The law reports – September 2017

September 1st, 2017

Heinrich Schulze BLC LLB (UP) LLD (Unisa) is a professor of law at Unisa.

July 2017 (4) South African Law Reports (pp 1 – 339); [2017] 1 All South African Law Reports January (pp 1 – 312); [2017] 2 All South African Law Reports April (pp 1 – 334); [2017] 2 All South African Law Reports June (pp 677–996)

This column discusses judgments as and when they are published in the South African Law Reports, the All South African Law Reports and the South African Criminal Law Reports. Readers should note that some reported judgments may have been overruled or overturned on appeal or have an appeal pending against them: Readers should not rely on a judgment discussed here without checking on that possibility – Editor.


CC: Constitutional Court

ECP: Eastern Cape Local Division, Port Elizabeth

GP: Gauteng Division, Pretoria

SCA: Supreme Court of Appeal

WCC: Western Cape Division, Cape Town

Administration of estates

Maintenance of surviving spouse: The issues to be determined in Friederich and Others v Smit NO and Others 2017 (4) SA 144 (SCA) arose from the estate of the late Mr Friedrich (the deceased). The appellants (the applicants in the court a quo) were all adult children of the deceased from a previous marriage. The second respondent, Mrs Friedrich, was married to the deceased in 2003 out of community of property without accrual, and their marriage still subsisted at the time of his death in September 2006. The deceased left a Will in which he appointed the appellants as his only heirs. The respondent, one Smit, was appointed as the executor of the deceased’s estate.

In November 2006 Mrs Friedrich filed a claim with the executor against the deceased’s estate in terms of s 2 of the Maintenance of Surviving Spouses Act 27 of 1990 (the Surviving Spouses Act) in the amount of R 8 454 760, which she subsequently reduced to R 4 468 519,24. The executor allowed Mrs Friedrich’s claim in the amount of R 4 468 519,24 and included it in the liquidation and distribution account (the L and D account). It is common cause that after the amount allocated to Mrs Friedrich in the L and D account, and the other claims of the creditors had been allowed, the remaining amount for distribution among the appellants was R 886 785.

The applicants objected to the inclusion in the L and D account of Mrs Frederich’s claim for maintenance. The master declined to direct its removal, and the applicants applied to set aside his decision under s 35(10) of the Administration of Estates Act 66 of 1965. The court a quo dismissed their application.

On appeal to the SCA, the first issue before Tshiqi JA was the nature of the appeal given by s 35(10). The court held that it was an appeal in the wide sense, where the court could consider the matter afresh and make any order it deemed fit.

The second issue was whether Mrs Frederich had proved she needed maintenance. The court held that Mrs Friedrich’s evidence failed to address the factors listed in s 3(b) and (c) of the Surviving Spouses Act. She did not testify that she could not make ends meet and was, therefore, in need of maintenance. She did not provide any documentary proof to show her expenditure, accounts and bank records. The trial court was kept in the dark about her lifestyle and standard of living during the duration of the marriage and after the death of the deceased.

Further, her reasons why she was unemployed were unconvincing. She had not worked since the deceased’s death and she stated that she applied for approximately ten to 12 jobs. However, not a single one of the job applications was in writing. According to her, she was unemployable because of her age. She failed to provide documentary evidence to show that she had indeed applied for employment and was turned down.

The court further reasoned that she offered no explanation on what she meant to do or had done with the amount of approximately R 1,4 million left from the R 3 million she had received from the executor. There was also no documentary evidence to substantiate how the amount of R 1,9 million was spent.

She accordingly failed to prove that she was entitled to reasonable maintenance. The executor of the estate of the deceased was ordered to amend the L and D account by removing the claim of Mrs Friedrich in toto.

The appeal was thus upheld with costs.

