Frikkie Pretorius Inc. and Another v Glass (AR528/09) [2010] ZAKZPHC 42 (26 April 2010)

Monies paid to an attorney’s trust account in respect of the sale of property jointly owned by two ex-spouses, is received for the benefit of both.  In this case, the Court was asked to adjudicate on the question whether part of the ex-husband’s half share could be paid to the ex-wife in respect of overdue maintenance on the strength of a garnishee order which accidentally misidentified the ex-husband.  To complicate the issue, the facts showed that the debt was never attached by the Sheriff as directed by the garnishee order.

The Judgment can be viewed here.

De Friedland Eiendomme (Pty) Ltd v Pretorius and Another (20744/2008) [2010] ZAGPPHC 95 (5 August 2010)

An owner using a stretch of a neighbouring property as an access route to his own garage for a period longer than 30 years, going as far as constructing a paved driveway over and fencing around the piece of land, without complaint on the side of the neighbour, assumed that he acquired that piece of land by virtue of prescription.  The Court however noted that over and above the passage of time, it had to be proved that the intention of the owner and his predecessors in title was to own the piece of land, not merely use it.  

The Judgment can be viewed here.

Zevenfontein Beleggings (Pty) Ltd v Morgan-Jones and Others (51254/2009) [2010] ZAGPJHC 54 (18 May 2010)

A tenant may enjoy a right of retention in respect of improvements to the leased property if he can prove that the expenses incurred in making the useful improvements increased the value of the property. However, the Court here confirmed that the purpose of such a right was not to enable an illegal occupier to continue occupying property, but rather to ensure that the occupier was not left empty-handed in respect of useful improvements that he may have effected in good faith.

The Judgment can be viewed here.

Bruyns v Makakatana Bay Lodge CC & another; Makakatana Bay Lodge CC v Bruyns & another [2010] JOL 26057 (KZP) (13 August 2010)

This judgment is an interesting read in that the Court held that a written promise by a municipality to a would-be objector to the effect that it would notify him if and when his neighbour lodges building plans for approval, had to be honoured. In addition, the promise created a legitimate expectation on the side of the would-be objector that his objections will be properly heard and addressed by the municipality.

Dakin NO & another v Cronje NO [2010] JOL 26009 (ECP) (26 February 2010)

A rental agreement creates reciprocal obligations on the side of both the landlord and the tenant. Amongst other things, it obliges the landlord to put the leased property to the disposal of the tenant prior to being entitled to claim rental.  However, as illustrated by the Court’s finding in this matter, if a tenant defends an action for arrear rental on the basis that he did not receive access to the leased premises, the burden to prove this fact lies with the tenant.

Van der Merwe NO and Others v Hydraberg Hydraulics CC and Others, Van der Merwe NO and Others v Bosman and Others (12742/09, 22837/09) [2010] ZAWCHC 129 (17 June 2010)

Where a trust document indicated that a majority decision of its three trustees will bind the trust, but also required all three trustees to be present when a resolution was made, a resolution by two trustees to sell the trust’s property cannot be said to constitute compliance with the trust’s prescripts. As such, the agreement that was signed in consequence of the resolution was invalid because the trust was not authorised to sign the agreement, as required in section 2(1) of the Alienation of Land Act of 1968.

The Judgment can be viewed here.

Le Roux NO and Other v Burger and Other (21020/2008) [2010] ZAWCHC 127 (10 June 2010)

It is a principle of our law of interpretation of servitudes that where there is ambiguity in the wording used, a Court may take historical facts (relating to the time when the servitude agreement was concluded) into account in order to ascertain the intention of the parties.  In this judgment the owners of a farm enjoying a servitude (allowing use of water from a dam on a neighbouring farm) argued that, based on their own interpretation of the wording of the servitude, the actions of their neighbour unlawfully interfered with their servitude rights. However, taking into account the facts that were known to the farm owners in 1965 when the servitude agreement was concluded, the Court rejected the servitude holder’s arguments.

The Judgment can be viewed here.

Amendments to the regulations of the Deeds Registries Act were published in Government Gazette 33413 on 02 August 2010.  These relate to a minimal increase in the deeds offices’ registration fees and will become effective on 01 September 2010.

The Gazette can be viewed here.

Van Aardt v Galway (1539/2005) [2010] ZAECGHC 62 (10 August 2010)

In this matter the Court was asked to make a finding on the validity of an option to purchase property that was granted by a lessor to a lessee. When the lessee exercised the option, confusion arose with regard to which parts of the leased property were included in the option. The result was the failure of the subsequent agreement of sale which was constituted when the lessee exercised the option.  This is yet another valuable reminder that in order to comply with section 2(1) of the Alienation of Land Act of 1968, sale agreements must be clear in respect of the identification of the property sold.

The Judgment can be viewed here.

Body Corporate Croftdene Mall v Ethekwini Municipality (16977/2009) [2010] ZAKZDHC 20 (1 May 2010)

In a technical judgment based on the wording of the Municipal Systems Act of 2000, the Court confirmed that the Act allows for a municipality to consolidate accounts at its behest, provided there was no dispute between it and the taxpayer at the time.  The Court here found that the wording of the Durban Extended Powers Ordinance of 1976 allows the municipality, in addition, to include in a single account different classes of charges of amounts due to it, whether or not these relate to more than one account. If any of these are outstanding in the consolidated account, then the services may be cut, despite the remaining accounts being fully paid up at the time.

The Judgment can be viewed here.

