Thompson v Port Elizabeth City Council

• Jurisdiction: South Africa
• Judge: Hoexter JA, Botha JA, Steyn JA, Eksteen JA, Nicholas AJA
• Judgment Date: 27 July 1989
• Citation: 1989 (4) SA 765 (A)
• Hearing Date: 12 May 1989
• Court: Appellate Division

Hoexter JA:

In the magistrate's court for the district of Port Elizabeth the respondent sued the appellant for payment of R54,11, interest I thereon at the rate of 15 % per annum a tempore morae, and costs. The appellant resisted the action and by agreement between the parties the issues were submitted to the magistrate by way of a stated case. The magistrate gave judgment as prayed in favour of the respondent; and the appellant noted an appeal against the whole of the magistrate's judgment to the Court a quo. The Court a quo dismissed the appeal with costs. J With leave of the Court below the appellant appeals to this Court.

Hoexter JA

A Extension 9 of Theescombe Township ('the township') is situated within the Municipality and Division of Port Elizabeth. The appellant is the registered owner of an erf ('erf 1413') in the township. Subsections (1), (2) and (3) of s 14A of the since repealed Cape Ordinance 33 of 1934, as amended ('the Townships Ordinance') read as follows:

B '14A (1) The Administrator may in granting an application for the establishment of a township, the subdivision of an estate or the making of a minor subdivision, in addition to any other conditions, impose a condition in respect of all or any of the erven therein requiring the erection thereon within a period specified in such condition (hereinafter referred to as "the specified period") of buildings of a valuation of not less than an amount likewise specified (hereinafter C referred to as the "specified valuation").

(2) If a condition imposed in respect of an erf in terms of ss (1) is not complied with, the owner of such erf shall be liable to pay to the local authority in respect of every rate which is levied by it, which becomes due and payable during the year in which the specified period expires and any year thereafter and which could lawfully have been assessed and recovered on buildings of the specified valuation, had they D been erected on such erf, a penalty equal to the amount of such rate; provided that:

(a)

...

(b)

...

(3) The provisions of the ordinance applicable to the local authority E and relating to the date on which rates become due and payable, the collection and recovery of rates (including the institution of legal proceedings), the interest payable on arrear rates, the issue of any certificate required for the transfer of immovable property, and the seizure and lease or sale of immovable property in respect of which rates have not been paid, shall mutatis mutandis apply in respect of the amount of the penalty referred to in ss (2) as if it were a rate.'

F With reference to the above three subsections it was provided by ss (4) that

'... "owner" in relation to an erf means the person in whose name such erf is registered in the Deeds Registry and, in the case of an erf not yet transferred by the township owner, means such township owner...'.

G The township was approved by the Administrator on 17 July 1972. In the Official Gazette for the Province of the Cape of Good Hope dated 7 February 1975 the township was notified as an approved township in terms of s 20(6) of the Townships Ordinance. In granting the application for the establishment of the township the Administrator, in terms of s 14A(1) of the Townships Ordinance, imposed a condition ('the condition') H in respect of a number of erven (including erf 1413) in the township. The condition, as set out in the stated case, is in the following terms:

'Geboue van 'n waardasie van nie minder as R7 000 nie, sal op hierdie erf opgerig word binne 'n tydperk van nie meer as agt jaar van die datum I waarop die goedkeuring van die dorp ingevolge art 20(6) van die Dorpe Ordonnansie 33 van 1934 bekend gemaak word, of nie meer as drie jaar van die datum van die eerste oordrag van sodanige erf na bekendmaking van sodanige goedkeuring nie, watter tydperk ookal die eerste verstryk. Die eienaar sal in enige verkoopakte ten opsigte van genoemde erwe, die bestaan van die genoemde voorwaarde bekend maak.'

In terms of s 3(1)(t) of the Deeds Registries Act 47 of 1937, it is the J duty of the Registrar of Deeds to

Hoexter JA

A '... register general plans of erven or of subdivisions of land, open registers of the erven or subdivisions of land shown on such general plans, and record the conditions upon which erven or subdivisions have been laid out or established'.

Pursuant to s 3(1)(t) of Act 47 of 1937 the Registrar of Deeds duly registered the township and recorded the...