IN THE HIGH COURT OF SOUTH AFRICA
			(WESTERN CAPE HIGH COURT, CAPE TOWN)

								CASE. No.: 20645/08

In the matter between

DOLPHIN WHISPERS TRADING 10 (PTY) LTD			Applicant  

and 

THE REGISTAR OF DEEDS					Respondent 
THE BODY CORPORATE, SKILLIEPARK 2 			Second Respondent 

			JUDGEMENT DELIVERED ON 23 MARCH 2009

ZONDI, J

Introduction

[1] In this application the applicant, a property developer, seeks an order reviewing and setting aside the first respondent's refusal to register the sectional plans of extension in the Sectional Title Scheme known as Skilliepark 2 and to extend the sectional title register in the Scheme to include certain sections and an order directing the first respondent to register certain sectional plans of extension and extend a sectional title register.

[2] The first respondent opposes the relief sought by the applicant. The second respondent does not oppose the application.

Factual Background

[3] It is common cause that the applicant developed a sectional title scheme known as Skilliepark 2 ("the Scheme") on erf 473 Dwarskersbos situated in the Berg River Municipality, Division Piketberg, Province of the Western Cape, in accordance with the provisions of the Sectional Titles Act, no 95 of 1986 ("the Act"). The scheme was registered in the Deeds Registry, Cape Town on 1 April 2008.

[4] It was envisaged by the applicant that the development of the Scheme was to proceed in eight phases. The first phase comprises flats and garages which '

were transferred to purchasers as one section.

[5] The applicant effected the second phase by amending the Sectional Title Plan relating to the first phase by the inclusion of flats on the top floor. These flats in the second phase were transferred together with a garage as one section to the purchasers on 19 June 2008.

[6] The extension of section was effected in accordance with the provisions of section 24(6) of the Act. Section 24(6) provides as follows:
"(6) An application to the registrar for the registration of a sectional plan of extension of a section, shall be accompanied by-
(a)    two copies of the sectional plan of extension of a section;
(b) a schedule certified by a conveyancer of any registrable conditions imposed by the local authority or Premier when approving the extension;
(c) the sectional title deed in respect of the section to be extended;
(d) any sectional mortgage bond to which the section may be subject, together with a certificate by a conveyancer stating that there is not a deviation of more than 10 per cent in the participation quota of any section as a result of the extension, or if there is a deviation of more than 10 per cent, that the mortgagee of each section in the scheme has consented to the registration of the sectional plan of extension of a section; and.
(e)    such other documents and particulars as may be prescribed".

[7] The applicant, however, decided to extend the third and fourth phases of the development in terms of section 25 in stead of section 24(6). Extending the sections in terms of section 24(6) would have involved a cumbersome and an expensive process due to the fact the there were now considerably more owners and bond holders participating in the scheme whose consent had to be obtained before the extensions could be registered.

[13] According to the applicant the amendment became necessary as the purchaser in phase 4 of the development would receive transfer of two sections (a garage and a flat), each with its own participation quota, in stead of one section (a flat and a garage) reflected as one participation quota.

property.

The Issue

[19] The question is whether the first respondent acted unlawfully in rejecting the applicant's section 25(9) application.

Discussion

[20] It is common cause that on or about 15 October 2008, the applicant purporting to act in terms of section 25(9) of the Act, lodged a batch of documents relating to the extension of its development at the Deeds Registry, Cape Town, and thereby applied for the registration of its plan of extension and the inclusion of certain additional sections in the sectional title register.

[21] In terms of section (25)(11) of the Act when a developer has complied with the requirements of section 25 of the Act and of any other law, the Registrar of Deeds must register the sectional plan of extension, extend the sectional title register to include the sections depicted on the plan of extension and simultaneously with the registration of the sectional plan of extension issue to a developer a certificate of registered sectional title in respect of each section depicted on the sectional plan of extension.

