THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 443/12

In the matter between

Not Reportable

MUNICIPALITY OF MOSSEL BAY

APPELLANT

and

THE EVANGELICAL LUTHERAN CHURCH                FIRST RESPONDENT

THE REGISTRAR OF DEEDS

SECOND RESPONDENT

Neutral citation:  Municipality of Mossel Bay v The Evangelical Lutheran
Church (443/12) [2013] ZASCA 64 (24 May 2013)

Coram:
LEWIS, THERON and MAJIEDT JJA and PLASKET and ZONDI
AJJA

Heard:
9 MAY 2013

Delivered:
24 MAY 2013

Summary:
Property Law – interpretation of restrictive conditions
embodied in title deeds relating to use of land – on undisputed facts
land no longer used for the purposes specified – use of the word ‘or’ in
the restrictive conditions plainly disjunctive – breach clearly proved on
undisputed facts, entitling appellant to re-transfer of the land.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: Western Cape High Court, Cape Town (Baartman J, sitting
as court of first instance):

1. The appeal is upheld with costs.
2. The order of the court below is set aside and substituted with the following:
‘(a) Erf 2002, Mossel Bay, held by the first respondent in terms of Deed of
Transfer T4823/1941 is to revert to the applicant due to the first
respondent’s failure to comply with the provisions of clauses (b) B(1) and
(2) of the said Deed of Transfer, by not using Erf 2002 for church or
educational purposes.
(b) The first respondent is ordered to take all steps necessary to effect
registration of transfer of Erf 2002 into the applicant’s name within 30 days
of this order.
(c) In the event of the first respondent failing to comply with paragraph (b)
above, the Sheriff of Mossel Bay is authorised to sign all the necessary
documents on behalf of the first respondent.
(d) Erf 2003, Mossel Bay, held by the first respondent in terms of Deed of
Transfer 8366/1938, is to revert to the applicant due to the first
respondent’s failure to comply with the provisions of clause B(a) of the said
Deed of Transfer, by not using Erf 2003 for church purposes.
(e) The first respondent is ordered to take all steps necessary to effect
registration of transfer of Erf 2003 into the applicant’s name within 30 days
of this order.
(f) In the event of the first respondent failing to comply with paragraph (e)
above, the Sheriff of Mossel Bay is authorised to sign all the necessary
documents on behalf of the first respondent.
(g) The applicant is to bear the costs of registration of transfer of Erven
2002 and 2003 into its name.
(h) The first respondent is to pay the costs of the application.’

______________________________________________________________

JUDGMENT
______________________________________________________________

MAJIEDT JA (LEWIS and THERON JA and PLASKET and ZONDI AJJA
concurring):

[1] The appellant, the Mossel Bay Municipality, appeals with the leave of
this court against a judgment of Baartman J, sitting as court of first instance in
the Western Cape High Court, Cape Town, dismissing with costs the
municipality’s application for the retransfer to it of certain immovable property
in Mossel Bay by the first respondent, the Evangelical Lutheran Church.

[2] The church is the registered owner of Erf 2002, Mossel Bay, held under
Title Deed T4823/1941 and Erf 2003, Mossel Bay, held under Title Deed
T8366/1938 (the properties). The title deeds contain restrictive conditions in
favour of the municipality. These restrictive conditions emanate from the
original deeds of grant whereby the properties had been allocated to the
municipality’s council on 9 October 1917. The salient restrictive conditions in
respect of Erf 2002 read as follows:

‘(B) (1) The property in question shall be used solely for church or educational

purposes, provided that in addition to any church or school buildings
erected on the land, a parsonage or a caretaker’s house may be
erected;
(2) The land shall be used solely for the purposes set out in (1) above. If at any
time it ceases to be used for such purpose, or is no longer required for such
purpose, it shall revert to the Council without payment of compensation of any
improvement effected on or to the land.’

