THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 802/2016
In the matter between:

BONDEV MIDRAND (PTY) LIMITED                                 APPELLANT

and

PULING PULING                                                        FIRST RESPONDENT

TAPIWANASHE PULING                                     SECOND RESPONDENT

And in the matter between:
Case No: 803/2016

BONDEV MIDRAND (PTY) LIMITED                                 APPELLANT

and

PETRUS KGOSI RAMOKGOPA                                           RESPONDENT

Neutral citation: Bondev Midrand (Pty) Ltd v Puling (802/2016); Bondev
Midrand (Pty) Ltd v Ramokgopa (803/2016) [2017] ZASCA 141 (2 October
2017)

Coram:
Leach, Tshiqi and Seriti JJA and Tsoka and Ploos van Amstel
AJJA
Heard:
6 September 2017

Delivered: 2 October 2017

Summary: Immovable property : title deed : registered condition entitling
developer to have property re-transferred to it in certain circumstances : this a
personal not real right, capable of prescribing.

_______________________________________________________________

ORDER
________________________________________________________________

On appeal from: Gauteng Division, Pretoria (Makhubele AJ sitting as court of
first instance):

In each case, the following order will issue:
The appeal is dismissed with costs.

________________________________________________________________
JUDGMENT
________________________________________________________________

Leach JA (Tshiqi and Seriti JJA, Tsoka and Ploos van Amstel AJJA
concurring)

[1] In both these appeals, the appellant is Bondev Midrand (Pty) Ltd, a
property developer. In both cases the appellant unsuccessfully sought an order
obliging the respondent to re-transfer to it a piece of immovable property it had
earlier purchased from the appellant as it had failed to comply with a condition
registered against the title deed obliging the respondent to erect a building on
the property within a prescribed period. And in both cases its claim was
dismissed by the Gauteng Division, Pretoria on the basis that the appellant was
seeking to enforce a debt as envisaged in s 11(d) of the Prescription Act 68 of
1969 which had prescribed and become unenforceable as more than three years
had elapsed after it had become due. Leave to appeal was granted by this Court
in both instances and, as the issue of prescription is common to each, the
appeals were argued together. Consequently for convenience, and although the
appeal involving the respondent Puling (SCA case number 802/2016) involves

additional issues, I intend to give a single judgment dealing with both matters.
For convenience I intend to use the respondents’ surnames when referring to
them.

[2] The appellant has developed more than 4000 residential dwellings in
what is known as the Midstream Estate. Both appeals relate to pieces of
immovable property in this estate sold by the appellant. Transfer in case nr.
803/2016 was effected to the respondent in that case, Mr Ramokgopa, in
November 2006 and to the respondents in case nr. 802/2016, Mr and Mrs
Puling, in March 2000. The Deed of Transfer in Mr Ramokgopa’s case records
the following condition imposed and enforceable by the appellant as developer:
‘The Transferee or his Successors in Title will be liable to erect a dwelling on the property
within 18 (eighteen) months from 16 November 2006, failing which the (appellant) will be
entitled, but not obliged to claim that the property is transferred to the (appellant) at the cost
of the Transferee against payment by the Transferee of the original purchase price, interest
free. The Transferee shall not within the said period so transfer the property without the
(appellant’s) written consent. This period can be extended at the discretion of the
(appellant).’
The title deed in the case of Mr and Mrs Puling is in identical terms save that
the date by when the dwelling was to be erected, in their instance, was given as
7 March 2007.

[3] It is accepted that Mr Ramokgopa failed to comply with this condition.
As a result, in January 2014 the appellant instituted action against him seeking
an order that he transfer the property he had bought back to it and tendering
payment of the original purchase price. In opposing this relief, Mr Ramokgopa
relied solely upon a point in limine that the claim against him had arisen 18
months after 18 November 2006 (ie on 15 May 2008) and had therefore
prescribed three years later on 16 May 2011, well before the appellant had
instituted proceedings against him.