[22] Section 25(13) of the Act creates certain obligations on the part of a developer desiring to exercise a right reserved in terms of section 25(1) of the Act. The provisions of the section require him to erect and divide the building or buildings into sections strictly in accordance with the documents submitted to the registrar in terms of section 25(2) of the Act due regard being had to changed circumstances making strict compliance impracticable.

[23] An owner of a unit in the scheme who is prejudiced by a developer's failure to comply with the provisions of section 25(13) is not without a remedy. He may apply to the Court for an appropriate relief.

[24] The provisions of section 25(13) will be quoted in full as the dispute between the parties is about their application. It provides as follows:

"(13) A developer or his successor in title who exercises a reserved right referred to in subsection (1), or a body corporate exercising the right referred to in subsection (6), shall be obliged to erect and divide the building or buildings into sections strictly in accordance with the documents referred to in subsection (2), due regard being had to changed circumstances which would make strict compliance impracticable, and an owner of a unit in the scheme who is prejudiced by his failure to comply in
this manner, may apply to the Court, whereupon the Court may order proper compliance with the terms of the reservation, or grant such other relief, including damages, as the Court may deem fit".

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[31] I may as well mention that the case which was argued by the applicant slightly differed to the one made out in its founding affidavit.

[32] At para14 of its founding affidavit the applicant admits that the amended participation quota differed to the original proposed participation quota in that the amended one contained more sections than those in the original participation quota. At para 25 the applicant explains how the differences in the two participation quotas came about:

"the amendments of the participation quota was necessary as a result of a mere technicality in the registration process. It is therefore clear that strict compliance with the original proposed participation quota was therefore impracticable in the circumstances..."

In other words technicality in the registration process was relied upon as a factor which rendered strict compliance with the original proposed participation quota impracticable.
[33] In the reply the applicant cites "changes in the current property market where buyers demand more fluidity and freedom in their purchase in the sectional title market" as a factor which necessitated changes to be effected to the original proposed participation quota.

[34] The general rule is that an applicant in the motion proceedings must stand or fall by his founding affidavit and the facts alleged in it and that although sometimes it is permissible to supplement the allegations contained in that affidavit, still the main foundation of the application is the allegation of facts stated there, because those are the facts that respondent is called upon to meet. It is not permissible to make out new grounds for an application in a replying affidavit.

[37] It is submitted by the applicant that the amendment of the participation quota was necessary as a result of a mere technicality in the registration and that in the circumstances strict compliance with the original proposed participation quota was therefore impracticable.

[38] The question is whether the applicant has shown that there were "changed circumstances" which made strict compliance with the documents lodged in terms of section 25(2) of the Act impracticable.

[40] It is also correct that the Act does not make it clear whether it is the registrar or a Court which is empowered to determine what conditions will constitute "changed circumstances".

was said:
"No developer of a sectional scheme would regard it as practicable to build units which he is unable to sell. The advice given to Mr Mendes by his marketers was that potential purchasers of units at Mirimar were no longer interested in buying double-storey units, in my opinion the term "changed circumstances" is wide enough to embrace changed market conditions, regard being had to the commercial context of the legislation".

●	the natural slope of the relevant property would have resulted in severely limiting the sea view of the plaintiff and that of the other owners of phase 1 units and some of whom had either insisted on or agreed to the erection of single storey units so as to afford them a better sea view.

•   it was no longer economically viable to build further units in strict compliance with the original section plan and;
•   Natural slope of the property and the natural slope of the adjoining properties would have rendered strict compliance impractical.

[47] In the present case the applicant presented no evidence to indicate why strict compliance was no longer possible or practical.

[49] In my view the first respondent cannot be said to have acted unlawfully when it refused to register the sectional plan of extension. It did not comply with the requirements of section 25(13) and no satisfactory explanation was given for non-compliance.

[50] In the circumstances I find that the first respondent did not act unlawfully when it refused to register the applicant's section 25(9) application.

The Order

[51] The application is dismissed with costs.