Administrative law

Right of university to change language policy: In University of the Free State v Afriforum and Another 2017 (4) SA 283 (SCA); [2017] 2 All SA 808 (SCA) the facts were as follows: The appellant university, University of the Free State (UFS), adopted a new language policy in terms of which Afrikaans and English as parallel mediums of instruction were replaced by solely English as the primary medium. The respondent, Afriforum, took UFS’ decision on review. The High Court held that UFS’ decision was an unlawful administrative action as defined in s 1 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and set it aside.

Afriforum’s concern turned on the argument that UFS’ new language policy, which preferred English over Afrikaans, and the adoption of similar policies at other universities, would erode the position of Afrikaans as a language of instruction and its constitutionally protected status as an official language.

The High Court and both parties approached the matter on the basis that the impugned decision constituted administrative action as defined in s 1 of PAJA.

On appeal to the SCA, Cachalia JA held that Afriforum’s review application was aimed at challenging the decision to adopt the policy, which the UFS council had the authority to decide under s 27(2) of the Higher Education Act 101 of 1997 (HEA). The policy itself was not impugned, nor was it sought to be set aside. It was solely UFS’ executive decision to determine its language policy that was attacked and not any of its administrative actions flowing from the adoption of the policy.

The question then was whether, objectively viewed, the decision was rationally connected to the purpose for which the power was given. That is a factual inquiry. The court pointed out that it had to be careful not to interfere with the exercise of a power simply because they disagreed with the decision or consider that the power was exercised inappropriately. If, therefore, the decision-maker acted within its powers, and considered the relevant material in arriving at a decision so that there was a rational link between the power given, the material before it and the end sought to be achieved, that would have met the requirement of rationality. However, if a decision-maker had misconstrued its power, that would offend the principle of legality and render the decision reviewable.

Afriforum’s argument that UFS failed to take into account the requirements of s 29(2) of the Constitution and s 27(2) of the HEA was without merit, because the evidence made it clear that the university had taken both provisions into account. The court a quo, therefore, erred in upholding the said argument.

On appeal to the SCA Afriforum advanced another, separate argument.  They argued that in abandoning the original dual-medium language policy in order to address the problem of racial segregation, UFS had to consider all reasonable educational alternatives before departing from the original policy. However, Afriforum did not explain what other means were available to UFS.

In response to this argument by Afriforum, UFS pointed out that the right to receive an education in a language of choice hinged on whether the attainment of the right was reasonably practicable, and that the latter element had to take into account constitutional norms. UFS’s research showed that the demographic and language profile of its student population had changed with ever-increasing numbers of black students opting for English-medium language instruction, and correspondingly fewer numbers of white Afrikaans students seeking Afrikaans-medium instruction. UFS’ assessment that it was no longer reasonably practicable to continue with the original language policy.

On the issue of costs, Afriforum relied on what has become known as the Biowatch principle (which was acknowledged in Biowatch Trust v Registrar, Genetic Resources and Others 2009 (6) SA 232 (CC)) to avoid a costs order against unsuccessful litigants who seek to vindicate constitutional rights. The SCA upheld that submission.

Time limit for bringing a review application: In ASLA Construction (Pty) Ltd v Buffalo City Metropolitan Municipality (South Africa Civics Organisation as amicus curiae) [2017] 2 All SA 677 (SCA) the respondent municipality (the municipality) awarded a contract to the appellant (the plaintiff in the court a quo). The plaintiff instituted action against the municipality based on payment certificates issued in terms of two contracts between them. The municipality opposed the relief sought. It argued that the payment certificates relied on were predicated on a valid appointment of the engineers who issued the certificates, which in turn depended on the validity of the contract. The municipality alleged that the conclusion of the contracts were unlawful.

The court a quo upheld the contentions of the municipality, and declared the relevant contract invalid, set it aside and declared the payment certificates issued in terms of the contract void ab initio. The plaintiff’s action for provisional sentence was dismissed with costs.

On appeal to the SCA, Swain JA held that central to the dispute before the court a quo was the plaintiff’s contention that the municipality had failed to timeously bring the application for the review and setting aside of the relevant contract. Section 7 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) provides that such an application must be brought within 180 days of the award being made. The municipality averred that the application had indeed been brought within the period of 180 days stipulated in s 7, because the municipality (as represented by its council) only became aware of the unlawful administrative action in awarding the relevant contract on 28 October 2015. In the alternative, the municipality averred that the interests of justice justified an extension of the period of 180 days.

