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REPUBLIC OF SOUTH AFRICA
Case Number : 85/2000
Reportable
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
In the matter between
WAHLOO SAND CC
First Appellant
EW ALBERTYN, JL VAN WYK AND
L
WEYER-HENDERSON REPRESENTING
THE LIZETTE WEYER-HENDERSON TRUST
Second Appellant
EW ALBERTYN, JL VAN WYK AND
TM VON BRATT
REPRESENTING
THE TOM VON BRATT FAMILY TRUST Third
Appellant
and
TRUSTEES OF THE HAMBLY PARKER TRUST First
Respondent
KROMGOED (EDMS) BPK
Second Respondent
THE REGISTRAR OF DEEDS
Third Respondent
COURT : VIVIER ADCJ; HOWIE AND OLIVIER JJA; CLOETE AND BRAND
AJJA
Date of hearing : 11 SEPTEMBER 2001
Date of delivery : 29 NOVEMBER
2001
CLOETE AJA
[1] This appeal
concerns competing personal rights which the three appellants on the one hand
and the first respondent on the other seek
to assert over immovable property
registered in the name of the second respondent.
[2] The facts and the
dispute fall within a narrow compass. The second respondent executed a notarial
deed granting praedial servitudes
of a right of way over property owned by it in
favour of neighbouring properties owned by the appellants. Before the
servitudes
were registered in the deeds registry the second respondent sold its
property to the first respondent. The first respondent refused
to consent to
registration of the servitudes. Hours before the property was to be transferred
into the first respondent’s
name the appellants obtained a rule nisi
which operated as an interim interdict precluding the third respondent, the
Registrar of Deeds, from proceeding with the registration.
The rule called upon
the respondents to show cause why the appellants should not be permitted to
register the servitudes over the
property prior to, or simultaneously with,
registration of the property into the name of the first respondent.
[3] Only the first respondent opposed the relief sought. It did so
inter alia on the basis that those who represented it in purchasing the
property from the second respondent had no knowledge of the notarial
deed
granting the servitudes. It must be accepted for the purposes of the appeal
that this allegation is factually correct: the
evidence to the contrary in the
replying affidavit was correctly struck out by the court a quo.
[4] On the extended return day the court a quo
discharged the rule, with costs, on the basis that the following
dicta of Hoexter JA in Frye’s (Pty) Ltd v Ries
1957(3) SA 575(A) at 582 C-D were decisive of the position (the emphasis was
added by the court a quo):
‘If a servient tenement is sold, the buyer is bound by the servitude registered in favour of the owner of the dominant tenement and it is immaterial whether he did or did not know of the existence of the servitude. Knowledge of a servitude on the part of a buyer is material only where the servitude has not been registered. If it has not been registered the buyer of the servient tenement is not bound by the servitude unless he had knowledge of it when he bought.’
The court a quo again relied upon
this passage in refusing leave to appeal.
[5] What the learned judge
a quo, with respect, failed to appreciate is that Hoexter JA was dealing
in the underlined passage with the position of a purchaser of immovable
property
who has obtained transfer of the property. The passage quoted was preceded by
the following remarks:
‘Generally speaking, no person can successfully attack the right of ownership duly and properly registered in the Deeds Office. If the registered owner asserts his right of ownership against a particular person he is entitled to do so, not because that person is deemed to know that he is the owner, but because he is in fact the owner by virtue of the registration of his right of ownership’.
In Grant and Another v Stonestreet and
Others 1968(4) SA 1(A) (a case also relied upon by the court a quo)
Ogilvie Thompson JA set out the legal position in similar terms at 20 A-C:
‘Having regard to our system of registration, the purchaser of immovable property who acquires clean title is not lightly to be held bound by an unregistered praedial servitude claimed in relation to that property. If, however, such purchaser has knowledge, at the time he acquires the property, of the existence of the servitude, he will ... be bound by it notwithstanding the absence of registration.’
[6] In the present
matter the first respondent was not yet the registered owner of the property
when the rule was granted and the court
a quo was incorrect in
discharging the rule on the basis which it did. It does not follow, however,
that the rule should have been confirmed
– which is the relief sought by
the appellants on appeal.
[7] If the rule is not confirmed, the
consequence will be that the first respondent will obtain specific performance
of its personal
right to clean transfer of the property. That is why the first
respondent has opposed the confirmation of the rule. On the other
hand, if the
rule is confirmed, the appellants will succeed in obtaining specific performance
of their personal rights to have the
servitudes registered over the property.
That is why the appellants have sought the confirmation of the rule. The fact
that the
appellants can only obtain an order for specific performance against
the second respondent whilst it is still the registered owner
of the property
– a contention advanced during argument - begs the question. The question
is whether the appellants should
be allowed to do so i.e. whether the appellants
should be allowed to obtain specific performance of their personal rights where
the
granting of such relief would derogate from the right of the first
respondent to obtain specific performance of its personal right.
The right
which the first respondent has against the second respondent is not merely to
obtain transfer of the property, but to
obtain clean transfer: it purchased the
property without servitudes. I see no difference in principle between the
present case and
a case where the registered owner sells immovable property and
thereafter grants a servitude over it to a third party before the
property is
registered in the name of the purchaser. In both cases the competing rights
cannot be reconciled. For that reason the
question which inevitably arises is
which right should enjoy preference when specific performance is sought of
either or both.