[4] In the case of Mr and Mrs Puling, they had bought the immovable
property known as Erf 2268, Midstream Estate Extension 26 Township. The
18 month period ending 6 September 2008 by when they ought to have built a
dwelling on that property in terms of the condition registered on the title deed
elapsed without them doing so. This condition remains unfulfilled to this day.
Consequently, when the period elapsed, the appellant became entitled, but not
obliged, to claim re-transfer of the property against repayment of the purchase
price. For some reason it did not do so. However things were brought to a head
more than four and a half years later when, on 5 April 2013, an attorney acting
on behalf of Mr and Mrs Puling wrote to the appellant’s attorney, stating that
his clients had no intention of erecting a building on the property but wished
instead to consolidate it with the adjoining erf which they had also purchased.
The appellant was not prepared to agree to this and, in March 2014, instituted
proceedings on notice of motion seeking an order obliging Mr and Mrs Puling
to re-transfer the property to it against payment of the original purchase price of
R510 000.

[5] Mr and Mrs Puling opposed the grant of this relief. The first defence they
offered was the same as that of Mr Ramokgopa, namely, that as more than three
years had elapsed since the date upon which the appellant’s claim for re-transfer
of the property had become due, it had prescribed. However they also relied on
certain additional defences, namely: that the appellant had consented to the
proposed consolidation in terms of a tacit term of the sale; and that the appellant
should be estopped from relying on the fact that the property had not been
developed within the building period of 18 months. They also contended that
the condition registered against the title deed of their property differed from
what had been agreed upon in the deed of sale, and regard should therefore be
had to the sale terms. However rectification of the title deed was not fully
ventilated in the papers nor was it claimed in the proceedings in the court a quo.
For present purposes the matter must therefore be decided having regard to the
title deed.

[6] As appears from this, common to both appeals is the issue whether the
appellant’s claim for re-transfer of the property prescribed three years after its
claim became due when the respondents failed to erect a dwelling on their
respective properties within the 18 month building period. The respondents
allege it did. It is their contention that the claim for re-transfer constitutes a
‘debt’ for the purposes of the Prescription Act 68 of 1969, but not one
envisaged in ss 11(a), (b) or (c) of that Act. They therefore submit that, in terms
of s 11(d) of the Act, the prescriptive period is three years. On the contrary, the
appellant argues the registered condition gives rise to a real right which does not
prescribe within three years and not merely a personal right in favour of the
appellant.

[7] Before turning to deal with these opposing contentions, it is first
necessary to mention the recently reported decision in  Bondev Midrand (Pty)
Ltd v Madzhie & others 2017 (4) SA 166 (GP) which the parties’ legal
representatives most correctly drew to our attention. In that case the court
concluded that a similar repurchase clause was grossly unfair to a purchaser
intending to build a residential home, that it infringed the constitutional right to
adequate housing and that enforcing it would be against public policy. Relying
upon this, the respondents in the present case suggested that the appellant’s
claims against them were similarly not enforceable.

[8] As appears from the judgment in Madzhie, the application to re-transfer
the property was unopposed and the matter came before court for judgment by
default. When the matter was initially called on 12 August 2016, the learned
acting judge informed counsel for the applicant that he was inclined to dismiss
the application as he had reservations relating to the question ‘whether this type
of retransfer clause is consistent with public policy and with the provisions of
s 26(1) of the Constitution’. The matter was then postponed until 19 August
2016 for counsel to prepare heads of argument relating to the issue. However,
on that date counsel for the applicant indicated in chambers that the applicant

had filed a notice of withdrawal, tendering costs. Uniform rule 41(1)(a)
provides that once a matter had been set down a party may withdraw
proceedings with the leave of the court, and such leave was granted. That
should have been the end of the matter as it is not ordinarily the function of a
court to force a party to proceed with an action against its will or to investigate
why the party wishes to abandon such action – see Levy v Levy 1991 (3) SA 614
(A) at 620B. But four months later the learned acting judge gave reasons for
consenting to the withdrawal. He dealt with various constitutional issues, stating
that the clause was grossly unreasonable towards a purchaser ‘that wishes to
pursue the suburban dream incrementally’1 and that a repurchase clause is ‘not
central to the business of a developer or the operations of a homeowners
association,’2 before concluding that the present type of repurchase clause is an
instance where enforcement should be refused.3