The SCA rejected the municipality’s contention that the time period only commenced running once the municipality became aware of the unlawful administrative action was unsustainable. The plain wording of s 7 does not support the interpretation that the application must be launched within 180 days after the party seeking a review became aware that the administrative action in issue was tainted by irregularity.

For an extension of the 180-day period, a substantive application had to be made by the municipality when it first approached the court for relief. That was not done.

The SCA further held that the court a quo made a number of errors in granting the extension of the 180-day period. Suffice it to mention here that the court a quo had incorrectly decided the merits of the review application before considering and determining the application for condonation. In doing so, it effectively precluded any finding that the application for condonation should be refused on its merits, with the result that any unlawful award of the relevant contract would be validated by the delay.

The SCA further considered the plaintiff’s appeal against the court a quo’s dismissal of its claim for provisional sentence. Before the court a quo, the municipality’s sole ground of opposition to the provisional sentence claim of the plaintiff was that the payment certificates prepared by the engineer and relied on by the plaintiff, were dependent on his or her valid appointment in terms of a valid underlying contract. The defence was upheld by the court a quo and provisional sentence refused, but the conclusion reached on appeal rendered the defence unsustainable.

The appeal (including the plaintiff’s claim for provisional sentence) thus succeeded with costs.

Attorney’s fees

Unlawful to charge contingency fees for non-litigious work: In Nash and Another v Mostert and Others 2017 (4) 80 SA (GP) the court held that that attorneys are not entitled to charge contingency fees for non-litigious work, but may only charge fees for work actually preformed.

The facts were that Mostert, an attorney, was appointed as the curator of the Sable Industries Pension Fund (Sable) by the High Court. The fund had been stripped of its assets in terms of the infamous ‘Ghavalas Option’, which is a type of scam, the details of which are not relevant for purposes of the present discussion. Nash (the applicant) had allegedly stolen R 36 million from Sable, which had been left with no assets. The Financial Services Board (FSB) applied to court for Mostert to be appointed as curator of Sable in terms of the Financial Institutions (Protection of Funds) Act 28 of 2001.

The court appointed Mostert as curator to manage the affairs of Sable and to recoup the funds stripped from it (hereafter: the initial court order). The order stipulated that: ‘The curator shall be entitled to periodical remuneration in accordance with the norms of the attorneys’ profession as agreed with the [FSB], such remuneration to be paid from the assets owned and administered on behalf of the [Sable] fund.’

An agreement was concluded between Mostert and his firm and the FSB in terms of which a contingency fee was to be paid to Mostert and his firm as there were no assets in Sable to fund any litigation for the recovery of its funds. Remuneration of 33,3% of all funds recovered was agreed to by all the parties.

The applicant (who alleged to be a member of Sable) argued that the contingency fee agreement was void as it exceeded the maximum percentage allowed by the Contingency Fees Act 66 of 1997 (CFA), namely, 25%.

Tuchten J held that the remuneration to be paid on a proper interpretation of the initial court order had to comply with the norms of the attorneys’ profession. This placed a restriction on the discretion of the FSB to agree to the amount of the remuneration.

The common-law restrictions on contingency fees, in terms of which charging such fees was unlawful, arose under circumstances where courts decided on such fees in litigious matters. There is no case law dealing with contingency fees for non-litigious matters and the matter, therefore, had to be decided on general principles.

The court pointed out that the main concern with modern contingency fees agreements is that they may give rise to a conflict of interests between the duties and interests of legal practitioners. Making practitioners partners with their clients tends to subvert the interests of justice.

There is in principle no reason not to subject contingency fees for non-litigious work to the same rules applicable to such fees for litigious work. Contingency fees by attorneys may only be recovered under the CFA and subject to its restrictions.