Nelson Mandela Bay Metropolitan Municipality v Fourie and Others (2958/09) [2010] ZAECPEHC 48 (10 August 2010)

In this judgment the Court confirmed the principle that the method of payment of the purchase price of immovable property must be dealt with in the agreement of sale, in order to comply with the provisions of the Alienation of Land Act of 1968.  Where a purchaser signed an agreement providing for an option 1 and 2 in respect of the method of payment and the purchaser proceeded to act in terms of the provisions of option 2, but without indicating his choice on the agreement itself, the agreement cannot be said to be compliant.  The judgment is a harsh reminder that non-compliance with the Alienation of Land Act often sinks an agreement of sale and sellers and purchasers must take every care to complete it thoroughly, so that the document unambiguously their intention.

The Judgment can be viewed here.

Eagle Creek Investments 138 (Pty) Ltd v Hibiscus Coast Municipality and Others (2806/2006) [2010] ZAKZDHC 24 (16 July 2010)

A developer, who thought he had all his ducks in a row for his proposed building project, did not count on the municipality stepping out of line when it transpired that the building plans it had approved were not in accordance with its own zoning regulations. To add insult to injury, the Court found that the applicable Ordinance did not allow for a damages claim against the municipality in respect of the developer’s wasted costs.

The Judgment can be viewed here.

Naidoo NO and Others v Naidoo and Another (AR 567/09) [2010] ZAKZPHC 41 (30 July 2010)

The judgment in this matter deals with the technicalities of the Prescription Act 68 of 1969.  For property practitioners it is valuable in that it confirms that the running of prescription commences as soon as the purchaser of property is entitled to demand transfer.

The Judgment can be viewed here.

RGS Properties (Pty) Ltd v Ethekwini Municipality (6210/2008) [2010] ZAKZDHC 27 (22 July 2010)

Whilst repeated formal objections, spanning several years, by a ratepayer regarding the valuation of his land remained unaddressed, the ratepayer’s apparent debt owing to the municipality escalated and the latter obtained default judgment against the ratepayer.  In allowing the ratepayer’s application for rescission of the judgment, the Court held that both the municipality and the ratepayer must find a solution to their rating problems within the confines of the law.  A letter merely reducing the valuation, issued by the municipality’s valuations service provider, did not meet the requirements of the Municipal Property Rates Act of 2004. The Act required that a properly constituted Valuations Appeal Board had to address each specific issue raised by the ratepayer in his objection.

The Judgment can be viewed here.

Publication of Explanatory Summary

In Government Gazette 33366, GN 685, dated 9 July 2010, the Department of Human Settlements published the Explanatory Summary to the Sectional Titles Schemes Management Bill, 2010.

The Bill aims to remove sectional title scheme management from the mandate of the Department of Rural Development and Land Reform and places it under the control and administration of the Department of Human Settlements.  In addition, the Bill seeks to remove the rules relating to sectional title scheme management and administration from the Sectional Titles Act 95 of 1986 so that all management provisions are contained in the Sectional Titles Schemes Management Bill.

View the Summary here. File size: 1.24MB

Publication of Explanatory Memorandum

On 9 July 2010, the Explanatory Summary of the Community Schemes Ombud Bill, 2010 was published in Government Gazette 33366, GN 686.

The principal objective of the Bill is to establish a Community Schemes Ombud Service that will provide a dispute resolution service for all community schemes in which there is governance by the community, a shared financial responsibility and joint use of land facilities.  These would include sectional title schemes, shareblock schemes, home owners' associations and housing schemes for retired persons.

The Explanatory Summary can be viewed here. (File size: 1.22MB)

Bonheur 76 General Trading (Pty) Ltd v Caribbean Estates (Pty) Ltd [2010] JOL 25576 (GSJ) (10 December 2009)

May a co-owner, in the absence of both knowledge and consent by the other co-owner, bond his undivided share in the property? The Court held that our law has no requirement that the other co-owner must consent or be aware of the registration of a bond, provided it was registered in respect of the mortgagor's share only.

Bedford Square Properties (Pty) Ltd v Liberty Group Limited and Others (41748/09) [2009] ZAGPJHC 81; 2010 (4) SA 99 (GSJ) (10 December 2009)

This judgment is an interesting illustration of our Courts’ approach to the question whether a notarial deed of restraint, limiting one party’s rights to lease its premises to specified retailers, should be regarded as contrary to public policy.  In this instance, the Court upheld the notarial deed prohibiting one party from renting premises to either Woolworths or Midas for an 11 year period.

The Judgment can be viewed here.

Rental Housing Amendment Bill, 2010

The Department of Human Settlements published the Rental Housing Amendment Bill in Government Gazette 33384, Notice 719, on 23 July 2010.

The amendments make it compulsory for all the provinces to establish Rental Housing Tribunals in their areas of jurisdiction.  It also requires every local authority to set up a Rental Housing Information Office.

The date on which the Bill will come into operation will be proclaimed in the Gazette on a future date.

View the Bill and Explanatory Memorandum here.

Holm v Sonland Ontwikkeling (Mpumalanga) (Edms) Bpk (58525/2008 ) [2010] ZAGPPHC 58 (9 July 2010)

Whilst this case is not directly property law related, it is reported here for its value in demonstrating the need for developers and owners of shopping mall complexes to ensure that the public is warned of any possible dangers on the premises.  Failing to comply with this duty of care, may cause the owner of the premises to be held liable for damages sustained by a visitor.

The Judgment can be viewed here.