[8] The answer to the question depends upon whether
the current law relating to competing personal rights in the same property
(where
the later right was acquired without knowledge of the earlier) should be
extended to cover the present case.
[9] The final word has not been
spoken on whether knowledge of the subsequent right holder at the time of
registration of his right suffices
to enable the prior right holder to assert
his right, or whether such knowledge must have existed at the time the
subsequent right
holder acquired his right. The cases are not harmonious: see
e.g. Jansen v Fincham (1892) 9 SC 289 at 293; Ridler v Gartner
1920 TPD 249; Frye’s (Pty) Ltd v Ries, supra, loc. cit.; Grant v
Stonestreet, supra, at 16H - in fine; Dhayanundh v Narain 1983(1) SA
565(N) at 572 C – 574 B and 576 A-C. No argument was addressed to this
Court on the point and it would accordingly
be prudent to assume in favour of
the first respondent that knowledge at the time of registration is not
sufficient.
[10] This Court held in Krauze v van Wyk en Andere,
1986(1) SA 158(A) at 171 G-J that in the case of double sales, the maxim qui
prior est tempore potior est jure lies at the root of the preference
accorded to the first purchaser. The same maxim was applied by this Court in
the earlier case
of Barnhoorn NO v Duvenhage and Others, 1964(2) SA
486(A) at 494 H-in fine (referred to in the Krauze case at 171
I-J) where the competing personal rights were a cession of a fideicommissary
right to property and an option to purchase
the same property. More recently,
the maxim was applied in Croatia Meak CC v Millennium Properties (Pty) Ltd
(Sofokleos intervening); Sofokleous v Millennium Properties (Pty) Ltd and
Another 1998(4) SA 980(W) at 988 F where a lessor granted a lessee the
exclusive right to conduct a certain type of business in a shopping
complex and
then subsequently granted a lease in the same complex to another lessee whose
business competed with that of the first
lessee. Christie ‘The Law of
Contract in South Africa’ 4th ed (2001) at 610 supports the
general application of the maxim to all cases where there are competing claims
for specific performance.
[11] The position in the present matter is
somewhat different from that in the two decisions of this Court to which I have
just referred
in that in those cases enforcement of the one right would entirely
preclude specific performance of the other right, whereas in the
present matter
enforcement of the appellants’ rights would not preclude the first
respondent from obtaining transfer of the
property, although its rights of
ownership would be diminished. Save in the respect just mentioned, I see no
distinction between
the present case and the other two cases decided by this
Court and I do not consider the distinction to be one of principle. The
maxim
is essentially based in equity and in my view it would be both logical and
equitable to extend its operation to cover a case
such as the present. The
maxim was undoubtedly of limited application in the Roman-Dutch law and of even
more limited application
in the Roman law (see Mulligan, ‘Double Sales and
Frustrated Options’ (1948) 65 SALJ 564). But as Lord Tomlin said
in Pearl Assurance Co v Union Government 1934 AD 560 (PC) at 563 (in a
passage subsequently quoted with approval by this Court in Alpha Trust (Edms)
Bpk v van der Watt 1975(3) SA 734(A) at 749 E):
‘[The Roman-Dutch
law] is a virile living system of law, ever seeking, as every system must, to
adapt itself consistently with
its inherent basic principles to deal effectively
with the increasing complexities of modern organised society’.
In
addition, Stratford CJ said in Jajbhay v Cassim 1939 AD 537 at 542:
‘Now the Roman-Dutch law, which we must apply, is a living system capable of growth and development to allow adaptation to the increasing complexities and activities of modern civilised life. The instruments of that development are our own courts of law. In saying that of course I do not mean that it is permissible for a court of law to alter the law; its function is to elucidate, expound and apply the law. But it would be idle to deny that in the process of the exercise of those functions rules of law are slowly and beneficially evolved. That evolution, to be proper, must come from, and be in harmony with, sound first principles which are binding upon us. In relation to the present problem I do not regard the law to be well settled.’
(See
also Daniels v Daniels; Mackay v Mackay 1958(1) SA 513(A) at 522 G
– 523 B.)
[12] I accept that the maxim should not be applied
unfairly. This Court said so, in terms, in the Krauze case at 173 I-J.
It is in this context that the equities fall to be considered. In the present
matter it suffices to say that the
first respondent’s contentions (such as
they are) on the equities are unconvincing.
[13] The final question
which must be considered is the costs order made in the application to strike
out the allegations made for the
first time in the replying affidavit to the
effect that the first respondent had knowledge of the granting of the servitudes
when
he purchased the property. Those allegations would, in themselves, have
entitled the appellants to the relief they seek and the
appellants’
attempt to rely upon them in the court a quo was correctly met with the
application to strike them out. The costs order made in this regard was
entirely appropriate.
[14] It is for these reasons that I concur in the order made by Brand AJA.
......................
TD CLOETE
ACTING JUDGE OF APPEAL
CONCUR
VIVIER ADCJ
HOWIE JA
BRAND AJA
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