Ibest (Pty) Ltd and Another v Wadpadrand Extension 34 CC and Another (15340/07) [2007] ZAGPHC 279 (21 November 2007)

Ibest (Pty) Ltd and Another v Wadpadrand Extension 34 CC and Another (15340/07) [2007] ZAGPHC 279 (21 November 2007)

The court found that clause 17 of the deed of sale, as amended by the handwritten addition, created a binding contractual restriction prohibiting any development, including the construction of roads, within 50 metres of the boundary of the applicant's property. The evidence, including affidavits and an orthophoto map, established that no road existed at the time of sale and that the respondent's subsequent construction constituted a breach of contract. The respondent's argument that the clause only applied to future township development was rejected, as the purpose of the clause was to preserve the bushveld ambiance and eco-system adjacent to the applicant's property. The respondent's...

Citation
[2007] ZAGPHC 279
Parties
Applicant: Ibest (Pty) Ltd; Applicant: Hans George Wilhelm du Plessis; Respondent: Wapadrand Extension 34 CC; Respondent: Wapadrand Estate Homeowners Association
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
21 November 2007
Case Number
15340/07
Procedural Posture
Specific Performance Application / Judgment
Outcome
Application granted. The first respondent is ordered to comply with clause 17 of the deed of sale and to pay costs on an attorney and client scale.
Judges
Murphy
Legal Topics
Specific Performance, Contractual Interpretation, Restrictive Covenant, Development Facilitation Act, Attorney and Client Costs
Land and Property Civil Procedure Specific Performance Contractual Interpretation Restrictive Covenant Development Facilitation Act Attorney and Client Costs

Case Brief

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Parties

Ibest (Pty) Ltd

Applicant

Hans George Wilhelm du Plessis

Applicant

Wapadrand Extension 34 CC

Respondent

Wapadrand Estate Homeowners Association

Respondent

Procedural Posture

Specific Performance Application / Judgment

Legal Issues

  1. 1 Whether clause 17 of the deed of sale, including the handwritten addition, prohibits the construction of roads within 50 metres of the boundary of the applicant's property.
  2. 2 Whether the first respondent breached its contractual obligation by constructing a road within the restricted area.
  3. 3 Whether the applicants are entitled to specific performance and attorney and client costs.

Ratio Decidendi

The court found that clause 17 of the deed of sale, as amended by the handwritten addition, created a binding contractual restriction prohibiting any development, including the construction of roads, within 50 metres of the boundary of the applicant's property. The evidence, including affidavits and an orthophoto map, established that no road existed at the time of sale and that the respondent's subsequent construction constituted a breach of contract. The respondent's argument that the clause only applied to future township development was rejected, as the purpose of the clause was to preserve the bushveld ambiance and eco-system adjacent to the applicant's property. The respondent's...

Court Disposition

Application granted. The first respondent is ordered to comply with clause 17 of the deed of sale and to pay costs on an attorney and client scale.

Orders

  • The first respondent is ordered to comply with the provisions of clause 17 of the deed of sale entered into between itself and the first applicant, dated 12 October 2001, by removing all man made structures, including but not limited to roads situated within the area depicted by the figure FDCEF on annexure F8 to...
  • The first respondent is ordered to pay the applicants' costs on a scale as between attorney and client.