[9] With due respect, the least said about this judgment is probably the better.
It obviously reflects the learned acting judge’s personal viewpoint but it was
inappropriate, to say the least, to have pronounced upon the issue in the
circumstances. As I have said, the applicant wished to abandon an application
for default judgment and all that was required was the court’s consent. This was
not an instance that required a formal judgment, let alone one in respect of
constitutional issues that had not been raised or canvassed in the papers and in
respect of which interested parties had neither been forewarned nor heard. A
court should refrain from dealing with legal issues unnecessary to determine in
order to properly deal with a matter before it. This is all the more so in
Constitutional matters. As the Constitutional Court said in Albutt4 a passage to
which it subsequently referred with approval in Aurecon:5

1 Para 35.
2 Para 47.
3 Paras 53 and 54.
4 Albutt v Centre for the Study of Violence and Reconciliation & others 2010 (3) SA 293 (CC); [2010] 5 BCLR
391; [2010] ZACC 4 para 82.
5 City of Cape Town v Aurecon South Africa (Pty) Ltd 2017 (4) SA 223 (CC) para 35.

‘Sound judicial policy requires us to decide only that which is demanded by the facts of the
case and is necessary for its proper disposal. This is particularly so in constitutional matters,
where jurisprudence must be allowed to develop incrementally. At times it may be tempting,
as in the present case, to go beyond that which is strictly necessary for a proper disposition of
the case. Judicial wisdom requires us to resist the temptation and to wait for an occasion
when both the facts and the proper disposition of the case require an issue to be confronted.
This is not the occasion to do so.’

[10] In the light of the paucity of the information before it, and not having
heard the various parties who may well be interested in a matter such as this, it
was inappropriate for the court in Madzhie to reach the conclusion that it did in
regard to the constitutionality and lack of enforceability of the repurchase clause
that was registered against the title deeds of the property.

[11] We were informed from the bar that the Registrar of Deeds now views
the judgment in Madzhie as binding and, consequently, now refuses to register
deeds containing such clauses. This is extremely unfortunate, bearing in mind
that clauses of this nature are relatively common and are regularly registered at
the instance of developers and local authorities. In the light of what I have said
above, those employed in the Deeds Office should not regard the judgment in
Madzhie as an authoritative judgment, binding upon them.

[12] I return to the issue at hand, namely, whether the claim for re-transfer
constitutes a debt capable of prescribing or a real right. The condition in
question consists of two clauses. The first obliges the transferee or its
successors in title to erect a dwelling on the property within a period of 18
months. The second provides that in the event of a dwelling not being erected
within that period, the appellant is entitled but not obliged to have the property
retransferred to it against return of the purchase price.

[13] The first clause reflects an intention to bind not only the transferee but its
successors in title. Moreover, the requirement that a dwelling be erected on the

property results in an encumbrance upon the exercise of the owner’s rights of
ownership of its land. Accordingly, in the light of authority such as Willow
Waters,6 this first clause gives rise to a real right. Indeed, I did not understand
the respondents to contend otherwise.

