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[2013] ZAWCHC 46
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McKersie v SDD Developments (Western Cape) (Pty) Ltd and Others (21283/12) [2013] ZAWCHC 46; 2013 (5) SA 471 (WCC) (6 March 2013)
THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH COURT)
Case No:21283/12
In the matter between:
Reportable
WILLIAM MALCOLM
McKERSIE
APPLICANT
And
SDD DEVELOPMENTS
(WESTERN CAPE) (PTY) LTD
FIRST
RESPONDENT
HARBOUR
TERRACE SECTIONAL TITLE SCHEME
REGISTRAR OF
DEEDS,CAPE TOWN
SECOND RESPONDENT
THIRD RESPONDENT
Coram
:
ROGERS AJ
Heard: 15 JANUARY 2013
Delivered: 6 MARCH 2013
JUDGMENT
ROGERS J:
Introduction
This application came before me on 22 January 2013 as
an unopposed return day in Third Division. After hearing the
applicant’s
counsel, Ms van der Walt, I reserved my decision
as I was not satisfied that the relief could or should be granted.
On 14 December 2012 the court
authorised the issuing of a rule
nisi
calling upon all interested parties to show cause (if any) on 22
January 2013 why an order should not be granted [a] declaring
the
applicant to be the owner of exclusive use area OB2 (‘the
property’) in the sectional title scheme known as Harbour
Terrace in Sea Point (‘the scheme’); and [b] directing
the Registrar of Deeds (‘the Registrar’) to register
the
property in the applicant’s name within three months of the
order. Directions were also given for service and publication
of the
rule
nisi
.
The applicant cited, as the
respondents, SD Developments (Western Cape) (Pty) Ltd (‘SDD’),
the body corporate of the
scheme and the Registrar. Service and
publication were effected in accordance with the court’s
directions. There was no
opposition on the return day. The Registrar
did not file a report.
1
The founding papers disclose the
following facts. The scheme was established in 1998 in terms of the
Sectional Titles Act 95 of
1986 (‘the ST Act’). SDD was
the ‘developer’ as defined in the ST Act.
In January 2005 the applicant
purchased from one Derick Robert Humphrey (‘Humphrey’)
for R490 000 Section 1 in
the scheme together with an exclusive
use area being an open parking bay identified as V1. On 22 February
2005 transfer of Section
1 was passed to the applicant. The parking
bay (now known as exclusive use area OB2) was not simultaneously
registered in his
name by notarial deed of cession in accordance
with s 27(4) of the ST Act. The deed of transfer recorded the
true price
of Section 1 as being R490 000 and transfer duty was
paid on that sum. This was in fact the price which had been agreed
with Humphrey for Section 1 together with the parking bay.
The applicant only discovered in early 2012 that he was
not the registered owner of the parking bay. The conveyancer who
attended
to the transfer in 2005 was aware of the need to transfer
the exclusive use area to the applicant and prepared a draft
notarial
deed of cession. It appears that this was not executed and
registered because the conveyancer ascertained that Humphrey himself
was not the registered owner of the parking bay. Unfortunately the
applicant only learned this in 2012.
Although Humphrey was not and is not the registered
owner of the parking bay, the applicant states his understanding to
be that
Humphrey purchased Section 1 and the parking bay from SDD in
2003.
According to a CIPC report annexed to the founding
affidavit, SDD was finally deregistered on 20 April 2007 (this must
have been
pursuant to s 73 of the Companies Act 61 of 1973).
Unless restored to the register, SDD cannot transfer the parking bay
to Humphrey so that the latter can transfer it to the applicant. The
applicant submits that because SDD had been ‘deregistered’
rather than ‘dissolved’, the parking bay registered in
its name did not devolve upon the State as
bona vacantia
but
became the property of the members of the deregistered company as an
unincorporated association. The applicant stated that
he did not
know the members’ identities. (As will appear hereunder, the
applicant corrected this contention in a supplementary
affidavit
filed on 18 January 2013.)
The applicant avers, somewhat laconically, that he has
been ‘unable to trace or contact’ Humphrey. Humphrey has
not
been cited as a respondent.