However, the attorneys’ profession does not contemplate within their norms and rules for fees any provision for the charging of contingency fees for non-litigious work.

The court concluded that contingency fee agreements in respect of non-litigious matters were against public policy, and for broadly the same reasons that agreements in relation to litigious work were, namely, the undertaking of speculative actions for clients could give rise to conflicts of interest as described above.

The agreement in this case is therefore void. The curator and the FSB need to come to a new agreement providing for remuneration in accordance with the work actually done by the curator and based on the general principles applicable to attorneys’ fees.

The respondents were ordered to pay the applicants’ costs in relation to the present application.

Company law

Late proof of claims under winding-up process: In Wishart NO and Others v BHP Billiton Energy Coal South Africa (Pty) Ltd and Others 2017 (4) SA 152 (SCA); [2017] 1 All SA 90 (SCA) the fourth and fifth appellants sought the High Court’s leave under s 44(1) of the Insolvency Act 24 of 1936, to prove a late claim in the winding-up of the second respondent. The respondents, BHP, raised an exception, which was upheld.

On appeal to the SCA, the first issue before Lewis JA was whether the application of s 44(1) of the Insolvency Act, and particularly the proviso to it which deals with fixing a period for the proof of claims, and the late proof with the leave of the master or the court, is excluded by the terms of s 366 of the Companies Act 61 of 1973 (the 1973 Companies Act). Section 366(1) regulates the proof of claims in a winding-up, and s 366(2) gives the master a discretion to fix a time within which creditors are to prove their claims.

In deciding the matter, the court referred with approval to the decision in Mayo NO and Others v De Montlehu 2016 (1) SA 36 (SCA) in which the court confirmed that there was no inconsistency between s 44(1) of the Insolvency Act and s 366(2) of the 1973 Companies Act and that the two provisions have different objectives.

The court thus confirmed that that part of s 44(1) of the Insolvency Act, which allows the court or the master to give leave for the late proving of a claim, applied in windings-up.

Accordingly, the exception to the claim for the leave of the court to prove a claim on the terms and conditions set by the master should not have been upheld. The appeal against the order upholding the first exception was thus successful.

The fourth and fifth appellants had also claimed the expungement of a claim in the liquidation and distribution account. The respondents had again successfully excepted in the court a quo.

The second issue on appeal was thus whether a party could bypass s 407 of the 1973 Companies Act and approach a court directly to expunge a claim.

Lewis JA held that it could not. Section 407 gave the power of expungement to the master alone; and only when he had made a decision in its exercise, could a person approach a court to review it.

The first exception to the particulars of claim was dismissed with costs; while the appeal against the order upholding the second exception was dismissed with costs including those of two counsel.

Constitutional law

Infringement of rights of privacy by the Drugs and Drug Trafficking Act: In Prince v Minister of Justice and Constitutional Development and Others and related matters [2017] 2 All SA 864 (WCC) the applicants sought a declaration that the legislative prohibition against the use of cannabis and the possession, purchase and cultivation of cannabis for personal or communal consumption was invalid. The specific impugned statutory provisions were
ss 4(b) and 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 (the Drugs Act);
s 22A(10) of the Medicines and Related Substances Control Act 101 of 1965 (the Medicines Act); and s 40(1)(h) of the Criminal Procedure Act 51 of 1977, insofar as the latter referred to cannabis. The latter provision empowered a peace officer without a warrant to arrest any person who is reasonably suspected of having committed an offence under any law and governing the making, supply, possession or conveyance of cannabis.

The respondent (the minister) raised the doctrine of res judicata contending that the issues, which emerged in the present case, had previously been disposed of by the CC in Prince v President of the Law Society of the Cape of Good Hope and Others 2002 (3) BCLR 231; 2002 (2) SA 794 (CC).

Davis J held that it was clear that the CC did not consider whether any prohibition as contained in ss 4 and 5 of the Drugs Act infringed the right to privacy. The case turned instead on a limited question, namely, an application for a limited exemption for religious reasons from the provisions of a criminal law of general application. Accordingly, the doctrine of res judicata did not apply, because the CC did not decide the dispute before the present court.

