Hans Merensky Land Owners' Association v Registrar of Deeds, Polokwane and Others

• Jurisdiction: South Africa
• Judge: GC Muller J
• Judgment Date: 24 May 2022
• Court: Limpopo Division, Polokwane
• Hearing Date: 24 May 2022
• Docket Number: 4619/2022

Muller J:

[1]

This application was launched as extremely urgent a day after another urgent application in respect of the same property was struck from the roll with costs on 17 May 2022. The application stood down to yesterday 19 May 2022 at 14h00 to allow the respondents the opportunity to file opposing affidavits. The applicant filed two separate replying affidavits late yesterday afternoon. The application was argued last night.

[2]

The parties were informed at conclusion of the arguments that judgment will be delivered on Monday. However, I decided during the course of the night to issue the order today so as to inform the parties with equal urgency of the outcome and to give the reasons for the order as soon as possible.

[3]

The application was dismissed with the question of costs postponed until 10 June 2022, when CJ Langenhoven, S Matlala and Me Rinderknecht were to advance reasons, on affidavit, at 9h00 why they should not be ordered to pay the costs of the application on the scale as between attorney and client, including the costs consequent upon the employment of two counsel.

[4]

I informed the parties when the order was pronounced in open court that the reasons will follow promptly. These are my reasons.

[5]

The applicant is a non-profit company and Home Owners Association in respect of a development in Phalaborwa better known as the Hans Merensky Estate. The estate borders the Kruger National Park. The golf course was once (and it might still be) a championship golf course with the

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relevant amenities and a hotel. The development which also includes about fifty home owners is situated on the property, the subject matter in both the applications. It is described as:

"Remaining extent of Portion 1 of the Farm Merensky 32 registration Division L.U. Limpopo Province.

Measuring 112, 7071 (One Hundred and Twelve Comma Seven Zero Seven One) Hectares." [1]

[6]

The following restrictive conditions, which are relevant for present purposes, are registered in the title deed in favour of the Hans Merensky Land Owners Association, [2] its successors in title or assigns. They read:

"1.

Neither the land nor any undivided share therein shall be transferred to any person without the prior written consent of the Land Owners Association. Every owner of the property, or any interest therein, shall automatically become and remain a member of the Landowners Association and the conditions pertaining to the resort permit applicable to each portion and the Remaining Extent of Portion 1 until he/she ceases to be the owner as aforesaid.

2.

the owner of the property shall not be entitled to transfer the property or any share interest or members interest therein without a clearance certificate of the Land Owners Association to the effect that he provisions of the articles of Association have been complied with."

[7]

The deponent to the founding affidavit is the chairman of the Association. The Articles of Association which are not attached to the founding papers, but which the third to sixth respondent [3] attached revealed that a board of

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trustees is established for the association and consist of no less than three and not more than 10 members.

[8]

There are presently five trustees. The Articles provide in clause 9.3.3 that when there are five trustees, three trustees are nominees by the developer, which is Hans Merensky Country Club (Pty) Ltd. The deponent, as well as Mr S Matlala and Me Rinderknecht are the three trustees nominated by the developer. The remaining two trustees are Messrs Coppin and Bronèe. who were nominated as representatives by the home owners, on the board.

[9]

Clause 14.2 provides that a quorum for the holding of any meeting of the trustees are two trustees who must be personally present and during the development stage the presence of a majority of trustee who are nominees of the developer shall be necessary at all meetings to constitute a quorum. A simple majority of votes is required for a resolution.

[10]

The resolution to institute the proceedings which bind the home owners was obtained without the nominees of the home owners being present or invited to the meeting of the trustees where the resolution was taken. It is therefore, not surprising that the three trustees nominated by the developer met and took the resolution to institute the present application.

[11]

The facts set out by the deponent in the founding affidavit reveal that the second respondent is a company in liquidation which is the owner of the property. The liquidators in the exercise of their duties concluded a sale agreement with the seventh respondent in terms whereof the property of the second respondent was sold to it.

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[12]

On Tuesday 10 May 2022, subsequent to a Deeds Office Title Deed Search document, which was furnished to the deponent it came to the attention of the Association that the seventh respondent was seeking registration of the property in its name on 11 May 2022.

[13]

The deponent was absolutely shocked by the discovery since he was unaware that consent, as required by the restrictive conditions in the title deed has never been sought by or granted to the seventh respondent.

[14]

The deponent continued to aver that he sought urgent advise from the Association's attorneys, Knowles Husain Lindsay Inc. The attorneys addressed a letter to the first respondent (the Registrar of Deeds) and to the liquidators in which it was pointed out that consent from the Association is required prior to transfer of the property to the seventh respondent. An attorney, one Cameron, who represented Me Rinderkneckt and other applicants in the application that was struck from the roll on 17 May 2022 happened to be present and hand delivered the letter on behalf of attorneys to Mr Phali an employee at the deed office. During their discussions Phali informed Cameron that the sale is treated as a sale by auction by the liquidators as a "forced sale" and as such all restrictive conditions are ignored by the deeds office. Cameron was surprised and enquired from Phali what is considered as a "forced sale." Phali informed him...