[3] In respect of Erf 2003 the relevant restrictive condition is as follows:
‘(a) [I]n the event of the property not being used for Church purposes it shall revert to
the Council, save and except that in addition to the Church one dwelling as a
parsonage or a caretaker’s house may be erected in respect of the property.’

[4] The municipality sought a retransfer of the properties to it on the basis
of non-compliance by the church of the conditions contained in clauses B(2),
read with B(1) above, in respect of Erf 2002, and clause (a) above in respect
of Erf 2003. The nub of the dispute is whether the church has, in
contravention of the restrictive conditions, ceased using the property solely for
church or educational purposes or no longer requires the land for these
purposes, as far as Erf 2002 is concerned and, in the case of Erf 2003,
whether the property is not being used for church purposes.

[5] The underlying facts are largely undisputed.  It was common cause that
the church had erected a school and an outbuilding on Erf 2003 and
conducted schooling activities there until December 2005. The adjoining Erf
2002 was used as school grounds until that date. It became common cause
further, as will presently appear, that since January 2006 no schooling
activities have been taking place and that the buildings have been standing
vacant. While the parties were at variance with each other as to the exact
state of neglect of the vacant buildings, it is largely undisputed that they are
derelict. This is borne out by photographs attached to both the founding and
answering affidavits.

[6] I interpose at this juncture to comment briefly on the manner in which
the answering affidavit was drafted. Paragraphs 1 to 21 of the founding
affidavit set out the factual background of the matter, including the transfer of
the properties, the restrictive conditions and the present state of disuse of the
properties. In its answering affidavit the church elected to lump all these

paragraphs together and to meet all the averments therein with the following
terse, non-committal bare denial (loosely translated):
‘Save to deny that all facts contained in the founding affidavit of the deponent Prins,
under reply, are true and correct, as will more fully appear hereinafter, the rest of the
averments are noted.’
In this answer the drafter is remiss in his or her duty to meet any and all
material averments in the founding affidavit by either admitting or denying, or
confessing and avoiding, unless he or she has no knowledge of any one or
more or all of them. A bare or unsubstantiated denial will only pass muster
where there is no other option available to a respondent due to, for example,
a lack of knowledge, and nothing more can be expected of the respondent
(see: Wightman t/a J W Construction v Headfour (Pty) Ltd 2008 (3) SA 371
(SCA) para 13; National Scrap Metal (Cape Town) (Pty) Ltd v Murray &
Roberts Ltd 2012 (5) SA 300 (SCA) para 17). A bare denial, in circumstances
where a disputing party must necessarily be conversant with the facts averred
and is in a position to furnish an answer (or countervailing evidence) as to its
truth or correctness, does not create a real and genuine dispute of fact
(Wightman, ibid). A proper answer to material averments under reply requires,
at the minimum, a separate and unequivocal traversal of each and every such
allegation which the party seeks to contest. The important allegation in para
21 of the founding affidavit – that the properties have fallen into disuse since
January 2006 and that no one has been attending to the maintenance of the
buildings since then – must therefore, in the face of this bare, unsubstantiated
denial, be accepted as correct.

[7] The church did deal seriatim with paragraphs 22 and 23 of the founding
affidavit, which concerned the derelict state of the buildings, its vandalisation
(supported by photographic evidence) and the unacceptability of this state of
affairs as far as the municipality is concerned. While disputing the extent of
the neglect, the church importantly admitted that the buildings have decayed
due to pillaging (‘plundering’). For the rest, it embarked on an irrelevant detour
which need not burden this judgment.

[8] The church’s defence, in essence, amounts to this: it has always used
and intends to continue using the properties for church or educational
purposes and its temporary cessation of schooling activities there is purely as
a consequence of its temporary impecuniosity. It expressed a firm belief that it
would, with time, succeed in obtaining adequate financial assistance to
overcome its difficulties and to recommence schooling on the properties. In
supplementary papers it set out a short and long term vision for the use of the
properties, including an ambitious charitable project, named ‘Icthus’ (the
Greek word for fish, a well-known symbol in the Christian faith) and, in the
longer term, the establishment of a training centre for ministers on the
properties.