[14] On the other hand, the right of the appellant to claim re-transfer of the
property against repayment of the original purchase price as set out in the
second clause does not amount to such an encumbrance. It is a right which can
only be enforced by a particular person, the appellant, against a determined
individual, and does not bind third parties.  Not only is this the hallmark of a
personal right,7 but it is a right which the appellant can exercise at its sole
discretion. In these circumstances I understood that both sides were agreed that
if that clause had been standing alone, it would not have carved out a portion of
the respondents’ dominium and would therefore be regarded as creating a
personal right.8

[15] Section 63(1) of the Deeds Registries Act 47 of 1937 prescribes that no
condition in a deed ‘purporting to create or embodying any personal right . . .
shall be capable of registration’. But although only real rights and not personal
rights should be registered against a title deed, the fact that a personal right
becomes registered does not, in itself, convert that right into a real right. Almost
100 years ago, Innes CJ observed that ‘(a) jus in personam does not become a
jus in rem because it is erroneously placed upon the register’9 and this remains
the position to this day.10 The appellant argued, however, that although the
second clause appeared to create a personal right, it is so inextricably wound up

6 Willow Waters Homeowners Association (Pty) Ltd v Koka NO & others 2015 (5) SA 304 (SCA) para 16 and
22 and the authorities there cited.
7 See eg Absa Bank Ltd v Keet 2015 (4) SA 474 (SCA) para 20. H Mostert and A Pope The Principles of the
Law of Property in South Africa (2010) at 45.
8 Compare: National Stadium South Africa (Pty) Ltd & others v Firstrand Bank Ltd 2011 (2) SA 157 (SCA) para
33.
9 British South Africa Company v Bulawayo Municipality 1919 AD 84 at 93.
10 See eg Fine Wool Products of South Africa, Ltd, & another v Director of Valuations 1950 (4) SA 490 (E) at
499B-C, Nel, NO v Commissioner for Inland Revenue 1960 (1) SA 227 (A) at 34H-35A, Titty’s Bar and Bottle
Store (Pty) Ltd v ABC Garage (Pty) Ltd & others 1974 (4) SA 362 (T) at 367H and Lorentz v Melle & others
1978 (3) SA 1044 (T) at 1049.

with the first clause, which clearly created a real right, that the two clauses were
to be read together as creating a real right which is capable of registration.

[16] The appellant relied upon the decision of this court in Cape Explosive
Works Ltd & another v Denel (Pty) Ltd & others 2001 (3) SA 569 (SCA) to
support this argument. In that matter the first appellant, Capex, had sold and
transferred two pieces of land to Armscor. The deed of transfer contained two
restrictions imposed upon Armscor and its successors in title in favour of
Capex: first, that the land was to be used only for the manufacture of armaments
and, second, that if the land was no longer required for that purpose, Armscor
was to advise Capex of that fact and Capex would have the ‘first right to
repurchase’ the land. If it did not avail itself of that right, the restriction on
ownership would fall away. In due course Armscor transferred the properties to
Denel but in circumstances unnecessary to detail, the second condition was not
registered against their title deeds while the first condition was registered only
in respect of a small portion of one property. Denel sought an order declaring its
ownership of both portions to be unencumbered by condition 2. Capex, in turn,
brought a counter-application seeking rectification of the title deeds of both
properties to reflect both conditions.

[17] It was argued on behalf of Denel, that the second condition constituted a
personal right in the nature of an option to repurchase which could not
constitute a valid real right as it imposed an obligation on the part of the
transferee, Denel, to notify Capex when the property was no longer required for
the use to which it had been restricted. Denel therefore submitted that the
second condition could not validly be registered against the title deed, so that it
was entitled to the relief it sought and that the title deed could not be rectified in
this regard. In rejecting this, Streicher JA, writing for a unanimous court, stated:
‘In my view, the stipulation referred to was not intended to burden the transferee with an
obligation. Condition 1 contained a use restriction and condition 2 provided that in the event
of the property no longer being required for the use to which it was restricted Armscor or its