The critical question raised by the applicants was whether the state may legitimately dictate what people eat, drink or smoke in the confines of their own homes or in properly designated places. It had to be determined whether the infringement of the right to privacy caused by the impugned legislation could be justified in terms of s 36 of the Constitution.

Section 14 of the Constitution guarantees the right to privacy. There is a connection between an individual’s right to privacy and the right to dignity, which is protected in terms of s 10 of the Constitution. There is also a link between privacy and the right to freedom.

Any right guaranteed in ch 2of the Constitution may be limited by a law of general application, to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account a series of factors which are set out in s 36(1) of the Constitution. As the present case turned on the determination of the factors set out in s 36(1), the burden of justification rested on the minister.

The court had to consider whether the relevant behavior warranted constitutional protection or, expressed differently, whether what the court was dealing with was a genuine and serious violation of a constitutional right protected in ch 2. The court confirmed that the right to privacy not only passed the threshold test, but was clearly deserving of constitutional protection, absent a clear justification to the contrary.

The minister, in turn, was required to show that there was a substantial state interest, which justified the limitation. The minister failed to do so. The present prohibition contained in the impugned legislation did not employ the least restrictive means to deal with a social and health problem for which there were a number of less restrictive options supported by a significant body of expertise. The court, therefore, held that less restrictive means should be employed to deal with the problem.

Explaining the ambit of judicial review, the court held that it was the duty of the legislature and not the court to prescribe alternatives to decriminalisation of the use of cannabis for personal use and consumption.

Sections 4(b) and 5(b) of the Drugs Act and s 22A(10) of the Medicines Act were declared inconsistent with the Constitution only to the extent that they prohibited the use of cannabis by an adult in private dwellings where the possession, purchase or cultivation of cannabis was for personal consumption by an adult. The declaration of invalidity was suspended for a period of 24 months from the date of the judgment in order to allow Parliament to correct the defects.

Credit law

Unlawful to collect or reactivate a prescribed debt: In Kaknis v ABSA Bank Ltd 2017 (4) SA 17 (SCA); [2017] 2 All SA 1 (SCA) the court held that s 126B of the National Credit Act 34 of 2005 makes it unlawful to continue to collect or to reactivate a debt that had become prescribed under the Prescription Act 68 of 1969.

The facts were that Kaknis concluded ten instalment sales agreements with the respondent bank (Absa). These agreements concerned motor-vehicles and trailers. It was common cause that the debts prescribed during July 2014. Absa, notwithstanding continued to attempt to recover the amounts that had been unpaid. In October 2014 Kaknis signed an acknowledgment of debt in favour of Absa for R 2,7 million. Kaknis failed to make payments on the acknowledgment of debt and also failed to return any of the assets purchased. In April 2015 Absa issued summons claiming cancellation of the agreement, return of the assets and with damages to be claimed at a later stage.

Kaknis entered appearance to defend and Absa applied for summary judgment. Kaknis raised the defence that the claims had become prescribed, alternatively that Absa was precluded from claiming the amounts by virtue of s 126B(1)(b) of the NCA. The court of first instance rejected the defences and granted summary judgment.

On appeal, Shongwe JA held that s 126B(1)(b), which makes it unlawful to continue to collect or to reactivate a debt that had become prescribed under the Prescription Act, came into operation on 13 March 2015, that is, well after the acknowledgement of debt, which revived the debt, had been signed.

The court further held that there is a strong presumption that legislation is not intended to be retroactive or retrospective. There must be clear language from the legislature that retroactive or retrospective working was intended.

In this regard the court pointed out that legislation does not invalidate acts which were performed prior to the enactment, nor does it impair existing rights and obligations unless there is a clear indication to that effect.

It further emphasised that there is also a rule that new legislation, even though clearly intended to be retroactive or retrospective, will not affect matters which are subject to pending legal proceedings. This presumption applies in most legal systems and is settled in our law.

