant, however, demonstrates the papers that this is
not the case.
CURRENT RELIEF SOUGHT
[5] The applicant no longer seeks relief directing the City to register the properties in
the applicant’s name. By the time this matter was heard, the registration of the
properties in the applicant’s name had taken effect. I was advised that the
registration of the property occurred around October 2025.
[6] The applicant also does not seek relief in terms of prayers 2.1 to 2.4 as it accepts
that by virtue of the sale agreement and now that it has become the owner of the
properties, it is responsible for the rezoning, consolidation as well as a notarial
latest within eighteen (18) months from the date of granting this order, take all steps necessary to provide
Applicant with valid occupation certificates , for all structures erected and situated on the immovable
properties as well as a signed off and approved Site Development Plan (SDP) for the immovable
properties.
5. The pending final execution of the orders here by granted , First Respondent be and is hereby prohibited
from taking any steps of whatever nature against Applicant, in respect of the non -compliance and or
violation of any legislation that this order seeks to address and remedy.
6. That First Respondent be ordered to pay the cost of this application on an attorney and client scale, jointly
and severally with any other opposing party, on scale C, inclusive of cost of two counsel, one of whom is
Senior Counsel.
tying of the properties, which is in accordance with clause 7.3.3 of the
agreement.2
[7] The applicant however persists with the following relief namely:
7.1. Prayer 2.5 - where the City is required to complete the process, within 12
months of the applicant submitting the relevant documents which includes
the rectification of the zoning and/or rezoning, the consolidation of the
properties and the notarial tying of the immovable properties;
7.2 Prayer 3 – where in effect the City be ordered to take the necessary steps
to register the servitude in respect of the sewerage line, and furthermore
that the applicant cannot be held liable to move or legalize the build over
sewerage line;
7.3. Prayer 4 - where the City within a period be ordered to provide the
applicant with valid occupational certificates for all the structures erected
and situated on the immovable properties and further provide the signed
off and approved site development plan for the said properties;
2 Clause 7.3 both agreements (2006) and )2024) are identical and reads:
“7.3. The PURCHASER will at his own costs:
7.3.1 Obtain any required geotechnical report pertaining to the properties as may be
required; and/or
7.3.2 Ascertain the relevant accesses and/or entrances to the Properties in conjunction with
the SELLER and take also steps to procure an event approval for each access or
entrance as the Municipality may require.
7.3.3 Ascertain the present Sewage, stormwater, drainage, electrical and water systems are
available on and to the Properties and in conjunction with the SELLER take all the
necessary steps to procure such systems and for their Properties as the Municipality
may require.
7.3.3 Apply to the relevant competent authority for consolidation of the Properties if
required by the SELLER, and the PURCHASER will be responsible and liable for
payment of all costs, in connection with, and pertaining to such application, and
inclusive of land surveyors and/or Townplanners costs and fees.”
7.4 Prayer 5 – that pending the execution of the orders, the City is prohibited
from taking any steps against the applicant in respect of non-compliance
and/or violation of any legislation that this order seeks to remedy and
address.
[8] The applicant claims that it was guided by an expert when setting out the basis of
the relief sought. The expert, in his report, had set permissible timelines for the
City to approve the rezoning and consolidation of the properties in issue.3
ANALYSIS
[9] At the heart of the dispute is the enforceability of the voetstoots clause The
applicant’s case is that since the properties in question cannot be used for the
purpose they were purchased, the voetstoots clause is unenforceable.
Furthermore, it contended that it was not aware of the defects. This City, on the
other hand, contended that the applicant was aware of the defects pertaining to
the as-built building plans and that the sewerage line transversed over the
properties when it signed the 2024 sale agreement.
[10] The “voetstoots” clause as set out in both the 2006 Sale Agreement as well as the
2024 agreements stipulated:
“4.1 The property is hereby sold or registered in the name of the seller and are
sold subject to all the conditions and servitudes as mentioned or referred
3 The experts envisaged the rezoning application will take 14-16 months to finalize; and the consolidation 4-5
months to be approved and further 6 - 8 months until it can be registered.
to in the present, and all previous title deeds of the properties and are
subject to any applicable town planning scheme/s.