After reserving my decision I requested the applicant’s
legal representatives to file a supplementary affidavit [a] setting
out the date on which SDD transferred the last of the sections
registered in its name; [b] explaining the steps taken to locate
Humphrey; and [c] explaining the basis for the applicant’s
understanding as to what Humphrey had bought from SDD. The
supplementary affidavit was delivered to me on 21 February 2013.
This affidavit stated in summary the following: [a] SDD
transferred the last units to third parties in 2003. [b] The
applicant was still unable to trace Humphrey. Deeds office
searches
reflected that he may well have been sequestrated. [c] The
applicant had not been able to obtain a copy of the
deed of sale
between SDD and Humphrey. The applicant’s understanding of
what Humphrey had bought was said to be based on
deeds office
searches relating to the relevant sections and exclusive use areas.
(It is not clear to me how such searches could
have established that
SDD sold the exclusive use area in question to Humphrey in 2003 or
at all since no transaction in respect
of the exclusive use area was
ever registered at the deeds office.)
I invited the applicant’s legal representatives
to file written submissions on two aspects which I had not put to
counsel
for comment during the oral hearing. Such submissions were
duly filed.
Effect of SDD’s deregistration
Because SDD was deregistered as a
company on 20 April 2007 and has not been restored to the
register, SDD could not properly
be cited as the first respondent in
the current proceedings. A non-existing company cannot be a party to
legal proceedings.
2
The applicant’s submission
that the property owned by SDD at the time of its deregistration
devolved on the company’s
members and not the State is plainly
wrong. If a company ceases to exist by virtue of deregistration, its
property is vested
in the State as
bona
vacantia
. That is
why the courts insisted on the joinder of the relevant
representatives of government when applications were made for
the
restoration of deregistered companies in terms of s 73 of the
1973 Companies Act.
3
If the parking bay which belonged to SDD and was
registered in its name immediately prior to its deregistration
devolved upon
the State as
bona vacantia
, the present
application could not be granted without the joinder of the relevant
representatives of government.
However, in a supplementary affidavit dated 18 January
2013 the applicant’s attorney said that the applicant, when
submitting
in his founding affidavit that the parking bay vested in
SDD’s members upon the company’s deregistration, had
overlooked
s 27(4)(b) of the ST Act. The applicant’s
attorney submitted that the effect of this provision was that upon
SDD’s
deregistration the parking bay vested in the body
corporate (the second respondent).
Section 27(4)(b) provides as follows:
‘
If an owner ceases to be
a member of the body corporate as contemplated in section 36(2), any
right to an exclusive use area still
registered in his or her name
vests in the body corporate free from any mortgage bond or registered
real right.’
The above provision seems to me to apply to an owner
other than the developer. The provision which the applicant’s
attorney
should have cited was s 27(1)(c) which reads thus:
‘
If a developer ceases to
be a member of the body corporate as contemplated in section 36(2),
any right to an exclusive use area
still registered in his or her
name vests in the body corporate free from any mortgage bond.’
In terms of s 36(2) the
developer ceases to be a member of the body corporate when he ceases
to have a share in the common
property as contemplated in s 34(2).
Section 34(2) provides in turn that when the ownership in every
section is held by
a person or persons other than the developer, the
developer shall (subject to the provisions of s 25(1)) cease to
have a
share or interest in the common property. The practical
effect of these provisions is thus that when the developer gives
transfer
of the last section or sections held by him, he ceases to
have a share or interest in the common property and thus ceases to
be a member of the body corporate, so that any exclusive use area
still registered in his name will devolve upon the body corporate.
The supplementary affidavit filed at
the court’s request reveals that the last sections owned by
SDD were transferred to
third parties in 2003. It follows that upon
such transfer in 2003 the parking bay still registered in SDD’s
name (by which
I mean the exclusive use right in respect of the
parking bay) vested in the body corporate. This may seem a hard
result where
the exclusive use right has been the subject of a sale
by the developer and is only still registered in its name due to an
oversight.
However there is no escape from the clear terms of the
Act. It is of interest to note that this very problem was apparently
debated
at the Registrars’ Conference of 2006 in relation to
s 27(4)(b).