successors in title would advise Capex accordingly, whereupon Capex would become entitled
to repurchase the property, failing which the property would no longer be subject to the use
restriction. Upon the property no longer being required for the restricted use it would be
useless to the owner thereof unless Capex repurchased it or the use restriction could be
terminated. Condition 2 was intended to provide Armscor and its successors in title with a
mechanism for such termination. Hence, although framed as an obligation, the giving of
notice was as much a right as an obligation. . . .
The use restriction according to condition 1 was materially different from the use restriction
according to condition 1 read with condition 2. The two conditions were not independent of
one another and they could not be separated. They formed a composite whole. They were
specifically stated to be binding on the transferee, being Armscor, and its successors in title.
Furthermore, they constituted a burden upon the land or a subtraction from the dominium of
the land in that the use of the property by the owner thereof was restricted. The right
embodied in conditions 1 and 2, read together, therefore constituted a real right which could
be registered in terms of the Deeds Registries Act.’11

[18] As appears from this, Denel’s right as transferee under condition 2 to give
notice to the transferor, Capex, that the property was no longer being used for
the specified purpose, provided a mechanism to terminate the restriction upon
the rights of ownership. Either Capex would repurchase the property or, if it
was not inclined to do so, Denel would retain its ownership, free of the
restriction. The encumbrance of the land created by condition 1 could only
continue until such time as Denel gave Capex a notice under condition 2. Thus
the restriction on ownership in condition 1 was inseparably bound up with
condition 2.

[19] But that is a far cry from the circumstances in the present cases. The
burden created by the first clause, namely the obligation to build a dwelling on
the property, is binding on the transferees (the respondents) and their successors
in title. The latter have no right under the second clause to bring that restriction
to an end. All clause two provides is that in the event of a failure to build a
dwelling in the requisite time the appellant, as the transferor, can recover the

11 Paras 14-15.

land against the payment of the purchase price if it so chooses. This is akin to
providing the appellant with an option to purchase which is essentially a
personal right.12 But the appellant is not obliged to demand or claim re-transfer
of the land and the obligation to build will remain extant as long as the
respondents retain their ownership. Thus the restriction upon ownership created
by clause 1 remains binding and will not be terminated should the appellant
elect not to seek retransfer. The two clauses read together therefore do not
constitute what Streicher JA referred to as ‘a composite whole’ restricting the
respondents’ use of the property. 13

[20] In the circumstances, the first clause of this condition must be regarded as
providing a real right and a restriction upon the ownership of the property of the
respondents and their successors in title. On the other hand, the second clause
under which the appellant has the election to claim re-transfer of the property,
creates no more than a personal right akin to an option to purchase which is not
inseparably bound up with the first clause. As the appellants sought to enforce
this second clause, the issue then becomes whether the debt which is the subject
of such a claim has prescribed.

[21] Until fairly recently, it was accepted that the term ‘debt’ used in the
Prescription Act 68 of 1969, but not defined in that Act, should be interpreted as
having a wide meaning – see eg Desai NO v Desai & others 1996 (1) SA 141
(A) at 146I-J. However, in a series of judgments of the Constitutional Court it
has now been held that in the modern constitutional era the term must be
interpreted more narrowly than what was previously the case – see Makate v
Vodacom Ltd 2016 (4) SA 121 (CC) paras 87-93 and Off-Beat Holiday Club &
another v Sanbonani Holiday Spa Shareblock Ltd & others CCT 106/16 (23
May 2017) para 44. However although these decisions have been somewhat

12 Barnhoorn NO v Duvenhage & others 1964 (2) SA 486 (A) at 494F-H
13 Cape Explosive Works para 14.

controversial,14 and it may well be that the ‘precise boundaries of the husk left
by the Makate axe’15 may not yet have been determined, it appears to be settled
that even on a narrow meaning a ‘debt’ includes the right to claim the return of
property. Indeed, in the present case I understood the appellant to accept that if
its right to claim re-transfer of the immovable property is to be regarded as a
personal right, not only would prescription have begun to run on the date by
when the title deed reflected a dwelling had to be erected, but that the
appellant’s claim in each case had prescribed before proceedings were
commenced.

