Bondev Developments (Pty) Ltd v Plenty Properties 60 (Pty) Ltd and Others (43602/08) [2009] ZAGPPHC 346 (2 December 2009)

Bondev Developments (Pty) Ltd v Plenty Properties 60 (Pty) Ltd and Others (43602/08) [2009] ZAGPPHC 346 (2 December 2009)

The court found that the title condition requiring the erection of a dwelling within a specified period was not capable of enforcement against the first respondent. The period for performance had expired before the respondent took transfer, and the applicant had not enforced the condition against the initial purchaser or the respondent. The applicant's subsequent conduct and correspondence failed to establish a clear and enforceable obligation. The court held that the condition, on its literal interpretation, could not be complied with and was not enforced within the relevant period. Therefore, the application for re-transfer of the property was dismissed.

Citation
[2009] ZAGPPHC 346
Parties
Applicant: Bondev Developments (Pty) Ltd; Respondent: Plenty Properties 60 (Pty) Ltd; Respondent: Registrar of Deeds, Pretoria; Respondent: ABSA Bank Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 December 2009
Case Number
43602/08
Procedural Posture
Civil Application / First Instance
Outcome
Application dismissed with costs.
Judges
Fabricius AJ
Legal Topics
Title Conditions, Specific Performance, Contractual Obligations
Land and Property Civil Procedure Title Conditions Specific Performance Contractual Obligations

Case Brief

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Parties

Bondev Developments (Pty) Ltd

Applicant

Plenty Properties 60 (Pty) Ltd

Respondent

Registrar of Deeds, Pretoria

Respondent

ABSA Bank Ltd

Respondent

Procedural Posture

Civil Application / First Instance

Legal Issues

  1. 1 Whether the applicant can enforce the title condition requiring the erection of a dwelling within a specified period against the first respondent.
  2. 2 Whether the time period for performance was capable of compliance by the first respondent.
  3. 3 Whether the applicant waived its right to enforce the condition or made enforcement impossible.

Ratio Decidendi

The court found that the title condition requiring the erection of a dwelling within a specified period was not capable of enforcement against the first respondent. The period for performance had expired before the respondent took transfer, and the applicant had not enforced the condition against the initial purchaser or the respondent. The applicant's subsequent conduct and correspondence failed to establish a clear and enforceable obligation. The court held that the condition, on its literal interpretation, could not be complied with and was not enforced within the relevant period. Therefore, the application for re-transfer of the property was dismissed.

Court Disposition

Application dismissed with costs.

Orders

  • The applicant's application is dismissed with costs.