It is further common cause that s 126B does not expressly provide that it is intended to apply with retrospective effect.

Finally, it held that there was also no other indication that the legislature intended the retrospective effect of s 126B.

The appeal was accordingly dismissed with costs.


Future medical expenses for bodily injuries: In Premier, Western Cape v Kiewitz 2017 (4) SA 202 (SCA) the respondent, Kiewitz, sued the Western Cape provincial government (the defendant) for damages suffered by her son, J, who became blind because staff at the provincial hospital at which he was born failed to detect an eye disease at birth. All damages apart from a claim in respect of J’s future medical expenses were settled. In its ‘plea in mitigation’ the defendant undertook to provide all future medical care required by J for his sight impairment. The undertaking specified that disputes over treatment would be determined by a third party, which was to be either a health professional agreed on by the parties or, failing that, the Dean of the University of Stellenbosch Faculty of Health Sciences. The defendant argued that failure to accept the undertaking and thus mitigate the damages would result in a concomitant reduction of the damages.

The High Court dismissed the plea.

In an appeal to the SCA the question was whether plaintiffs in delictual claims against a provincial government are obliged to mitigate their damages by accepting a tender for future medical treatment at a provincial health facility rather than receiving a monetary payment in respect of assessed future medical expenses.

Nicholls AJA held that the effect of the plea in mitigation was to deny Kiewitz any monetary award for future medical treatment. It offended against both the once-and-for-all rule and the rule that compensation in bodily injury matters must comprise a monetary award. In addition, the provision regarding the settlement of disputes appeared to be an attempt to unlawfully exclude judicial oversight over future medical expenses.

The court confirmed the trite rule (laid down in Cape Town City Council v Jacobs 1917 AD 615 at 620) that a delictual claim is based on a single, indivisible cause of action and a plaintiff must claim once, and be compensated, for all damage suffered, not only for loss already suffered but future loss as well.

The appeal was dismissed with costs.

Insolvency law

Requirement of ‘advantage to creditors’: The facts in Body Corporate of Empire Gardens v Sithole and Another 2017 (4) SA 161 (SCA) were as follows: The appellant, the body corporate of Empire Gardens (the body corporate), was established in accordance with s 36 of the Sectional Titles Act 95 of 1986.

The first respondent, Ms N Sithole, is the joint registered owner of unit 12 of the sectional title scheme of the body corporate and is accordingly, in terms of s 36(1) of the Sectional Titles Act, one of the members of the body corporate. The other registered owner of the unit is the first respondent’s sister, Ms C Sithole, but she was not cited as a party in the present proceedings. The Sithole sisters, as joint owners of the unit, were obliged to pay their proportionate share of the levies but they defaulted and two default judgments in the amounts of R 13 385,70 and R 99 298,80 were granted against them respectively. In order to satisfy the judgments, their movable assets were attached and sold at an auction but it only realised an amount of R 3 237. In a further attempt to satisfy the judgments, the body corporate obtained a warrant of execution against the sisters’ immovable property and the unit was attached and sold at an auction, but the sale had to be abandoned because the second respondent (Nedbank), which had a mortgage bond registered in its favour in respect of the unit, did not accept the selling price of
R 170 000. The body corporate then launched an application for Ms Sithole’s sequestration.

The court a quo dismissed the application. It held that such an order would only benefit the body corporate and not the general body of creditors as required by s 10(1)(c) of the Insolvency Act 34 of 1936.

On appeal to the SCA the body corporate argued that bodies corporate did not merely act to protect their own financial interests but had a statutory obligation to protect the interests of all the members who were prejudiced when a single member failed to pay their arrear levies. A deviation from the trite principle of concursus creditorum was, therefore, justified so that it would not be necessary for bodies corporate to prove actual or prospective pecuniary benefit to the general body of creditors.

