Absa Bank Limited v Amien and Others (24878/2012) [2016] ZAGPJHC 180 (24 March 2016)

Absa Bank Limited v Amien and Others (24878/2012) [2016] ZAGPJHC 180 (24 March 2016)

The court found that the notarial tie agreement and other conditions of title registered against the properties fall squarely within the exclusions set out in section 2 of the Abolition of Certain Title Conditions Act 43 of 1999, as they were imposed under a town planning scheme, a land use control mechanism, and...

Source-derived case information.

Citation
[2016] ZAGPJHC 180
Parties
Applicant: Absa Bank Limited; Respondent: Nhazlee Amien; Respondent: Rowan Harrison; Respondent: George Meyer; Respondent: Registrar of Deeds, Johannesburg; Respondent: Sheriff of the Court for the District of Roodepoort; Respondent: City of Johannesburg
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
24 March 2016
Case Number
24878/2012
Procedural Posture
Civil Application / Judgment on Application for Order Declaring Notarial Tie Agreement of No Force or Effect
Outcome
Application dismissed with costs.
Judges
Modiba
Legal Topics
Notarial Tie Agreement, Title Conditions, Abolition of Certain Title Conditions Act, Agricultural Holdings, Town Planning Scheme
Land and Property Civil Procedure Notarial Tie Agreement Title Conditions Abolition of Certain Title Conditions Act Agricultural Holdings Town Planning Scheme

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Parties

Absa Bank Limited

Applicant

Nhazlee Amien

Respondent

Rowan Harrison

Respondent

George Meyer

Respondent

Registrar of Deeds, Johannesburg

Respondent

Sheriff of the Court for the District of Roodepoort

Respondent

City of Johannesburg

Respondent

Procedural Posture

Civil Application / Judgment on Application for Order Declaring Notarial Tie Agreement of No Force or Effect

Legal Issues

  1. 1 Whether the Abolition of Certain Title Conditions Act 43 of 1999 applies to the notarial tie agreement registered against the properties.
  2. 2 Whether the applicant is entitled to an order declaring the notarial tie agreement to be of no force or effect without following statutory cancellation procedures.
  3. 3 Whether the conditions of title fall within the exclusions set out in section 2 of the ACTC Act.

Ratio Decidendi

The court found that the notarial tie agreement and other conditions of title registered against the properties fall squarely within the exclusions set out in section 2 of the Abolition of Certain Title Conditions Act 43 of 1999, as they were imposed under a town planning scheme, a land use control mechanism, and affect mineral rights. The applicant failed to follow the statutory procedure for cancellation as required by the Agricultural Holdings (Transvaal) Registration Act 22 of 1919, and the MEC was not cited as a party. The court held that it is not empowered to usurp the statutory powers of the MEC, especially where additional town planning and servitude factors may be relevant. The...

Court Disposition

Application dismissed with costs.

Orders

  • Prayer 2.1 of the notice of motion is amended to read: 'Holding 32 Amorosa Agricultural Holdings Registration Division I.Q to and in the name of the Second Defendant.'
  • The application stands to be dismissed with costs.