Pocock v De Oliviera and Others

• Jurisdiction: South Africa
• Judge: Joffe J, Mathopo J and Bashall AJ
• Judgment Date: 12 November 2008
• Citation: 2010 (1) SA 514 (W)
• Docket Number: A 5014/2007
• Hearing Date: 02 September 2008
• Counsel: JF Steyn for the appellant. CJ Bresler for the respondents.
• Court: Witwatersrand Local Division

Bashall AJ:

[1] The appellant (to whom for convenience I shall refer as 'the F applicant') appeals, with the leave of the Supreme Court of Appeal, against the dismissal of her claim in which she sought a declarator that erven 5554 and 5555, Kensington Township, were notarially tied pursuant to a notarial agreement of 17 September 1938 registered under F163/1938. In the alternative, she sought orders that the two erven be regarded as one property for all intents and purposes and that the first G respondent be ordered to transfer to the applicant erf 5555. In the further alternative, she sought an order that the third respondent endorse deed of transfer T72841/2001 to show that the applicant is the owner of both erven, and that the third respondent cancel deed of transfer T6567/1998. (The second respondent: the City of Cape Town; the third respondent: the registrar of deeds.) H

[2] The first respondent did not file an answering affidavit, but, instead, apparently filed a notice in terms of rule 6(5)(d)(iii), setting out the points of law that he intended to raise. I say apparently because this notice is not included in the record and the source is the judgment of the learned judge a quo. The question of law related to prescription and I further takes issue with the applicant's contentions as to the effect of the 1938 notarial agreement.

[3] The applicant commences by stating that she is the registered owner of erf 5554 situate at 86 Westmoreland Road, Kensington, Johannesburg, and the first respondent is the registered owner of erf 5555. She J

Bashall AJ

A proceeds to state that the latter erf is 'landlocked', without any servitude of way, and it accordingly has no street address, but the two erven have become tied and for that reason erf 5555 is also situate at 86 Westmoreland Road, Kensington.

[4] There is a house on erf 5554 and outbuildings of this residence which B extend onto erf 5555, on which there is also a swimming pool. These structures apparently predate acquisition of erf 5554 by the applicant.

[5] Although no municipal services are rendered to erf 5555, as opposed to erf 5554, rates and taxes are levied on separate accounts in respect of C the two erven.

[6] The background to the application commences in 1907 when one Alexander became the owner of 24 lots (erven), each measuring 495 square metres and each stated to be held under a separate title. The 24 lots included the two erven in issue. The title deeds to the two erven were, respectively, 5994/1907 and 5995/1907. The title deeds of each of D these lots contained firstly, in condition 7 of each, a prohibition against subdivision and a restriction against disposal in less than blocks comprising four lots each, save with the consent of the township owner. Condition 8 of these deeds imposed restrictions as to the character of any proposed building, the plans for which required prior written approval of E the township owner. Condition 8 proceeded, 'unless the consent of the said Company in writing for that purpose be first had and obtained, only one residence with stables and outhouses may be built upon one block of four lots as owned by the Transferee'.

[7] It is clear that this restriction on the construction, of one dwelling per F four lots, was not immutable and it could be waived with the written consent of the company as township owner, just as the previous condition regarding disposal in less than blocks of four lots could likewise be waived with the written consent of the township owner.

[8] These 24 lots were transferred from Alexander's estate to one Venter G in 1938 under one deed of transfer, 3518/38, subject to the aforesaid conditions contained in their respective 1907 deeds of transfer. It is to be noted that the title deed does contain, at page 71, registered endorsements of consolidation of certain other blocks of four lots each with the issue of certificates of consolidated title in respect of such new consolidated lots. This, however, did not apply in respect of the erven in H issue before us.

[9] On 27 September 1938 an endorsement was registered against deed of transfer 3518/38, recording the registration of a notarial agreement dated 17 September 1938 in respect of 16 of the lots, including 5554 and I 5555. It is expressly recorded that...