4.2 The properties are acquired by the purchaser “voetstoots”, the purchaser
accepting all risk in respect thereof, and declaring that it is fully acquainted
with the nature, meaning, and extent of the description “voetstoots”.”
The sale agreement
[11] The parties part ways as to when, in fact, the contract of sale had been
concluded. The date has particular bearing on when and if the applicant was
aware of the defects or not. The applicant holds the view that the agreement was
concluded in terms of the 2006 sale agreement. The 2024 sale agreement had
come about due to the court order that directed the City to transfer the properties
into the applicant’s name. Consequently, the applicant argued that when the
parties entered into the agreement in 2006 it was not aware of the defects, in
particular, that there were no “as-built” building plans and that the sewerage line
traversed over the properties.
[12] The City, on the other hand, contended that the relevant agreement is the 2024
agreement and when the applicant signed the 2024 agreement, it had been aware
of the defects. Hence it could not rely on the latent defect defence.
[13] The applicant explained that subsequent to signing the agreement (2006), a court
order was granted in 2007 in favour of the Mandela Development Corridor (“the
MDC”), where the City was compelled to register the property into the applicant’s
name. The City was further ordered to sign all the documentation required by
MDC to effect registration of the transfer of the properties to the applicant; (Du
Plessis J order).
[14] As the City failed to comply with the order, a further application was instituted
claiming the enforcement of the August 2007 order. Much later the City instituted
a rescission application in order to rescind the August 2007 order. Tuchten J
dismissed the rescission application on 7 May 2024. This was followed by the
Joyini J and the Nthambeleni J orders respectively, that were in favour of the
applicant. Eventually the City being unsuccessful in appealing Joyini J’s order,
agreed to the sale and transfer of the property. This resulted in the additional sale
agreement on 27 August 2024 (the 2024 Sale Agreement). According to the
applicant, the 2024 Sale Agreement incorporated the 2006 Sale Agreement.
The City’s case
[15] The thrust of the City’s contentions were that:
15.1 the 2024 Sale Agreement is the effective agreement as the 2006
agreement was replaced with the 2024 agreement.
15.2 the respective orders of the courts are to be challenged and the City’s
consent to sell the properties are to be reviewed. It was explained that the
relief granted by the respective courts were incompetent and unlawful
since the sale agreement had to be approved by the Municipal Council.
As this was not done, it is incompetent for the City to claim ownership;
15.3 the applicant was well aware of the ‘voetstoots’ clause specifically when it
signed the 2024 agreement;
15.4 the 2006 sale agreement could not have effect as it was subject to the
fulfilment of a statutory condition which required the successful advertising
in terms of Section 79(18) of the Ordinance. The suspensive condition set
out in Clause 23 of the 2006 agreement stipulated:
“SUSPENSIVE CONDITION
This agreement is subject to the suspensive condition that the property is
successfully advertised in terms of Section 79(18) of the Local
Government Ordinance (Ordinance 17 of 1939).”
As since the suspensive condition was not fulfilled, the contract does not
have effect.
[16] In my view, the City’s contention that the reliance should only be placed on the
2024 agreement is untenable. It was evident that the 2024 agreement simply
gave effect to the previous court orders of 28 August 2007 and 22 May 2024
respectively, where the City was directed to inter alia conclude the sale and effect
transfer of the properties into the applicant’s name. The relevant extract of the
Preamble to the 2024 agreement recorded:
“Now THEREFORE in implementation of the order of the High Court of South
Africa, Gauteng Division, Pretoria 28 August 2007 and one dated 22th May 2024
the parties agreed as follows…”
[17] The City's reliance on clause 14.2 of the Municipal Finance Management Act
2003, which required the Municipal Council’s approval of the sale of the
properties, further has no merit. I have again noted that in the “Preamble” of the
2024 agreement, a recordal was made that the City had complied with Section
14(2) of the said agreement. The relevant extract of the Preamble read:
“AND WHEREAS the seller on the 17 September 2020 formally complied with the
provisions of Section 79(18) of the Local Government Ordinance, 1939 and
Section 14(2) of the Municipal Finance Management Act, 2003 by approving the
sale of the properties in question, and ordered on the 28 August 2007.”