4
In the case they considered the exclusive use right was registered
in A’ name. A sold a unit and the exclusive use area
to B and
there were then successive transactions in which the unit and
exclusive use area were sold by B to C, by C to D and
finally be D
to E. Due to an oversight only the unit had on each occasion been
transferred. The Registrars’ conclusion
(in the form of a
Conference Resolution) was that if A was still a member of the body
corporate transfer could and should be
passed by registration of
notarial deeds in accordance with the successive sales; but that if
A had ceased to be a member of
the body corporate (because he no
longer owned a unit) the right of exclusive use vested in the body
corporate in terms of s 27(4)(b).
The applicant’s attorney
submitted in written argument that SDD had not, after selling the
bay to Humphrey, remained the
‘true owner’ of the
parking bay, and that Humphrey (and thus presumably now the
applicant) became the ‘
de
facto
owner’
of the bay. I do not think the addition of the words ‘true’
or ‘
de facto
’
add anything to the enquiry. In order to conclude that the applicant
is the ‘owner’ of the exclusive use area
one would need
to find that the right of exclusive use was transferred to him and
that he is thus currently vested with (ie the
holder) of the right.
The applicant is not the holder of the right. A right of exclusive
use created under s 27 (as distinct
from rule-based rights of
exclusive use under s 27A) is transferred by registration of a
notarial deed: see ss 27(1)(b),
27(3) and 27(4)(a). This is in
my view the sole way of becoming the holder of a right of exclusive
use created under s 27
(save of course for the vesting of such
rights in the body corporate pursuant to ss 27(1)(c) and
27(4)(b)). The right was
not transferred by SDD to Humphrey by
registration of a notarial deed with the result that Humphrey was
never the holder of the
right. There was also no transfer to the
applicant by registration of notarial deed, whether from SDD or
Humphrey.
The case must thus be approached on the basis that the
applicant is seeking to have registered in his name an exclusive use
area
which is currently vested in the body corporate (the second
respondent). The State has no interest in the relief sought by the
applicant and no representative of government needs to be joined
Section 33 of the Deeds Registries Act
The founding papers did not explain the source of the
court’s power to grant the requested relief. I put to counsel,
and
she did not contest, that the only source of jurisdiction was
s 33 of the Deeds Registries Act 47 of 1937 (‘the DR
Act’). Section 33(1) reads thus:
‘
Any person who has
acquired in any manner, other than by expropriation, the right to the
ownership of immoveable property registered
in the name of any other
person and who is unable to procure registration thereof in his name
in the usual manner and according
to the sequence of the successive
transactions in pursuance of which the right to the ownership of such
property has devolved upon
him, may apply to the court by petition
for an order authorizing the registration in his name of such
property.’
The holding of a registered right of exclusive use does
not strictly constitute ownership of immovable property. However,
s 27(6)
of the ST Act deems a registered right to exclusive use
to be for all purposes a right to immovable property. And s 90
of
the DR Act includes in the definition of ‘owner’ the
registered holder of a real right in immovable property. I think
the
holding of a registered right of exclusive use thus constitutes the
ownership of immovable property for purposes of s 33
of the DR
Act.
One of the reservations which I had
about the present application concerned the scope of the words ‘has
acquired …
the right to the ownership of immoveable property’
in s 33(1). The few reported decisions on s 33 are cases
where
the applicant had acquired ownership of the property but could
not obtain registration in his name in the usual way. The most
obvious example is where a person has become the owner by
acquisitive prescription
5
though there are other ways in which this could occur (including the
State’s acquisition of ownership of land in terms
of the
principles governing
bona
vacantia
and
statutory provisions such as s 27(1)(c) of the ST Act). This
view of s 33(1) appeared to be supported by the broader
statutory context. The preceding two sections (ss 31 and 32)
deal with the expropriation of land and servitudes and the
vesting
of land and servitudes in the State by legislation. These are cases
where the State becomes the owner of the land or
the holder of the
servitude without registration.
