South Africa Case Law

Bondev Midrand (Pty) Limited v Ramakgoba and Others ; In re : Bondev Midrand (Pty) Limited v Pulling Pulling (72637/2013 ; 7819/2014 ; 58/2014)

Bondev Midrand (Pty) Limited v Ramakgoba and Others ; In re : Bondev Midrand (Pty) Limited v Pulling Pulling (72637/2013 ; 7819/2014 ; 58/2014) [2016] ZAGPPHC 600 (14 April 2016)

Court

North Gauteng High Court, Pretoria

Case number

72637/2013 ; 7819/2014 ; 58/2014

Judge

Makhubele AJ

The court found that the applicant's claim for retransfer of property, based on the title condition, constitutes a debt as contemplated in the Prescription Act and is subject to a three-year prescription period under section 11(d). The registration of the title condition in the deed of transfer does not elevate the right to a real right, nor does it constitute a personal servitude subject to a 30-year prescription period. The court distinguished the present facts from those in Willow Waters and Mosikare, noting that the condition in question is limited to an 18-month period and does not bind…

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• Prescription Act
• Real Vs Personal Rights
• Title Conditions
• Deeds Registries Act
• Special Plea Of Prescription
• Leave To Appeal

Absa Bank Limited v Amien and Others (24878/2012)

Absa Bank Limited v Amien and Others (24878/2012) [2016] ZAGPJHC 180 (24 March 2016)

Court

South Gauteng High Court, Johannesburg

Case number

24878/2012

Judge

Modiba

The court dismissed Absa’s bid to declare a notarial tie agreement ineffective, holding that statutory cancellation procedures had to be followed.

• Notarial Tie Agreement
• Title Conditions
• Abolition Of Certain Title Conditions Act
• Agricultural Holdings
• Town Planning Scheme
• Notarial-tie-agreement

Bondev Midrand (Pty) Limited v Puling and Others (58/2014)

Bondev Midrand (Pty) Limited v Puling and Others (58/2014) [2015] ZAGPPHC 1127 (27 October 2015)

Court

North Gauteng High Court, Pretoria

Case number

58/2014

Judge

Makhubele

The High Court held that Bondev’s claim to re-transfer land for non-compliance with a building condition was a debt under the Prescription Act and had prescribed.

• Prescription Act
• Specific Performance
• Title Conditions
• Real Rights
• Personal Servitude
• Prescription

EThekwini Municipality v Mounthaven (Pty) Ltd (1985/2014)

EThekwini Municipality v Mounthaven (Pty) Ltd (1985/2014) [2015] ZAKZDHC 78 (30 September 2015)

Court

Kwazulu-Natal High Court, Durban

Case number

1985/2014

Judge

Mbatha

The court found that the applicant's claim for re-transfer of the property is a 'debt' as envisaged by the Prescription Act, and not a vindicatory claim immune from prescription. The conditions of title did not provide for automatic reversion of ownership to the applicant upon the respondent's failure to develop the property; rather, the applicant was entitled to demand re-transfer, which it failed to do within the prescribed period. Ownership of immovable property can only be transferred by registration, and the applicant's right to claim re-transfer was extinguished by prescription after th…

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• Prescription Act
• Reversionary Rights
• Transfer Of Immovable Property
• Rei Vindicatio
• Title Conditions

Western Crown Properties 113 (Pty) Ltd and Others v The Trustees From Time to Time of the Mkonza Family Trust and Another (13699/2013)

Western Crown Properties 113 (Pty) Ltd and Others v The Trustees From Time to Time of the Mkonza Family Trust and Another (13699/2013) [2015] ZAGPPHC 596 (30 July 2015)

Court

North Gauteng High Court, Pretoria

Case number

13699/2013

Judge

M D Mohlamonyane

The court found that the respondents were aware of the order and had failed to comply with its terms by not removing vehicles, material, machinery and equipment related to unlawful use of the property within the stipulated period. Photographic and satellite evidence demonstrated ongoing business and industrial activity, dumping of rubble, and storage of materials in contravention of the title conditions and environmental law. The respondents did not provide sufficient evidence to rebut the presumption of wilfulness and mala fides in their non-compliance. The supplementary affidavits and lette…