Building Plans
[18] With regard to the building plans, I find that the applicant justifiably persisted with
its contentions that:
18.1 the City, was the owner of the property up until October 2025 and as a
local authority it was required to oversee the process of approving the
building plans and ensure they were in place. It is therefore untenable for
the City to argue that there were no building plans alternatively the building
plans may have been destroyed in the “Munitoria fire”;
18.2 the applicant was unaware that there were no building plans until the City
brought this fact to its attention;
18.3 at all relevant times, particularly when the present application was
instituted, the City was the registered owner. The applicant only acquired
ownership in October 2025. As the previous owner and the local authority,
the City was, in law, responsible for complying with the National Building
Regulations and Building Standards Act (the Act),4 Sections 4(1) and 4(2)
stipulated:
“4(1) No person shall without the prior approval in writing of the local
authority in question, erect any building in respect of which the
plans and specifications are to be drawn and submitted in terms of
this act.
(2) Any application for approval referred to in sub-section (1) shall be in
writing on a form made available for the purpose by the local
authority in question.”;
18.4 Clearly when the buildings were erected, the City, as the owner of the
properties had to ensure that the building plans were in place. Section 7 of
the said Act makes provision for the local authority to approve the erection
of such buildings;
18.5 more importantly, the City had to be satisfy itself that the premises could
only be used for the purpose reflected on the approved building plans;5
18.6 the impugned letter issued by the City in December 2022 was irregular as
the applicant was not the owner at the time. The applicant nevertheless,
upon receipt of the said letter, proceeded to prepare the building plans at
its own cost. Even then the City refused to issue a power of attorney until
the new purchase contract was signed with the applicant;
4 Act 103 of 1977
5 Section A25(1) of the Building Regulations stipulates:
“No person shall use any building or cause or permit any building to be used for the purpose other than
the purpose shown on the approved building plans of such building, or for a purpose which causes a
change in the class of occupancy as contemplated in these regulations, whether such plans were
approved in terms of the A ct or in terms of any law enforced at any time before the date of
commencement of the Act, unless such building plan is suitable, having regard to the requirements of
these regulations, for such first mentioned purpose or such change in class of occupancy. ”
18.7 on 10 August 2023, the City issued another impugned notice informing the
applicant that the properties leased by the applicant do not comply with the
South African National Building Regulations, despite the City being the
owner of the properties at the time.
` The sewerage line issue
[19] The applicant demonstrated that when the 2006 sale agreement was concluded it
had no knowledge that the sewerage line traversed the properties, not even when
it rented the properties since the 1990’s.
[20] Clearly the City was aware that the 160 meter municipal sewerage line traversed
the properties and had was constructed without the requisite approval. The
particular resolutions taken by the City’s officials is evidence thereof:
20.1 both the 2007 and 2020 resolutions recorded that the owners,
beneficiaries or successors of the properties will be liable for the costs for,
inter alia, the protection of the municipal services and the rerouting of the
services. It read:
“Cognisance must be taken of the fact that the current buildings were
apparently unknowingly constructed over municipal services, also the
future owners or beneficiaries of these properties will, at their cost, have to
protect these municipal services with absolute servitude to be registered in
favour of the COT to the satisfaction of the division ….”;
20.2 The 17 November 2020 resolution read:
“All existing sewers transversing the properties must be protected and
should the sewer need to be rerouted it would be at the cost of the
successor entitled. Furthermore should any rezoning require water and
sanitization services to be upgraded, the cost thereof will be the
responsibility of the successor entitled to the satisfaction of the division.”
The City’s further contention that the applicant was aware of the said
resolution remained unsubstantiated.
21.3 The applicant contended that by virtue of the agreement, its only obligation
was to comply with Clause 7.3.3 which stipulated:
“Ascertain the present sewerage, storm water, drainage, electrical and
water assistance available and to the properties and in conjunction with
the seller take all necessary steps to procure such systems and for the
properties as the municipality may require”.
