Bondev Midrand (Pty) Limited v Rasalanavho and Others (47616/2014) [2015] ZAGPPHC 538 (10 June 2015)

Bondev Midrand (Pty) Limited v Rasalanavho and Others (47616/2014) [2015] ZAGPPHC 538 (10 June 2015)

The applicant established a right to enforce the restrictive condition of title requiring the respondents to build a residence within the extended period. The respondents failed to comply, and no further written extension was granted. The applicant's claim has not prescribed, as the prescription period commenced on 9 April 2013 and the application was brought within three years. The respondents did not properly challenge authority to bring proceedings, and any typographical errors in the founding affidavit were rectified without prejudice. The argument of tacit extension fails, as the condition requires written extension, and there is no evidence of waiver. The balance of convenience is...

Citation
[2015] ZAGPPHC 538
Parties
Applicant: Bondev Midrand (Pty) Limited; Respondent: Mtshavheni Gideon Rasalanavho; Respondent: Thabelo Rasalanavho; Respondent: Registrar of Deeds, Pretoria; Respondent: Standard Bank of South Africa
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
10 June 2015
Case Number
47616/2014
Procedural Posture
Urgent Application / Judgment
Outcome
Application granted. The respondents are ordered to re-transfer the property to the applicant at the original purchase price, subject to specified deductions and the rights of the bondholder. Costs awarded against the first and second respondents.
Judges
A Dodson
Legal Topics
Restrictive Conditions of Title, Specific Performance, Prescription Act, Condonation of Late Filing
Land and Property Civil Procedure Restrictive Conditions of Title Specific Performance Prescription Act Condonation of Late Filing

Case Brief

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Parties

Bondev Midrand (Pty) Limited

Applicant

Mtshavheni Gideon Rasalanavho

Respondent

Thabelo Rasalanavho

Respondent

Registrar of Deeds, Pretoria

Respondent

Standard Bank of South Africa

Respondent

Procedural Posture

Urgent Application / Judgment

Legal Issues

  1. 1 Whether the respondents are obliged to re-transfer the property to the applicant due to breach of a restrictive condition of title.
  2. 2 Whether the applicant's claim for re-transfer has prescribed under the Prescription Act.
  3. 3 Whether the period for completion of construction was tacitly extended by conduct.

Ratio Decidendi

The applicant established a right to enforce the restrictive condition of title requiring the respondents to build a residence within the extended period. The respondents failed to comply, and no further written extension was granted. The applicant's claim has not prescribed, as the prescription period commenced on 9 April 2013 and the application was brought within three years. The respondents did not properly challenge authority to bring proceedings, and any typographical errors in the founding affidavit were rectified without prejudice. The argument of tacit extension fails, as the condition requires written extension, and there is no evidence of waiver. The balance of convenience is...

Court Disposition

Application granted. The respondents are ordered to re-transfer the property to the applicant at the original purchase price, subject to specified deductions and the rights of the bondholder. Costs awarded against the first and second respondents.

Orders

  • The first and second respondents are ordered to take the necessary steps to re-transfer Erf 2662, Midstream Estate, Extension 31 Township, Registration Division JR, Gauteng, held by deed of transfer T37212/2012, to the applicant.
  • The first and second respondents are to bear the costs of such re-transfer.