Hodgson NO v Howie NO

• Jurisdiction: South Africa
• Judge: Van Zyl J
• Judgment Date: 25 March 2014
• Docket Number: 8632/2011
• Court: KwaZulu-Natal High Court, Durban
• Hearing Date: 14 March 2014
• Citation: 2014 JDR 0570 (KZD)

Van Zyl, J.:

1.

This is an application in which a purchaser seeks to obtain specific performance pursuant to a deed of sale by compelling the seller to effect

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transfer of a portion of subdivided land. The seller raised prescription as an initial defence, but failing that claims rectification of the deed of sale as a precondition for performing in terms thereof.

2.

The applicant is the executrix in the deceased estate of her late husband, who was the purchaser in terms of a deed of sale concluded on or about 7 September 2005 with the Chaka's View Trust (the trust), presently represented by the first, sixth, seventh and eighth respondents (although the seventh respondent is not an active participant) as its trustees. For ease of reference I will refer to these respondents simply as "the trust". The third respondent is the Registrar of Deeds, KZN. The fourth and fifth respondents are a married couple, who were cited as respondents on the basis that they have a substantial interest in the outcome of these proceedings, having subsequently purchased from the applicant the property commonly referred to as lot 347. However, the only active parties in the dispute when it came before me as an opposed motion for argument upon the affidavits were the applicant on the one hand and the trust, as represented by the first, sixth and eighth respondents, on the other hand.

3.

Whilst the deed of sale does not say so, it is common cause that the subject matter of the sale, therein described as "Portion 4 of Erf 1094, Southport", did not exist at the time of the conclusion of the sale agreement and still had to be created, once the necessary approvals

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were obtained, by way of a subdivision of Erf 1094, before transfer could be effected pursuant to any sale.

4.

The issues need to be considered against the background and history of developments ultimately giving rise to the present dispute. The disputed portions formed part of a much larger tract of land referred to as Bendigo Farm and originally purchased, according to the answering affidavit of the first respondent Mr Howie, by him in his personal capacity some thirty five years earlier. Mr Howie said that shortly after such acquisition he transferred the land into the name of the trust.

5.

Many years later, one gathers, the area had been the subject of some development and had been subdivided for residential occupation. According to the layout plan (annexure B to the applicant's founding affidavit) and relevant to the present dispute, the adjoining lots 343, 344, 345 and 347 were all bordered on their eastern side by an elongated subdivision styled Erf 1094, owned by the trust and which formed a strip of land separating the four lots aforementioned from the railway reserve.

6.

At one time Erf 1094 had formed part of a roadway then known as Ocean Drive South, but this had fallen into disuse. According to Mr Howie the trust initially had in mind developing Erf 1094 for residential purposes, but this met with opposition from the owners of the adjoining

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lots who feared interference with the sea views from their respective properties.

7.

During the course of discussions the idea was mooted, subject to the necessary permissions being obtained, of subdividing Erf 1094 into four portions which would then be acquired by, added to and consolidated with each of the four corresponding adjoining lots. Of relevance to the issues at present is that lot 345, which would acquire portion 3 to be created, belonged to a Mrs Kriel and lot 347, which would acquire portion 4 to be created, belonged to the late Mr Hodgson (the deceased).

8.

According to the trust Mrs Kriel, whilst receptive to the proposed subdivision and acquisition of the relevant portion of Erf 1094, requested a right of way, which would traverse portion 4 to be created and was intended for acquisition by the adjoining lot 347 owned by the late Mr Hodgson. Mrs Kriel apparently envisaged the future construction of garaging on the lower (eastern) part of lot 345, once consolidated with portion 3, with vehicular access thereto by means of the proposed servitude. In this regard the trust placed reliance upon her letter of the 1st February 2005 to Mr Naude, a land surveyor attached to the firm Hudson-Naude-Kirby which appears also to have prepared the proposed layout plan (exhibit B to the applicant's founding affidavit) which shows a two meter wide right of way servitude traversing the proposed portion 4.

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9.

The trust contends that agreement regarding the creation of such a right of way, by means of a servitude over what was to become portion 4, was reached between the trust represented by Mr Howie, Mrs Kriel and the late Mr Hodgson. In this regard it draws attention to the course of negotiations giving rise to the claimed right of way agreement.

10.

According to the answering affidavit of the first respondent Mr Howie, the four proposed portions to be created from subdividing Erf 1094 were to be offered to each of the owners of the corresponding adjoining lots at a standard price of R5 000-00 each. As a result initially the proposed portion 3 was to be acquired by Mrs Kriel as owner of lot 345 at this price and the proposed portion 4 was to be acquired by the late Mr Hodgson as owner of lot 347 at the same price. The latter proposition was confirmed in a letter dated 18 July 2005 from the late Mr Hodgson to Mr Howie (being annexure F to the latter's answering affidavit).

11.

Flowing from these proposals and on 7 September 2005 the proposed portions 1 and 2 were sold as envisaged to Messrs L D Barritt and B W Taylor, respectively the owners of lots 343 and 344, for R5 000-00 each. This was evidenced by copies of their agreements of sale annexed to Mr Howie's answering affidavit as annexures B and C. On the same date portion 4 was sold to the late Mr Hodgson, but at a reduced price of R3 750-00, as is apparent from the agreement of sale, a copy of which is annexure B(2) to the applicant's founding affidavit.

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12.

By way of contrast the proposed portion 3 of Erf 1094 had earlier been sold to Mrs Kriel for the increased price of R6 250-00 by virtue of an agreement of sale signed on 26 July 2005 and a copy of which is annexure D to the answering affidavit of Mr Howie. Significantly this agreement also includes under clause 15 a special condition, reading as follows:-

"See attached diagram showing servitude over sub 4 in favour of sub 3."

13.

Reference to the diagram, annexed and marked E, reveals that it is similar to and indeed a clearer copy of annexure B to the applicant's founding affidavit which had been prepared by Messrs Hudson-Naude-Kirby, professional land surveyors of Port Shepstone, during July 2004.

14.

On behalf of the trust it was submitted that the omission of a special condition of a similar nature from the agreement of sale concluded between the trust and the late Mr Hodgson could only be explained as an error at the time, probably because it was concluded simultaneously with the sales of portions 1 and 2, which were not involved in the right of way issue. It was further submitted by Mr Ungerer, who appeared for the trust, that the prices at which the four portions were ultimately sold were entirely consistent with and supported the explanation of Mr Howie that the price for portion 3 had increased by R1 250-00 and the

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price for portion 4 had correspondingly been reduced by the same amount, in order to compensate for the right of way agreement affecting only these two portions.

15.

An agreement, invalid...