[9] Extensive negotiations between the parties failed to resolve the
impasse. I must make mention of the fact that, in this regard, the municipality
has gone to great lengths to find an amicable solution and to accommodate
the church. When all else failed, it launched its application in the court below
during February 2010, by which time the properties had been in disuse for
over four years already. It was incumbent upon the municipality to act in the
interest of its residents, in order to fulfil its constitutional mandate towards
them, as set out in s 152 of the Constitution. The municipality can certainly not
be faulted for approaching the court as a last resort, when all its
compassionate efforts towards attaining an extra-curial solution came to
nought.

[10] The issue before us plainly requires an interpretation of the relevant
restrictive conditions. In the court below Baartman J held that, in interpreting
the conditions, the Constitution’s property clauses, namely ss 25(1) and (2),
must be given proper recognition and that the church’s intention is crucial in
determining whether the properties are required for a particular purpose. In
applying the well-established approach to disputes of fact in motion
proceedings, the learned judge accepted that the school and outbuilding have

been vandalised, but that they are capable of repair and further that the
church intended to effect the necessary repairs once it acquired the financial
means to do so and to recommence schooling activities. The learned judge
concluded that the restrictive conditions in respect of Erf 2002 had not been
breached, since the church still required it for church or educational purposes,
as evinced by its intention. That intention, held Baartman J, was also relevant
in respect of Erf 2003, since the two erven have always been used as a single
entity.

[11] The court below misconstrued the restrictive conditions, in particular
the words ‘. . . or is no longer required for such purpose’. It is not proper for a
court to excise from a clause containing restrictive conditions one part thereof
and to use the excised portion to interpret the entire clause. The conditions
had to be viewed holistically by the court a quo in determining their meaning.
The words in the relevant restrictive conditions are clear and unambiguous. It
is by now well-established that, in  interpreting these conditions, the words
must be given their ordinary grammatical meaning unless this would lead to
absurdity, repugnancy or inconsistency with the rest of the title deeds’
conditions (see, inter alia, Picardi Hotels Ltd v Thekwini Properties (Pty) Ltd
2009 (1) SA 493 (SCA) para 5; Du Plessis NO v Goldco Motor & Cycle
Supplies (Pty) Ltd 2009 (6) SA 617 (SCA) para 49; Phillips v SA Reserve
Bank [2012] 2 All SA 532 (SCA) para 67). There is no difference in principle in
the interpretation of statutes, contracts or other documents (KPMG Chartered
Accountants (SA) v Securefin Ltd 2009 (4) SA 399 (SCA) para 39.)

[12] The court below completely ignored the first part of the condition in B
(2), set out in para 2 above, namely ‘(i)f at any time it [the land] ceases to be
used for such purpose [ie church or educational purposes] . . .’ and chose to
restrict its enquiry to the latter part of the condition, namely ‘. . . or is no longer
required for such purpose’. As stated, the court below held that the church’s
stated intent (which the court accepted) was that it planned to recommence
schooling once its finances permitted it to do so and the church consequently

still required the land for such (educational) purpose. Apart from the problem
with the impermissible excision, pointed out above, the court below also
misconstrued the use of the word ‘or’ in the condition. That word is plainly
used as a disjunctive, ie signifying a substitution or an alternative. It is trite
that ‘or’ is to be construed as a conjunctive, ie reading it as ‘and’, in only the
most exceptional of cases where the context demands it. See inter alia
Preddy v Health Professions Council of South Africa 2008 (4) SA 434 (SCA)
paras 10 – 12, and the cases cited there. It is also trite that, in the process of
determining what the plain, ordinary grammatical meaning of words are,
regard must be had to the context in which the words have been used. In the
leading case on this aspect Schreiner JA expressed it as follows in Jaga v
Dönges, NO 1950 (4) SA 653 (A) at 662G:
‘Certainly no less important than the oft repeated statement that the words and
expressions used in a statute must be interpreted according to their ordinary
meaning is the statement that they must be interpreted in the light of their context’.
This dictum has been followed in a long line of cases, the most recent of
which in this court are Natal Joint Municipal Pension Fund v Endumeni
Municipality 2012 (4) SA 593 (SCA) and South African Property Owners
Association v Council of the City of Johannesburg Metropolitan Municipality
2013 (1) SA 420 (SCA).