Notably the agreement is silent on the liability of the applicant pertaining to
sewerage line.
Reliance on an implied term in the agreement
[22] During argument the applicant advised that it no longer persisted with the latent
defect defence and, in particular, conceded that it would be unable to prove that
the City failed to disclose the defects with the intention to defraud. Instead, it
argued that the City delivered properties that was different to the properties the
applicant intended to purchase. As a result, the voetstoots clause cannot be
enforced. The City objected to the new point raised. It pointed out that this
defence was never pleaded in the papers nor was the point raised.
[23] I have noted the applicant’s explanation that the facts as pleaded remain the
same. Its case still is, as alleged in the papers, that it was not aware of the
defects when the agreement (2006) was signed. It had always been under the
impression that the properties complied with the relevant legislative prescripts
when they were occupied. The agreement expressly stated that a school is being
conducted on the premises. Hence it was an implied term of the sale agreement
that the properties should be capable of being lawfully utilized for the intended
purpose (for educational purposes).
[24] Furthermore in law, it was permissible to advance legal arguments (even if such
arguments are not specifically mentioned in the papers), provided that the
argument arises from the facts and evidence before the court. The applicant
referred to the Swissborough Diamond Mines matter6 when the court in
upholding previous authorities, in essence expressed:
“In Heckroodt N.O. v Gonut 1959 (4) SA 244 T at 246 A-C and Van Rensburg v
Van Rensburg en Anderee 1963 (1) SA 505 A at 509 E – 510 B, it was held that a
party in motion proceedings may advance legal argument in support of the relief
or defence claimed by it even where such arguments are not specifically
mentioned in the papers, provided they arise from the facts alleged …”
6 Swissborough Diamond Mines (Pty) Ltd & Others v Government of the Republic of South Africa and Others
1992 (2) SA 729.
[25] It is common cause that the voetstoots clause appeared in both the 2006 as well
as the 2024 agreements. As aforesaid, the applicant in essence relied on the
proposition in law - that the voetstoots clause cannot be enforced if the purchaser
is able to establish that the seller delivered something different from what was
purchased by the buyer.
[26] The applicant illustrated that the City, at all relevant times, had been aware that
the buildings situated on the properties were utilized only for the operation of the
school. This was recorded in various documents which included:
26.1 the lease agreement, which at paragraph 5 stipulated:
“The lessee undertakes to use the leased premises only for educational
purposes as may be permissible in terms of the Pretoria Town Planning
Scheme, 1974.”
26.2. clause 7.1 of the 2006 sale agreement recorded that the use of the
property was primarily for education purposes.
26.3 Further clause 22.3 of both the agreements stipulated that:
“22.3 The purchaser undertakes to use the properties, primarily for
educational purposes, as per the current use/zoning set out in
Annexure ‘C’ attached hereto …”
[27] On these facts, it can therefore not be disputed that since 1991 when the
applicant took occupation of the property, the City was aware that the property
was occupied to conduct a school. Since then, the buildings on the properties
were utilized as a composite unit to only conduct a school for educational
purposes.
[28] The applicant further pointed out that during its entire period of occupancy, it had
not effected any structural changes to the properties. It was therefore reasonable
to assume that the properties were legally compliant. At no point, prior to the
receipt of the impugned letters, was the applicant aware of the defects. Clearly, in
these circumstances, it was unlawful for the City not to have complied with the
relevant legislative prescripts and moreover allow the school to conduct its
activities on properties that were not legally compliant.
[29] In support of the point made, the applicant relied on Dutch Reformed Church
Council matter,7 which endorsed the proposition in law that if an article is sold at
the instance of the seller and the “article” is to be used by the latter for a particular
purpose, and if such article cannot be used for that particular purpose, the seller
cannot insist on enforcing the voetstoots clause, even if the purchaser has
undertaken to purchase the particular.
[30] The salient facts in the Dutch Reformed Church Council matter were that: the
purchaser undertook in terms of clause 11 of the contract to use the property as a
funeral parlour and not for any other purpose without the consent of the seller.
