GC Property Developers CC v Watt (35025/2011) [2012] ZAGPJHC 49; [2012] 3 All SA 426 (GSJ) (30 March 2012)

GC Property Developers CC v Watt (35025/2011) [2012] ZAGPJHC 49; [2012] 3 All SA 426 (GSJ) (30 March 2012)

The court found that the applicant's request for the respondent's consent to release certain sectional title units from the mortgage bond prior to transfer of twelve units to the respondent was not supported by the express terms of the deed of sale or the mortgage bond. Clause 7.4 clearly stipulates that cancellation of the mortgage bond is only triggered upon transfer of twelve sectional title units to the respondent or her nominees. The applicant's attempt to secure partial release of security would diminish the respondent's rights and was not contemplated by the contract. The issues raised by the applicant had already been decided by Kgomo J, whose order was subject to appeal,...

Citation
[2012] ZAGPJHC 49
Parties
Applicant: GC Property Developers CC; Respondent: Ena Watt
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
30 March 2012
Case Number
35025/2011
Procedural Posture
Urgent Application / Judgment on Application for Relief Pending Appeal
Outcome
Application dismissed with costs.
Judges
Mokgoatlheng
Legal Topics
Sectional Title Act, Mortgage Bond Security, Specific Performance, Res Judicata, Lis Pendens
Land and Property Civil Procedure Sectional Title Act Mortgage Bond Security Specific Performance Res Judicata Lis Pendens

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Parties

GC Property Developers CC

Applicant

Ena Watt

Respondent

Procedural Posture

Urgent Application / Judgment on Application for Relief Pending Appeal

Legal Issues

  1. 1 Whether the respondent is obliged to consent to the release of certain sectional title units from the operation of the mortgage bond prior to transfer of twelve units to her as per the deed of sale.
  2. 2 Whether the applicant is entitled to partial cancellation of the mortgage bond to facilitate transfer of sold units to third parties.
  3. 3 Whether the issues raised are res judicata or lis pendens due to the pending appeal against Kgomo J's order.

Ratio Decidendi

The court found that the applicant's request for the respondent's consent to release certain sectional title units from the mortgage bond prior to transfer of twelve units to the respondent was not supported by the express terms of the deed of sale or the mortgage bond. Clause 7.4 clearly stipulates that cancellation of the mortgage bond is only triggered upon transfer of twelve sectional title units to the respondent or her nominees. The applicant's attempt to secure partial release of security would diminish the respondent's rights and was not contemplated by the contract. The issues raised by the applicant had already been decided by Kgomo J, whose order was subject to appeal,...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.
  • The applicant is ordered to pay the respondent's costs.