Frantrade Nineteen (Pty) Limited and Others Realty Corporation of South Africa Limited and Others (20400/2018) [2019] ZAGPJHC 313 (22 February 2019)

Frantrade Nineteen (Pty) Limited and Others Realty Corporation of South Africa Limited and Others (20400/2018) [2019] ZAGPJHC 313 (22 February 2019)

The court held that the restrictive condition registered against the title deed constitutes a personal servitude, which upon registration becomes a real right in favour of the respondent. The applicants, as owners, are not beneficiaries as defined in the Immovable Property (Removal or Modification of Restrictions) Act, 94 of 1965, since their interest arises from ownership and not from a will or other testamentary instrument. The Act does not confer standing on owners to seek removal of such restrictions; only beneficiaries under a will or testamentary instrument may do so. The court lacks inherent jurisdiction to remove or vary the restrictive condition without the consent of all...

Citation
[2019] ZAGPJHC 313
Parties
Applicant: Frantrade Nineteen (Pty) Limited; Applicant: John Joseph Welch; Applicant: Geoffrey Cornelis Meter; Applicant: Beverley Ann Dunn; Respondent: Realty Corporation of South Africa Limited; Respondent: Evan Paul Dryen; Respondent: Candice Lynn Dryden; Respondent: Gareth Dryden; Respondent: The Master of the High Court Johannesburg; Respondent: The Registrar of Deeds Pretoria; Respondent: Midvaal Municipality
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
22 February 2019
Case Number
20400/2018
Procedural Posture
Review Application / Opposed Motion; Judgment on Merits
Outcome
Application dismissed with costs, including costs of senior counsel.
Judges
Twala ML
Legal Topics
Restrictive Conditions, Personal Servitude, Title Deed Registration, Locus Standi, Removal of Restrictions
Land and Property Civil Procedure Restrictive Conditions Personal Servitude Title Deed Registration Locus Standi Removal of Restrictions

Case Brief

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Parties

Frantrade Nineteen (Pty) Limited

Applicant

John Joseph Welch

Applicant

Geoffrey Cornelis Meter

Applicant

Beverley Ann Dunn

Applicant

Realty Corporation of South Africa Limited

Respondent

Evan Paul Dryen

Respondent

Candice Lynn Dryden

Respondent

Gareth Dryden

Respondent

The Master of the High Court Johannesburg

Respondent

The Registrar of Deeds Pretoria

Respondent

Midvaal Municipality

Respondent

Procedural Posture

Review Application / Opposed Motion; Judgment on Merits

Legal Issues

  1. 1 Whether the restrictive condition on the title deed can be removed without the consent of the beneficiary.
  2. 2 Whether the applicants have locus standi under the Immovable Property (Removal or Modification of Restrictions) Act, 94 of 1965.
  3. 3 Whether the restrictive condition constitutes a personal servitude and if so, whether it confers a real right.

Ratio Decidendi

The court held that the restrictive condition registered against the title deed constitutes a personal servitude, which upon registration becomes a real right in favour of the respondent. The applicants, as owners, are not beneficiaries as defined in the Immovable Property (Removal or Modification of Restrictions) Act, 94 of 1965, since their interest arises from ownership and not from a will or other testamentary instrument. The Act does not confer standing on owners to seek removal of such restrictions; only beneficiaries under a will or testamentary instrument may do so. The court lacks inherent jurisdiction to remove or vary the restrictive condition without the consent of all...

Court Disposition

Application dismissed with costs, including costs of senior counsel.

Orders

  • The application is dismissed.
  • The applicants are liable to pay the costs of the respondents jointly and severally, the one paying the other to be absolved, including the costs of senior counsel.