Moreover, the property was sold voetstoots. The defendant relied on the defence
that the property was situated in an area which was zoned as a residential area.
Consequently, the property could not be used as a funeral parlour without the
permission of the Municipal Council. The plaintiff, however, succeeded in its
7 Dutch Reformed Church Council v Crocker 1953 (4) SA 53 C
defence, arguing that if the property was sold for the purposes of conducting a
funeral parlour, the agreed voetstoots clause cannot find application as it defeats
the agreed purpose for which the property was acquired.
[31] In Ornelas8 the court upheld the said proposition. On the particular facts thereof it
confirmed that a voetstoots clause does not exempt the seller from its the
obligation to deliver a lawful business, that of a restaurant. It endorsed the Dutch
Reformed Church matter and cited therefrom:
“In my view however if an article is sold and if, at the instance of the seller, it is
stipulated in the agreement between the seller and the purchaser that it is to be
used by the latter for a particular purpose the seller cannot insist upon the sale
being implemented if the property cannot be so used, even though the purchaser
may have undertaken to buy it voetstoots. Though the defendant purchased the
property voetstoots, he - inferentially, at the instance of the plaintiff - gave an
undertaking to use it for the purposes of a funeral parlour and not otherwise, save
with consent of the plaintiff. Postulating a right to repudiate the purchase because
of the inability to comply with the agreed stipulation, viz to use the property for the
purposes of a funeral parlour, it seems to me that the presence of the voetstoots
provision does not necessarily operate to defeat that right.”
8 Ornelas v Andrews Café and Another 1980 (1) SA 378 (W) (Ornelas) at page 390 read with the Dutch
Reformed Church Council Matter at page 59
The court in Ornelas then concluded: “my conclusion on this part of the case is
therefore that the part of the business, that had to be delivered was a restaurant
which could not be lawfully operated”.9
[32] Similarly, in this matter the applicant relies on the said proposition in law and
submitted that the City was required to deliver properties which the parties had
agreed upon, namely premises to conduct a school lawfully on the properties that
were legally compliant.
[33] To counter the applicant’s argument, the City pointed out that statutory non-
compliance cannot be a ground for excluding the voetstoots clause and it relied
on the findings in Odendaal10. I find the City’s reasoning to be flawed. This matter
is clearly distinguishable from Odendaal scenario. The prevailing consideration in
matters of this nature is to appreciate that each matter is considered on its own
set of facts. The Supreme Court of Appeal in Odendaal had regard to the
particular set of facts and distinguished them from the facts in Ornelas. It
expressed:
“[20] The court (Nestadt J) construed this clause restrictively, holding that the
‘state or condition of the business' should be 'confined to the physical or
visible qualities of the business'. It thus held that the clause did not exempt
the sellers from their obligation to deliv er a business that could lawfully be
9 Ornelas page 390
10 Odendaal v Ferraries 2009 (4) SA 313 SCA at page 59
conducted, that is, with a licen se - there being an implied warranty to this
effect - and thus that this was not a 'case of a defect in the res vendita 'but
in truth a case of delivery to the buyers' of something differ ent from what
was bought'.
[21] In my view, Ornelas's case is quite distinct from both Van Nieuwkerk and
the present case. The absence of a license to operate the premises as a
restaurant or eating house meant that the buyers could not use it for the
express purpose for which it had been purchased. 'The whole tenor of the
agreement', Nestadt J pointed out, was that such a business would 'be
conducted at the premises'. The voetstoots clause therefore did not
'exempt the sellers from their obligation to deliver a business which
includes a restaurant able to be lawfully operated'.”
[34] In Odendaal, the issue centered on the absence of statutory approval for building
alterations “or the other authorizations that render the property compliant with
prescribed building standards does not render the property unfit for the purpose
for which it was purchased”. The court further noted that the respondent did not
allege that the defects relating to the outbuilding and carport rendered the
property unfit for habitation. The court concluded that in such an instance, the
appellant did not deliver “something different from what was bought as in
Ornelas”. On the contrary, the court found that “he received exactly what he
purchased, namely an ideally located spacious dwelling house with ample parking
space”.
