McKersie v SDD Developments (Western Cape) (Pty) Ltd and Others (21283/12) [2013] ZAWCHC 46; 2013 (5) SA 471 (WCC) (6 March 2013)

McKersie v SDD Developments (Western Cape) (Pty) Ltd and Others (21283/12) [2013] ZAWCHC 46; 2013 (5) SA 471 (WCC) (6 March 2013)

The applicant cannot obtain the relief sought because ownership of the parking bay vested in the body corporate upon the developer's deregistration and transfer of the last section. The applicant does not have a right to ownership within the meaning of section 33(1) of the Deeds Registries Act, as he has no contract with the body corporate and cannot compel transfer. The body corporate, as current owner, could transfer the right if willing, but this must occur in the usual manner, not by court order under section 33. The applicant's contractual claim against Humphrey is for damages, not transfer. The application fails to meet the jurisdictional requirements of section 33(1), and the court...

Citation
[2013] ZAWCHC 46
Parties
Applicant: William Malcolm McKersie; Respondent: SDD Developments (Western Cape) (Pty) Ltd; Respondent: Harbour Terrace Sectional Title Scheme; Respondent: Registrar of Deeds, Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
6 March 2013
Case Number
21283/12
Procedural Posture
Urgent Application / Return Day of Rule Nisi; Application for Declaratory and Registration Order
Outcome
Application dismissed with no order as to costs.
Judges
Rogers
Legal Topics
Sectional Titles Act, Exclusive Use Area Registration, Deeds Registries Act Section 33, Company Deregistration, Vesting of Real Rights
Land and Property Civil Procedure Sectional Titles Act Exclusive Use Area Registration Deeds Registries Act Section 33 Company Deregistration Vesting of Real Rights

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Parties

William Malcolm McKersie

Applicant

SDD Developments (Western Cape) (Pty) Ltd

Respondent

Harbour Terrace Sectional Title Scheme

Respondent

Registrar of Deeds, Cape Town

Respondent

Procedural Posture

Urgent Application / Return Day of Rule Nisi; Application for Declaratory and Registration Order

Legal Issues

  1. 1 Does the applicant have a right to registration of an exclusive use area (parking bay) under section 33 of the Deeds Registries Act?
  2. 2 Did ownership of the exclusive use area vest in the body corporate upon developer deregistration under the Sectional Titles Act?
  3. 3 Is the applicant unable to obtain registration in the usual manner, justifying relief under section 33?

Ratio Decidendi

The applicant cannot obtain the relief sought because ownership of the parking bay vested in the body corporate upon the developer's deregistration and transfer of the last section. The applicant does not have a right to ownership within the meaning of section 33(1) of the Deeds Registries Act, as he has no contract with the body corporate and cannot compel transfer. The body corporate, as current owner, could transfer the right if willing, but this must occur in the usual manner, not by court order under section 33. The applicant's contractual claim against Humphrey is for damages, not transfer. The application fails to meet the jurisdictional requirements of section 33(1), and the court...

Court Disposition

Application dismissed with no order as to costs.

Orders

  • The application is dismissed.
  • No order as to costs.