Pieterse and Another v Hartswater Hotels (Pty) Ltd and Another (1322/2012) [2013] ZANCHC 45 (13 December 2013)

Pieterse and Another v Hartswater Hotels (Pty) Ltd and Another (1322/2012) [2013] ZANCHC 45 (13 December 2013)

The court found that the grounds for leave to appeal were a repetition of arguments already considered and rejected in the main judgment. There were no reasonable prospects of success on appeal. The applicants failed to demonstrate that the respondent was not entitled to apply for removal of restrictive conditions, as the Act permits any person with a real right to the property to do so. The argument regarding waiver was not persuasive, as delay in enforcing rights may constitute waiver. The rectification application was properly postponed pending the outcome of the removal application, as the current use of the property contravened registered conditions. Accordingly, leave to appeal was...

Citation
[2013] ZANCHC 45
Parties
Applicant: Petrus Francois Pieterse; Applicant: Petrus Johannes and Jacoba Adriana Janse Van Rensburg; Respondent: Hartswater Hotels (Pty) Ltd; Respondent: Registrar of Deeds: North West Province
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
13 December 2013
Case Number
1322/2012
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Full Bench Following Dismissal of Main Application and Counter Application Order.
Outcome
Application for leave to appeal dismissed with costs.
Judges
Phatshoane
Legal Topics
Long Term Lease, Removal of Restrictive Conditions, Waiver, Estoppel, Rectification of Contract, Leave to Appeal
Land and Property Civil Procedure Long Term Lease Removal of Restrictive Conditions Waiver Estoppel Rectification of Contract Leave to Appeal

Case Brief

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Parties

Petrus Francois Pieterse

Applicant

Petrus Johannes and Jacoba Adriana Janse Van Rensburg

Applicant

Hartswater Hotels (Pty) Ltd

Respondent

Registrar of Deeds: North West Province

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Full Bench Following Dismissal of Main Application and Counter Application Order.

Legal Issues

  1. 1 Whether the applicants are entitled to leave to appeal against the dismissal of their application for confirmation of cancellation of the notarial long-term lease agreement.
  2. 2 Whether the respondent, Hartswater Hotels (Pty) Ltd, is entitled to apply for the removal of restrictive conditions registered against the title deed.
  3. 3 Whether the counter-application for rectification of the notarial lease should have been dismissed or postponed.

Ratio Decidendi

The court found that the grounds for leave to appeal were a repetition of arguments already considered and rejected in the main judgment. There were no reasonable prospects of success on appeal. The applicants failed to demonstrate that the respondent was not entitled to apply for removal of restrictive conditions, as the Act permits any person with a real right to the property to do so. The argument regarding waiver was not persuasive, as delay in enforcing rights may constitute waiver. The rectification application was properly postponed pending the outcome of the removal application, as the current use of the property contravened registered conditions. Accordingly, leave to appeal was...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed with costs.