[35] The City further in attempting to rely on Odendaal, advanced argument that the
school can operate without the properties being legally compliant. The applicant
had since 1991 operated the school and continues to do so to this day. In my
view, this reasoning is once again flawed. Clearly the issue herein is whether the
premises are lawfully conducive to conduct a school therefrom.
[36] The strength of the applicant’s case in this matter is premised on Ornelas where
the applicant illustrated that the properties were purchased for the sole purpose to
lawfully operate a school on the properties. The City had been aware of this fact
since 1991.
[37] I find that the applicant’s version has merit, particularly if one has regard to its
conduct and interaction with the City. When the City informed the applicant that
the properties were non-compliant, the applicant did not merely sit back and
continue with the affairs of the school. Instead, it immediately commenced in
procuring the “as built” plans and did so at its own expenses. It's submission that
it had always been under the impression that the properties were legally
compliant, has substance.
[38] It further advised that since its occupation, in 1991, it had not effected any
structural changes to the buildings on the properties. It could thus not have been
aware of the defects.
[39] In my view, the City’s further reliance on the Haviside matter11 does not come to
its assistance. The facts in Haviside are similar to the Odendaal scenario. In
Haviside, a carport was converted into a garage and such conversion took place
without approved plans. Further on the facts, even the seller was not aware that
there were no approved plans. In this instance, the City was aware of the defects
and whilst it had been the owner.
[40] In fact the court in Haviside acknowledged that the facts before it, were similar to
the Odendaal scenario. It also acknowledged that the court in Odendaal found
the facts and circumstances of Ornelas to be distinguishable. It expressed:
“It is clear that the Ornelas matter is quite distinct from Van Nieuwkerk as well as
from Odendaal and the case before me. The absence of a licence to operate
premises as a restaurant simply meant that the buyers could not use it for the
express purpose for which it had been purchased. By contrast, the absence of
statutory approval for building altera tions, or other authorisations which render a
property compliant with prescribed building standards, such as were in issue
in Van Nieuwkerk and in Odendaal, and in my view are in issue here, do not
necessarily render the property unfit for habitation.”
At page 241 it confirmed:
“This case in my view is therefore distinguishable from Ornelas, which in any
event does not support the reasoning or conclusion reached in both Van
Nieuwkerk and in Odendaal.”
11 Haviside v Heydricks and Another 2014 (1) SA at 235
CONCLUSION
[41] In conclusion I am satisfied that the principles set out in the Dutch Reform ed
Church matter and endorsed In Ornelas finds application. The City was required
to have delivered the properties for the intended purpose which it had not. It can
therefore not rely on the voetstoots clause in the circumstances. It was illustrated
that the sole objective for which the properties were to be used was clearly
recorded in the agreement and the City was well versed with the fact that a school
was conducted on the properties all these years . It was an implied term of the
agreement that the properties should be capable of being lawfully utilized for the
intended purpose.
[42] With regard to the relief sought, after having considered the experts’ estimation of
when the City would be able to attend to the necessary approvals , the proposed
time periods set out by the applicant as well as the responde nt submissions that
the City has an extensive backlog in its administration , I am of the view that the
time periods set out in the orders are manageable and fair.
[43] Furthermore the interdictory relief sought is warranted in the circumstances. The
City had previously, in no uncertain terms, threatened to take necessary steps
against the applicant for failing to comply with the necessary prescripts to have
the properties legalized.
COSTS
[44] The applicant as the successful party is entitled to its costs . In my view, co sts on
Scale C and upon the employment of two counsel, is justified.
_____________________________
H. KOOVERJIE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances:
Counsel for the applicant: Adv. GF Heyns SC
Adv. M Jacobs
Instructed by: Klagsbrun Edelstein Bosman du Plessis Inc
Counsel for the third respondent: Adv. M Rip SC
Adv. M Rasekgala
Instructed by: Mahumani Inc
Date heard: 24 February 2026
Date of Judgment: 23 March 2026