[13] When the restrictive conditions are holistically interpreted by giving the
words therein their ordinary grammatical meaning, in their contextual setting,
the church is plainly in contravention of the restrictions, it being common
cause (for the reasons expounded above) that the properties are no longer
used for educational or church purposes. Whatever the stated intent of the
church as to its future usage may be, this cannot and does not salvage its
breach. The court below erred in finding to the contrary and the appeal ought
therefore to succeed.

[14] I think it necessary to say something briefly about two further aspects
of the judgment of the court below. It held, on alternative grounds, that there

was a critical shortage of premises suitable for educational purposes and that
the municipality had failed to demonstrate its willingness to make the
properties available to any other institution for this purpose. Consequently, so
the learned judge held, the municipality had failed to show that it required the
properties for public purposes or in the public interest. Secondly, the court
below found that the municipality had the option of demolishing the buildings if
they were in as bad a state as the municipality alleged. This option emanates
from the provisions contained in s 12 of the National Building Regulations and
Building Standards Act 103 of 1977. The municipality’s failure to resort to this
option, said the judge, is at odds with the case it sought to make out in its
founding
papers.
These
two
aspects
are
self-evidently
irrelevant
considerations. The dispute between the parties simply required a legal
interpretation of the restrictive conditions, applied to the factual background
(which, as stated, was largely or became common cause) in order to
determine whether reversion of the properties to the municipality was
warranted. The court below erred in veering off-course in respect of these two
aspects and its conclusions do not provide a legally tenable alternative basis
for its dismissal of the application.

[15] The following order is made:
1. The appeal is upheld with costs.
2. The order of the court below is set aside and substituted with the
following:
‘(a) Erf 2002, Mossel Bay, held by the first respondent in terms of Deed
of Transfer T4823/1941 is to revert to the applicant due to the first
respondent’s failure to comply with the provisions of clauses (b) B(1)
and (2) of the said Deed of Transfer, by not using Erf 2002 for church
or educational purposes.
(b) The first respondent is ordered to take all steps necessary to effect
registration of transfer of Erf 2002 into the applicant’s name within 30
days of this order.

(c) In the event of the first respondent failing to comply with paragraph
(b) above, the Sheriff of Mossel Bay is authorised to sign all the
necessary documents on behalf of the first respondent.
(d) Erf 2003, Mossel Bay, held by the first respondent in terms of Deed
of Transfer 8366/1938, is to revert to the applicant due to the first
respondent’s failure to comply with the provisions of clause B(a) of the
said Deed of Transfer, by not using Erf 2003 for church purposes.
(e) The first respondent is ordered to take all steps necessary to effect
registration of transfer of Erf 2003 into the applicant’s name within 30
days of this order.
(f) In the event of the first respondent failing to comply with paragraph
(e) above, the Sheriff of Mossel Bay is authorised to sign all the
necessary documents on behalf of the first respondent.
(g) The applicant is to bear the costs of registration of transfer of Erven
2002 and 2003 into its name.
(h) The first respondent is to pay the costs of the application.’

________________________

S A MAJIEDT

JUDGE OF APPEAL

APPEARANCES

For Appellant:
Adv. R S van Riet SC

Instructed by:

Krige Zietsman Attorneys

c/o Werksmans Attorneys, Cape Town

Lovius Block Attorneys, Bloemfontein

For Respondent:
Adv. J de Vries

Instructed by:

Liesel Scholtz Inc

c/o Nawaal Cloete Attorneys, Cape Town

Van Pletzen Lambrechts Attorneys, Bloemfontein