6
Section 33(1) goes on to deal with cases where a person has acquired
the right to ownership of property in any manner other than
by
expropriation, suggesting that s 33(1) caters for cases of
acquisition of ownership in all ways other than those covered
by
ss 31 and 32. It would arguably make sense to confine s 33(1)
to such cases, since registration in the applicant’s
name then
(as in the case of ss 31 and 32) merely brings the land
register in line with the actual legal position.
Despite the applicant’s allegation that he is the
owner of the parking bay, he clearly is not. Ownership vests in the
body
corporate pursuant to s 27(1)(c) of the ST Act. The
applicant has (or had) a personal contractual claim against Humphrey
for transfer of the parking bay (by registration of a notarial deed
of cession), an obligation Humphrey could only perform by
first
himself enforcing his personal right of transfer against SDD
(assuming he had indeed bought the bay from SDD). If a s 33(1)
application can only be brought by a person who is in fact the
owner, the applicant could not obtain the desired relief.
However, and despite my earlier reservations, I am on
further reflection satisfied that the scope of s 33(1) of the
DR Act
is wider and includes the case of a person with a personal
right to claim ownership, even though he is not yet owner.
Firstly, the phrase ‘right to the ownership of
immoveable property’ is not the natural way to express the
right of
ownership itself. If s 33(1) were confined to
ownership, the section would simply have referred to any person who
‘has
acquired … ownership of immoveable property’.
Furthermore, s 33(9) provides that registration under s 33
has ‘the effect of vesting such person with a title to such
property which shall be liable to be annulled, limited or altered
…’
etc. The reference to vesting the applicant with title suggests that
registration under s 33(1) can have
the effect of conferring a
right of ownership which the applicant did not previously have. And
then there is s 33(10) which
states that the applicant shall
not be liable (upon registration under s 33) to pay any tax,
duty, quitrent or interest
thereon which the owner or any
intermediate holder of the right to such property may have become
liable to pay ‘unless
he shall by agreement have bound himself
to pay such tax, duty, quit rent or interest’. The lawmaker in
this provision
contemplated that there might be a person other than
the applicant who was the ‘owner’. Moreover, I find it
difficult
to conceive of a case where an agreement of the kind
envisaged by s 33(10) could exist in circumstances where the
person
in question had already acquired ownership, since the
circumstances in which ownership can be acquired without
registration of
transfer are cases where the
causa f
or the
acquisition of ownership is not a contract.
The history of s 33 places the
matter beyond doubt. The forerunners of s 33 were the
provincial statutes dealing with
so-called derelict lands. Their
provisions are quoted and briefly explained in Court and Haylett
Practice and Procedure in Conveyancing
2
nd
edition (1954) at 131-137.
7
In the Cape Colony the Titles Registration and Derelict Lands Act 28
of 1881 applied to any person ‘who shall, by prescription,
or
by virtue of any contract or transaction, or in any other manner,
have acquired the just and lawful
right
to the ownership of any immoveable property
’
(my underlining). Similar wording was used in the Transvaal and
Orange River Colony statutes. The reference to the acquisition
of a
‘right to the ownership’ of property by virtue of a
contract or transaction (and not only by prescription) points
to the
inclusion of personal rights to claim ownership. Provincial
legislation shows that these provisions were applied not only
to
cases where an applicant was already the owner by virtue of
acquisitive prescription but also to cases where the applicant
had a
personal claim to acquire ownership.
8
For example, in
Ex parte Durr
(1886) 4 SC 147
the petitioner was in possession of the whole of a farm but due to
oversight he and several intermediate predecessors had only
received
transfer of a half-share and a quarter-share respectively of the
farm. The registered owner of one of the outstanding
shares in the
farm had been sequestrated and his trustee had died, while the
registered owner of the other outstanding share
in the farm was
deceased and his estate had been finally wound up. In each of the
intermediate but erroneous transfers, transfer
duty had been paid
with reference to the value of the larger share and not with
reference to the smaller share erroneously transferred.
Dwyer J
(dissenting) held that the Cape statute applied only where it was
impossible to obtain transfer and not merely where
it was difficult.