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• Civil Contempt Of Court
• Title Conditions
• Unlawful Land Use
• National Environmental Management Act
• Burden Of Proof
• Motion Proceedings

Cowin N.O. and Others v Kyalami Estate Homeowners Association and Others (499/2013)

Cowin N.O. and Others v Kyalami Estate Homeowners Association and Others (499/2013) [2014] ZASCA 221 (12 December 2014)

Court

Supreme Court of Appeal

Case number

499/2013

Judges

Maya, Theron, Saldulker, Mocumie, Gorven

The Supreme Court of Appeal held that the restrictive title condition in the deed of transfer, which prohibits the transfer of immovable property without a clearance certificate from the homeowners association, constitutes a real right. This right is binding not only on the property owner but also on successors in title, including liquidators of an insolvent estate. The amounts owed to the association do not qualify as 'taxes' under section 89(5) of the Insolvency Act, as previously determined by the court in Barnard NO v Regspersoon van Aminie en ‘n ander. The liquidators are therefore requi…

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• Real Rights In Land
• Title Conditions
• Homeowners Association Liabilities
• Insolvency Priorities
• Clearance Certificates

Willow Waters Homeowners Association (Pty) Ltd v Koka N.O. and Others (768/2013)

Willow Waters Homeowners Association (Pty) Ltd v Koka N.O. and Others (768/2013) [2014] ZASCA 220; [2015] 1 All SA 562 (SCA); 2015 (5) SA 304 (SCA) (12 December 2014)

Court

Supreme Court of Appeal

Case number

768/2013

Judges

Maya, Theron, Saldulker, Mocumie, Gorven

The Supreme Court of Appeal held that the embargo provision in the title deed constitutes a real right, not a mere personal right. The court found that the intention behind the embargo was to bind all successive owners, including trustees in insolvency, and that the restriction subtracts from the dominium of the property by limiting the owner's right to transfer. The embargo thus remains binding on the trustees and the Master in sequestration. The association's right to withhold a clearance certificate until outstanding levies and penalties are paid is enforceable against the insolvent estate…

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• Title Conditions
• Real Vs Personal Rights
• Embargo On Transfer
• Insolvency
• Clearance Certificates

Bondev Developments (Pty) Ltd v Plenty Properties 60 (Pty) Ltd and Others (43602/08)

Bondev Developments (Pty) Ltd v Plenty Properties 60 (Pty) Ltd and Others (43602/08) [2009] ZAGPPHC 346 (2 December 2009)

Court

North Gauteng High Court, Pretoria

Case number

43602/08

Judge

Fabricius AJ

The High Court held that a title condition requiring a dwelling to be built within a set period could not be enforced against the purchaser, and dismissed the re-transfer application with costs.

• Title Conditions
• Specific Performance
• Contractual Obligations
• Title-conditions
• Specific-performance
• Property-law

Trustees for the Time Being of the the Norwegian Settlers Church v Minister of Public Works (8049/06)

Trustees for the Time Being of the the Norwegian Settlers Church v Minister of Public Works (8049/06) [2009] ZAKZHC 10 (24 February 2009)

Court

High Courts - Kwazulu Natal

Case number

8049/06

Judge

Wallis

The court held that the abolition of title conditions removed the restraint on alienation, but not the use restrictions. The R750,000 payment was therefore lawful.

• Title Conditions
• State Land Disposal Act
• Abolition Of Certain Title Conditions Act
• Judicial Review
• Condictio Indebiti
• Title-conditions

Naude and Another v Terblanche and Others (14267/2006)

Naude and Another v Terblanche and Others (14267/2006) [2007] ZAWCHC 36; 2008 (4) SA 178 (C); (8 June 2007)

Court

Western Cape High Court, Cape Town

Case number

14267/2006

Judge

HJ Erasmus

The court held that the property in question is a separately titled, subdivided piece of land for which ministerial consent for subdivision had already been granted, subject to an endorsement requiring further ministerial consent for separate transfer or encumbrance. The prohibition in section 3(e)(i) of the Subdivision of Agricultural Land Act does not apply to this transaction, as the sale does not constitute a further prohibited subdivision. The endorsement operates as a title condition restricting registration actions, not the formation of contractual rights. Therefore, the sale contract…

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• Subdivision Of Agricultural Land
• Ministerial Consent
• Title Conditions
• Specific Performance