Division: High Court (Western Cape High Court, Cape Town)
Coram: Zondi, J
Judgment delivered: 28 March 2009
Case Number: 20645/2008
Dolphin Whisper Trading 10 (Pty) Ltd v The Registrar of Deeds and Another
In this application the applicant, a property developer, sought an order reviewing and setting aside the first respondent's refusal to register the sectional plans of extension in the Sectional Title Scheme known as Skilliepark 2; to extend the sectional title register in the Scheme to include certain sections; and an order directing the first respondent to register certain sectional plans of extension and to extend a sectional title register.
The dispute between the parties concerned the application of section 25(13) which provides as follows:
"(13) A developer or his successor in title who exercises a reserved right referred to in subsection (1), or a body corporate exercising the right referred to in subsection (6), shall be obliged to erect and divide the building or buildings into sections strictly in accordance with the documents referred to in subsection (2), due regard being had to changed circumstances which would make strict compliance impracticable, and an owner of a unit in the scheme who is prejudiced by his failure to comply in this manner, may apply to the Court, whereupon the Court may order proper compliance with the terms of the reservation, or grant such other relief, including damages, as the Court may deem fit".
The above section does not indicate whether the Registrar or a Court is empowered to determine what conditions will constitute "changed circumstances". The Court agreed that
the registrar of deeds is not in a position to determine whether "changed circumstances would make strict compliance impracticable". It is for the Court to make that determination.
An onus therefore rests on the developer pleading "changed circumstances" to set out fully facts indicating the nature and extent of the "changed circumstances" relied upon and how they came about such as natural slope, sea views, economic viability in the light of changed market conditions.
The court agreed that there was absolutely nothing in the founding affidavit and nor were any factual circumstances provided to the Registrar, which would have supported the notion that changed circumstances existed which would have made it impracticable for the applicant to have complied with the original building plans. The application was accordingly dismissed.