De Villiers CJ (with whom Smith J concurred) disagreed and granted
the petition, observing as follows:
‘
I cannot agree with my
brother Dwyer that the Act does not apply. It was to meet
difficulties of this kind, I believe, that the
Act was passed. The
two important matters which the Court has to provide against in this
application are, first, to take care that
the revenue is not
defrauded; and, second, that all persons interested should have full
and due notice of the application.
It appears from the facts that
the revenue cannot be defrauded of any rights by this order, because
transfer was passed upon the
supposition that the whole land was
transferred, and therefore the purchase price which was paid would
not have been more if the
whole land had been transferred. And, in
order that no person interested may be prejudiced, due notice must be
given; and there
must also be some publication in the
Gazette
giving the same
notice.
In the present case, the land
stands registered in the name of two persons; one has died, and her
executor has administered the
estate; the other is insolvent, and the
trustee of the insolvent estate has died, and the question is now
whether we are to compel
the applicant to go through the process of
obtaining the appointment of a trustee, and of bringing an action
against him, and upon
obtaining transfer from him, to proceed against
all the intermediate parties. I think not; of the persons in whose
name the property
stands registered, one is dead and one insolvent;
and, as it is practically impossible for the applicant to obtain
transfer, I
think the Act applies, and that the Court ought to grant
the rule nisi.’
The provincial statutes were not initially repealed
with the introduction of the DR Act in 1937. Section 33 in its
initial form
entitled an applicant (in circumstances similar to
those now to be found in s 33(1)) to apply to a statutory
Standing Commission
for registration. The phrase ‘has acquired
… the right to the ownership of immoveable property’ as
found in
the provincial legislation was adopted. The procedure for
petition to court under the various provincial statutes continued to
exist until s 33 was brought substantially into its current
form and the provincial legislation repealed by the
Deeds Registries
Amendment Act 43 of 19
57.
Section 33(1)
in its original and
amended form did not (as the provincial statutes had done) refer to
specific causes of acquisition (such
as prescription, agreement or
transaction), instead opting for the wide expression ‘in any
manner, other than by expropriation’.
The lawmaker did,
however, adopt from the earlier statutes the phase ‘has
acquired … the right to the ownership
of immoveable
property’, and this strongly supports a conclusion that no
material change in the scope of the new countrywide
provision was
intended.
I thus conclude that although the applicant cannot
allege that he is the owner of the parking bay, this does not in
itself preclude
reliance on
s 33(1).
Right to ownership
The question remains whether the applicant has a right
to ownership of the kind contemplated in
s 33(1).
In the
discussion which follows I shall assume in favour of the applicant,
despite the absence of satisfactory evidence, that
Humphrey in fact
concluded a deed of sale with SDD for the purchase of the parking
bay.
Where a person is not yet the owner of property but is
one on whom the ‘right to the ownership’ of the property
has
allegedly devolved by way of a transaction, the person must I
consider establish that he has an extant right to claim transfer
of
the property but that it is not possible to obtain registration of
transfer in the usual way. This would typically be because
the
registered owner and (where applicable) intermediate purchasers and
sellers of the property are no longer available to give
transfer.
The
Durr
case, from which I quoted earlier, affords an
example.
The present case is quite different. Ownership of the
parking bay vests in the body corporate, a juristic entity which
exists,
is active and has been cited as a respondent. Although SDD
has been deregistered and Humphrey cannot be traced, those
circumstances
are not the real explanation for the difficulty
confronting the applicant. The true obstacle in the applicant’s
way is
that ownership of the parking bay vests in the body
corporate, with whom neither the applicant nor Humphrey contracted.
Even
if SDD were still in existence, this would not alter the fact
that in 2003 (about four years prior to its deregistration) SDD lost
ownership of the parking bay pursuant to s 27(1)(c) of the ST
Act. The result is that Humphrey, even if he were still on
the scene
and even if SDD were still in existence, could not obtain transfer
of the parking bay from SDD in order to give transfer
in turn to the
applicant.
