Bondev Midrand (Pty) Ltd v Ndlovu and Others (47619/2014) [2016] ZAGPPHC 137 (7 March 2016)

Bondev Midrand (Pty) Ltd v Ndlovu and Others (47619/2014) [2016] ZAGPPHC 137 (7 March 2016)

The respondents failed to comply with the building-period condition stipulated in both the sale agreement and the extension agreement. The applicant did not waive its rights, and mere delay does not constitute waiver. The respondents' arguments regarding impossibility of performance and lack of knowledge of the proclamation date are unfounded, as the extension agreement acknowledged the relevant dates and provided a further opportunity to comply. Payment of penalty levies to the Homeowners Association does not constitute compliance with the applicant's contractual requirements. The respondents have not established a right to compel the applicant to consent to sale to third parties. The...

Citation
[2016] ZAGPPHC 137
Parties
Applicant: Bondev Midrand (Pty) Ltd; Respondent: Matshediso Ndlovu; Respondent: Mompati Neybezela Baiphethi; Respondent: Registrar of Deeds, Pretoria; Respondent: Nqaba Guarantee SPV (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 March 2016
Case Number
47619/2014
Procedural Posture
Civil Application / Judgment After Opposed Application and Counterapplication
Outcome
Application granted; counterapplication dismissed with costs.
Judges
K La M Manamela
Legal Topics
Retransfer of Property, Lex Commissoria, Breach of Contract, Building Period Condition, Waiver of Rights, Impossibility of Performance
Land and Property Civil Procedure Retransfer of Property Lex Commissoria Breach of Contract Building Period Condition Waiver of Rights Impossibility of Performance

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Parties

Bondev Midrand (Pty) Ltd

Applicant

Matshediso Ndlovu

Respondent

Mompati Neybezela Baiphethi

Respondent

Registrar of Deeds, Pretoria

Respondent

Nqaba Guarantee SPV (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Judgment After Opposed Application and Counterapplication

Legal Issues

  1. 1 Whether the respondents breached the building-period condition in the sale agreement and title deed.
  2. 2 Whether the applicant is entitled to retransfer of the property under the lex commissoria clause.
  3. 3 Whether the applicant waived its rights to enforce the building-period condition.

Ratio Decidendi

The respondents failed to comply with the building-period condition stipulated in both the sale agreement and the extension agreement. The applicant did not waive its rights, and mere delay does not constitute waiver. The respondents' arguments regarding impossibility of performance and lack of knowledge of the proclamation date are unfounded, as the extension agreement acknowledged the relevant dates and provided a further opportunity to comply. Payment of penalty levies to the Homeowners Association does not constitute compliance with the applicant's contractual requirements. The respondents have not established a right to compel the applicant to consent to sale to third parties. The...

Court Disposition

Application granted; counterapplication dismissed with costs.

Orders

  • The first and second respondents are ordered to take all necessary steps for re-transfer of Erf [...] Midstream Estate Extension 31 Township to the applicant.
  • The first and second respondents are to bear the costs associated with the re-transfer.