[22] In the light of our conclusion that the second clause of the condition does
indeed create no more than a personal right, the appellant’s claim in each case
was therefore correctly dismissed by the court a quo on the basis of prescription.
This renders it unnecessary to deal with the other issues raised by the
respondents, Mr and Mrs Puling, in case 802/2016.

[23] Accordingly, in each of these cases, the appeal must be dismissed. There
is no reason for costs not to follow the event.

[24] In each case the following order will issue:
The appeal is dismissed with costs.

______________
L E Leach
Judge of Appeal

14 See eg F Snyckers ‘Prescription Under Siege’ (2017) 29 Advocate Vol 30 No 2 at 30.
15 The phrase is plagiarised from Snyckers op cit.

Appearances: (Case No: 802/2016)

For Appellant:

S J Grobler SC (with him N J Horn)
Instructed by:

Tim Du Toit Attorneys, Johannesburg

Phatshoane Henney Inc, Bloemfontein

For Respondent:

G Wagenaar
Instructed by:

Gerhard Wagenaar Attorneys, Lynnwood Glen

Symington & De Kok Inc Attorneys, Bloemfontein

Appearances: (Case No: 803/2016)

For Appellant:

S J Grobler SC (with him N J Horn)
Instructed by:

Tim Du Toit Attorneys, Johannesburg

Phatshoane Henney Inc, Bloemfontein

For Respondent:

M E Manala
Instructed by:

Mothle Jooma Sabdia Inc, Pretoria

Matsepes Inc, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED
IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
2 October 2017
Status:
Immediate

Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal.

BONDEV MIDRAND (PTY) LTD
v
PULING PULING

AND

BONDEV MIDRAND (PTY) LTD
v
PETRUS KGOSI RAMOKGOPA

The appellant in both these matters, Bondev Midrand (Pty) Limited, is a
property developer. In both cases it had unsuccessfully sought an order in the
High Court in Pretoria, obliging the respondents to re-transfer immovable
property that it had earlier sold to them. It sought this relief on the basis of a
condition registered against the title deed which obliged the respondents to

erect dwelling on their property within a prescribed period and that, in the
event of them failing to do so, entitling but not obliging the appellant to claim
re-transfer of the property against tender of the original purchase price.

In both cases the respondent failed to erect a dwelling on its property within
the prescribed period. And in both cases, more than three years had elapsed
from the date upon which they had been obliged to do so, before the appellant
claimed re-transfer. The respondents thus both alleged that the appellant’s
claim had prescribed. In both cases, this plea was upheld.

In the Supreme Court of Appeal the appellant contended that the condition
registered against the title deeds conferred a real right upon it and that its right
to claim re-transfer was therefore not capable of prescribing within three
years. In support of this conclusion, it relied upon the decision of the Supreme
Court of Appeal in Cape Explosive Works Ltd v Denel (Pty) Ltd 2001 (3) SA
569 (SCA). In that case the court had held that two conditions, one of which
appeared to be a personal right while the other reflected a real right, were so
closely bound up with each other that both should be regarded as constituting,
together, a real right. Relying upon this it was argued that the condition that
respondents build a dwelling within the prescribed period created an
encumbrance upon the property, and therefore a real right, and that this was so
intimately bound up with the respondents’ right to claim re-transfer of the
property, that the condition that was registered should be interpreted as
creating a real right not subject to a three year prescriptive period.

The Supreme Court of Appeal concluded that the second clause of the
condition was akin to providing the appellant with an option to purchase,

essentially a personal right, and that the restriction created by clause 1 to build
a dwelling would not be terminated should the appellant in its discretion
decide not to seek re-transfer. It therefore concluded that the two clauses read
together do not constitute a composite whole restricting the respondents’ use
of property. In these circumstances the second clause created no more than a
personal right which was capable of prescribing.

It therefore held that in each case the appellant’s claim had prescribed, and
dismissed the appeal.