Tshiqi JA held that there was no basis for making a distinction between bodies corporate and other creditors. Accordingly, so the court reasoned, a body corporate of a sectional title scheme applying for the compulsory sequestration of its members was required to prove that the order of sequestration sought would be to the advantage of the general body of creditors, as contemplated in s 10(c) of the Insolvency Act 24 of 1936.

The appeal was dismissed.


Removal of variation of title deed restrictions: The decision in Ex Parte Whitfield and related matters [2017] 2 All SA 841 (ECP) concerned seven similar applications, in terms of which the applicants sought the removal of restrictive conditions of title incorporated in the title deeds of their respective properties. At stake was the court’s jurisdiction in relation to the removal of a restrictive condition of title in the light of the provisions of the Spatial Planning and Land Use Management Act 16 of 2013, which came into effect on 1 July 2015. Each of the matters was then referred to a Full Court of the Eastern Cape Division in order that the issue of jurisdiction be determined.

The present court began with a consideration of the ambit of its jurisdiction to remove or vary a restrictive condition of title as it had been explained in a long line of cases prior to the commencement of the new legislation. Next, it considered whether the provisions of the Spatial Planning Act had in any manner altered either the ambit of the court’s authority, or defined the circumstances in which it may be exercised.

Goosen J held that it has long been settled that the High Court has no inherent jurisdiction to remove, vary or suspend a restrictive condition of title to land. The rationale lies in the nature of a restrictive condition which, in its essence, is a form of contractual stipulation in terms of which a transferor of land regulates the exercise of the transferee’s dominium over the property. Such conditions are in the nature of servitudes. Given the nature of the conditions of title and the rights that are thereby conferred they cannot be removed, varied or suspended except with the consent of all of the parties whose rights and interests are regulated thereby.

The authorities referred to by the court showed that the jurisdiction of the court to authorise a deletion, variation or suspension of a restrictive condition arises from the fact that interested parties are vested with a common law right to waive, vary or abandon their rights coupled with the fact of the exercise of such right by the parties concerned. The court does no more than enquire into and establish that such common law right has been properly exercised by the parties who are entitled to exercise it. Once it is satisfied in this regard, it issues a declarator which authorises the Registrar of Deeds to effect an appropriate endorsement of the title deeds in accordance with the provisions of the Deeds Registries Act 47 of 1937.

The specific question, which arose in relation to the present matter, was whether the provisions of the Spatial Planning Act had in any manner limited the court’s authority to give effect to the exercise by interested parties of their common law right to waive, or amend, or vary their rights.

The Spatial Planning Act establishes a new administrative procedure for the removal of a restrictive condition, by placing the authority in the hands of the Municipal Planning Tribunal or designated municipal official as the case may be. The fact that the Spatial Planning Act does not specifically address the ambit of the court’s authority, was seen to militate against a finding that the court’s authority is in any manner altered. If the legislature had intended to exclude a court from issuing a declaratory to the effect that the rights conferred by a registered condition of title have been extinguished, either by bilateral consent or by unilateral waiver, it would have done so in express terms.

The court further explained the meaning and effect of s 47 of the Spatial Planning Act, which formed the statutory framework regulating the removal of restrictive conditions. The question was whether the consent of a Municipal Planning Tribunal had to be obtained before a court would grant a declarator authorising such removal. The court held that s 47(1) did not require the consent of a municipal planning tribunal in all circumstances where a court is moved to authorise the removal of a restrictive condition. Therefore, a court’s power to grant an order authorising the removal or amendment of a restrictive condition of title on proof that all interested parties have consented thereto is not affected by the provisions of the Spatial Planning Act. In each instance it would be necessary to establish that all interested parties have indeed consented thereto.

Having established the above, the court addressed each case in turn, making appropriate orders against the above principles.

Other cases

Apart from the cases and topics that were discussed or referred to above, the material under review also contained cases dealing with: Administrative law, appeals, attorneys, business rescue, civil procedure, contempt of court, enforceability of contracts, criminal law, expropriation, human rights, immigration, intellectual property, land reform, local authorities, revenue and sale of land.

This article was first published in De Rebus in 2017 (Sept) DR 40.