This naturally does not mean that Humphrey did not
conclude a valid contract with SDD or that the applicant did not
conclude a
valid contract with Humphrey (since a seller may sell
what he does not own) but it does mean that the applicant’s
right
against Humphrey would be confined to a claim for damages for
the latter’s failure and inability to give transfer of the
parking bay. Under these circumstances I do not think it can be said
that the right to the ownership of the parking bay has devolved
upon
the applicant.
Inability to obtain transfer
The above reasoning justifies the further conclusion,
also fatal to the application, that the applicant has not
demonstrated that
he is ‘unable’ to obtain registration
in the usual way.
The entity which owns the parking bay (the body
corporate) is alive and well, and could give transfer to the
applicant if it were
willing to do so. Because the body corporate
has become the owner of the parking bay in terms of s 27(1)(c)
of the ST Act,
the body corporate is entitled in terms of s 27(1)(d)
to apply to the Registrar for the issuing in its favour of a
certificate
of real right of exclusive use. Armed with this
certificate, the body corporate could by notarial deed transfer the
parking bay
to the applicant, subject to compliance with ss 27(2)
and 27(3).
It may be said that the applicant has no right to
compel the body corporate to transfer ownership to him because he
has no contract
with the body corporate. That is true, and it is for
that reason that I consider that the applicant has not acquired a
right
to the ownership of the parking bay within the meaning of
s 33(1) of the DR Act. If, despite the equity of the
applicant’s
case, the body corporate is not willing or
entitled to transfer the parking bay to the applicant free of
consideration (I hope
it can), the court cannot use s 33(1) to
deprive the body corporate of its ownership. The applicant would
then be confined
to his contractual claim for damages against
Humphrey. If, on the other hand, the body corporate is willing to
transfer ownership
of the parking bay to the applicant in order to
give effect to what SDD, Humphrey and the applicant all intended, an
order under
s 33(1) is not needed nor competent, because the
applicant would then be able to obtain registration in the usual
way.
I do not lose sight of the fact that the body corporate
has been cited as a respondent and has not opposed the relief sought
by
the applicant. The applicant’s attorney in his written
submissions highlighted this point by stating that the body
corporate
is not asserting any right of ownership. This cannot
justify the granting of relief which is otherwise incompetent. If
the body
corporate’s non-opposition signifies that it is
willing to transfer the parking bay to the applicant free of
consideration,
that must occur in the usual way. (Whether the body
corporate is aware that it is the owner of the parking bay and has
agreed
to surrender its ownership to the applicant is by no means
clear. The contention that ownership of the parking bay vests in the
body corporate was not raised in the founding papers served on the
respondents. The supplementary answering affidavit by the
applicant’s attorney, where s 27(4)(b) – more
accurately s 27(1)(c) – was raised for the first time,
was not, so far as I can tell, served on the respondents. The
supplementary affidavit of 18 January 2013 was filed shortly before
the return day for the benefit of the court and on the supposition
that the respondents had elected not to oppose and thus need
not be
served. The body corporate may well have been overlooked, as the
applicant and his attorneys initially did, the provisions
of
s 27(1)(c).)
Discretion
In terms of s 33(6) the granting of relief under
s 33 is discretionary. I do not think the discretion arises in
this
case, because the applicant has failed in my view to bring
himself within the jurisdictional requirements of s 33(1).
There
may, however, be cases where an applicant can bring himself
within the terms of s 33(1) but where a court might
nevertheless
in the exercise of its discretion decline to grant
relief. This might particularly be so where there is another party
who could
more appropriately obtain the relief and where the grant
of relief to the applicant in question would deprive the fiscus of
transfer
duty.
