Suspension – a response

  1. In the seventh paragraph of Suspension call ("the article"), Mr Lee asks: "Question is, why then suspend the RCR's? They are perfectly in line with the legal situation in case of forced sales." I do not agree.

  2. I agree to the statement, in RCR 62/2010, that: "The Sheriff acts in terms of an order of court." However, I do not agree that such order of the Court has any bearing at all on the fate of prevailing conditions that restrict the registration of transfer of the relevant properties, which conditions may be imposed by statute or registered against the title deeds of the relevant properties - refer to the authorities referred to in paragraphs 3 and 4 below.

  3. With regard to the certificates required by section 118 (1) of the Local Government Municipal Systems Act 32 of 2000 and section 15B (3) (a) of the Sectional Titles Act 95 of 1986 ("the STA"), I refer to BOE Bank Ltd v Tshwane Metropolitan Municipality 2005 (4) SA 336 (SCA) ("the BOE case") and Nel NO v Body Corporate of the Seaways Building and Another 1996 (1) SA 131 (A), respectively. Suffice it to refer to page 136 of the BOE case, where, with reference to sections 15, 15A and 15B of the STA, E M Grosskopf JA said: "These sections contain no reference to the transferor's insolvency. As a matter of language, and particularly also in the light of the legislative history of the provision, the conclusion is ineluctable that the Legislature intended the provision to apply whether or not the transferor was insolvent. As I have said, this was expressly conceded in argument on behalf of the appellant."

  4. With regard to the removal of restrictive conditions of title by the Court, attention is drawn to page 718 of Ex Parte Saiga Properties (Pty) Ltd, 1997 (4) SA 716 (E), where Leach J said: "….it is in fact a matter of trite law that this Court has no authority or common-law power to remove a restrictive condition from a title deed and can only do so if, for example, the consent of all interested persons is obtained or where the rights created by the restrictive conditions for some reason no longer exist……."

  5. Attention is drawn, further, to Ivoral Properties (Pty) Ltd v Sheriff, Cape Town, and Others 2005 (6) SA 96 (C) ("the Ivoral case") at page 118, paragraph [66], where Van Reenen J stated that:

    "A sale in execution of immovable property entails two distinct transactions, namely the sale itself and the passing of transfer pursuant thereto ……………Although Uniform Rule 46 does not specifically empower a Sheriff to institute proceedings in order to enforce the contract embodied in the conditions of sale, such power is implicit in the duty to see that transfer is passed and the provisions of Uniform Rule 46 (13) which impose an obligation upon him to do anything necessary to effect registration of transfer …………." (emphasis added).

    The latter, read with paragraph 4 above, means, amongst other things, that, if necessary, the Sheriff would properly institute legal proceedings for the removal of a restrictive condition of title.

  6. RCR 62/2010's reliance on paragraph 65 of the Ivoral case (the excerpt is contained in the Resolution) was erroneous because, on a closer perusal of the said paragraph, it will be noted that the Court was clarifying the powers of the Sheriff only in the disposal, by way of sale, of the relevant property and definitely not as regards the withdrawal of the rights of third parties, particularly registered conditions of title.

  7. On the basis of the afore-going, my conclusion is that, regardless of what motivated it, the suspension of RCR's 46, 47 and 62 of 2010 ought to be superseded by their withdrawal.
Thabo Nqhome
11 April 2011

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