It so happens that a case I dealt with in Third
Division several weeks ago affords an illustration. There the land
was still registered
in the name of a person (X) who had died in
1926. The executor in the deceased estate of another person (Y) who
had acquired
ownership of the land by acquisitive prescription sold
the land to Z on condition that the purchaser (Z) should obtain
registration
in her own name in terms of s 33. Z brought such
an application which was not opposed. The Registrar of Deeds filed a
report
in which he raised no objection. The case was covered by
s 33(1), because Z had acquired a contractual right to the
ownership
of the property and because transfer could not be effected
by Y to Z in the usual way since the land was registered in the name
of Z who had died many years previously and whose estate had been
finally wound up. Nevertheless, the appropriate person to have
brought the s 33 application was Y’s executor, because Y
had acquired ownership by acquisitive prescription and because
Y’s
executor was still in office and the deceased estate had not been
finally wound up. Upon obtaining registration in
terms of s 33,
the executor could then give transfer to Z in the usual way. In that
scenario, Y’s executor would pay
transfer duty in terms of
s 33(10) upon registration in the estate’s name, and
further transfer duty would be payable
on the transfer from Y’s
estate to Z. To have permitted Z to obtain registration directly
under s 33 would mean that
transfer duty would be paid only
once, to the prejudice of the fiscus. (After I put difficulties
along these lines to counsel
in the earlier case, the application
was withdrawn.)
Because of the transfer duty implications of s 33
applications, I believe it would be a salutary practice to require
the
rule nisi in such applications to be served on the South African
Revenue Service unless it is perfectly clear that the fiscus’
interests could not be prejudiced by the grant of the relief.
Conclusion and order
From what I have said above it is apparent that the
application must fail. I leave open, without expressing any opinion
thereon,
the possibility that the vesting of the exclusive use right
in the body corporate in terms of s 27(1)(c) so vested subject
to the personal obligation which the developer owed to Humphrey to
give him transfer of the right and that the body corporate
is thus
under a contractual obligation (delegated to it by operation of law)
to effect transfer to Humphrey who would then be
obliged to effect
transfer to the applicant. Whether in those circumstances, and
because of Humphrey’s disappearance, relief
could and should
be granted in terms of s 33 of the DR Act and at whose instance
is not something I am called upon to decide.
The application was not
presented on that basis and the body corporate has not had occasion
to consider its position in relation
to such a contention.
My order is that the application is dismissed with no
order as to costs.
______________________
ROGERS J
APPEARANCES
For Applicant: L VAN DER WALT
Instructed by:
STBB Smith Tabata Buchanan Boyes
Cape Town
1
In terms of
s 97(1)
of the
Deeds Registries
Act 47 of 1937
the Registrar should, I think, have received seven
days’ notice of the application for the issuing of the rule
nisi. However,
this failure should not in my view stand in the way
of the applicant, given that the Registrar has been cited as a
respondent
and has received timeous notice of the substantive relief
sought on the return day.
2
See, for example,
Walker
Engineering CC t/a Atlantic Steam Services v First Garment Rental
(Pty) Ltd (Cape)
2011 (5) SA 14
(WCC)
para 2;
Peninsula Eye Clinic (Pty) Ltd
v Newlands Surgery Clinic (Pty) Ltd & Others
2012
(4) SA 484
(WCC) para 20.
3
See
Suid-Afrikaanse
Nasionale
Lewensassuransiemaatskappy
v
Rainbow
Diamonds
(Edms)
Bpk
1982
(4) SA 633
(C) at 637H-638C and on appeal at
1984 (3) SA 1
(A) at
14F-I;
Ex
parte
Sengol
Investments
(Pty
)
Ltd
1982 (3) SA 474
(T) at 478F-G;
Peninsula
Eye Clinic supra
para 14.
4
See Van der Merwe
Sectional
Titles, Share Blocks and Time-sharing
Vol
1 para 11.5.3.
5
See, for example,
Ex
parte Glendale Sugar Millers (Pty) Ltd
1973
(2) SA 653
(N);
Ex parte Van der Horst
1978 (1) SA 299 (T).
6
For the position in regard to expropriation, see
s 8(1)
read with s3(3) of the Expropriation Act 63 of 1975 –
ownership vests in the State on the date of expropriation without
the need for registration.
7
And see also
Glendale
Sugar Millers supra
at 656H-657H.
8
See, for example,
Estate
J Cundill
(1880) 1 NLR 190
;
In
re Miller
(1881) 2 NLR 87
;
Ex
parte Durr
(1886) 4 SC 147
;
In
re Naidoo
(1902) 23 NLR 367
;
Ex
parte Meyer
1914 CPD 459
;
Ex
parte Vilikazi
1939 WLD 217.