THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

NOT REPORTABLE
Case No: 159/2014

In the matter between:

RED DUNES OF AFRICA CC                                                   APPELLANT

and

MASINGITA PROPERTY INVESTMENT
HOLDINGS (PTY) LTD                                                     1ST RESPONDENT

ZEBEDIELA NDEBELE TRIBAL COUNCIL               2ND RESPONDENT

THE MINISTER, RURAL DEVELOPMENT
AND LAND REFORM                                                       3RD RESPONDENT

MEC LIMPOPO PROVINCIAL DEPARTMENT
OF ECONOMIC DEVELOPMENT, ENVIRONMENT
AND TOURISM                                                                  4TH RESPONDENT

LEPELLE-NKUMPI LOCAL MUNICIPALITY
5TH RESPONDENT

In the matter between:

RED DUNES OF AFRICA CC

APPELLANT

and

MASINGITA PROPERTY INVESTMENT
HOLDINGS (PTY) LTD                                                     1ST RESPONDENT

MASINGITA VLAMING CONSTRUCTION
(PTY) LTD                                                                           2ND RESPONDENT

MONICA LEOLO                                                              3RD RESPONDENT

Neutral citation: Red Dunes of Africa v Masingita Property Investment
Holdings (159/2014) [2015] ZASCA 99 (1 June 2015)

Coram:
Ponnan, Shongwe and Pillay JJA and Fourie and
Gorven AJJA

Heard:

25 May 2015

Delivered:
1 June 2015

Summary: Right to develop property ─ appellant relying on an agreement
containing suspensive conditions ─ cannot be relied upon to found any rights
where there is no averment that the suspensive conditions were fulfilled or
waived ─ appellant also relying on resolution purporting to transfer a
Permission to Occupy ─ no actual transfer ─ even if transfer took place, no
right to develop founded ─ appeal dismissed.

___________________________________________________________________________

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Kganyago AJ
sitting as court of first instance)

The appeal is dismissed with costs, including those occasioned by the
employment of two counsel where applicable.

JUDGMENT

Gorven AJA (Ponnan, Shongwe, Pillay JJA and Fourie AJA concurring):

[1] The use of property for commercial purposes is often hotly contested.
This appeal arises from just such a contestation. It relates to two properties.
Both nominally vest in the third respondent, the Minister for Rural
Development and Land Reform. Both fall under the jurisdiction and control of
the Zebediela Ndebele Tribal Council (the Council). The first respondent,
Masingita Property Investment Holdings (Pty) Ltd (Masingita), claims that it
has a right to construct a community shopping mall on one property (the mall
property). The appellant, Red Dunes of Africa CC (Red Dunes), claims that it
has a right to construct a shopping centre on the other property (the café
property).

[2] In the court below, Masingita launched an application against the
Council, as the first respondent, and Red Dunes, as the second respondent.
Masingita sought to enforce an agreement which it alleged it had with the
Council to develop the mall property and to interdict Red Dunes from

continuing with construction which it had commenced during September or
October 2012 (the main application). The basis of the main application was that
the construction in question was located at least partly on the mall property. Red
Dunes opposed that application and itself brought an application, claiming
spoliatory relief and reinstatement to possession of what it said was the café
property (the spoliation application). The Council opposed the main application
and the appeal but was not a party to the spoliation application. The other
parties did not enter the fray at any stage.

[3] The matters were heard together in the Gauteng Division of the High
Court, Pretoria before Kganyago AJ. The court below made no order relating to
the spoliation application, holding that the outcome of the main application had
rendered it moot. Masingita did not persist in the relief sought against the
Council. This was because the Council demonstrated in its answering affidavit
that it had not breached the agreement relied upon by Masingita and made
common cause with Masingita in respect of the relief sought against Red Dunes.
The court below granted relief in favour of Masingita against Red Dunes as
follows: (a) an interdict from constructing any development on the mall
property; (b) a declaration that any development by Red Dunes on the mall
property was unlawful; (c) an order directing Red Dunes to demolish any
structures on the mall property; and (d) an order that Red Dunes pay the costs of
the application and counter-application, including those of two counsel.

[4] Red Dunes was granted leave to appeal by the court below against the
dismissal of the spoliation application and the grant of relief under the main
application. Red Dunes has abandoned the appeal against the outcome of the
spoliation application and tendered any associated wasted costs. Nothing further
need be said in this regard. The appeal before us, accordingly, lies only against

the relief granted in favour of Masingita against Red Dunes in the main
application.

[5] The issue on appeal is whether the court below correctly granted the
relief. Both in the court below and in this court Red Dunes raised two issues.
First, whether Masingita proved that it has a clear right. This resolves itself in
essence into the question whether Masingita proved a right to develop the mall
property and the concomitant finding that Red Dunes did not prove a prior right
of development. Secondly, whether the construction of Red Dunes encroached
on the mall property.

[6] I shall begin with the second of these. Despite its assertion to the
contrary, Red Dunes itself claimed that there was „incontrovertible proof that
the [café] property was . . . included in the mall property‟. In addition, when
Masingita asserted that the inclusion of the café property contributed to the
extent of the mall property increasing from 5,0969 hectares to 5,2695 hectares,
this was not denied. Finally, each party put up a survey diagram of the property
to which that party claimed rights, containing the usual references to fixed
points. The mall property has an approved sub-divisional diagram in which it is
described as Portion 3 of the farm Zebedielas Location No. 123 registration
division KS Province of Limpopo, in extent 5,4300 hectares. The café property
does not have an approved sub-divisional diagram or property description. The
diagram put up by Red Dunes comprises all the properties referred to in the
resolution of the Council of 11 May 2007, of which the café property forms a
part. I shall return to the resolution later. In reply, Masingita put up a diagram,
drafted by a land surveyor, which superimposed the diagram co-ordinates of
that property onto those of the mall property. This clearly shows that all but an
insignificant portion of the entire property and the whole of the café property
falls within the mall property. In addition, the foundations of the building which

Red Dunes began constructing were superimposed on a concept sub-divisional
diagram put up by Masingita. The foundations clearly fall inside the mall
property. The issue concerning encroachment must therefore be decided in
favour of Masingita.

[7] The remaining issue concerns the identity of the party with rights to
develop the mall property. The case of Red Dunes is that Masingita does not
have any such rights because a prior right was granted to Red Dunes to develop
a shopping centre on the café property. This right has not been revoked and
therefore the council was not able to grant Masingita rights over property which
included the café property. Red Dunes accepted that its defence to the interdict
application depended on its proving this prior right. Apart from asserting its
prior right, Red Dunes does not seriously contest the right asserted by Masingita
to develop the mall property. As a result, I do not propose to deal in any detail
with the right asserted by Masingita. Suffice it to say that, in my view, this was
adequately demonstrated on the papers. The only issue is whether Red Dunes
proved a prior right to develop the café property.

[8] Red Dunes traces its right to the transfer of a Permission to Occupy (the
PTO) the café property. It says that it obtained these rights in the following
manner. The PTO was issued in 1990 to Mr Samuel Mathibana Mamabolo to
operate a café business. On 7 December 2004, Mr Mamabolo sold the café
business, known as Sams Café, to Mr Alfred Lesibana Tlomatsana for
R120 000. On 29 May 2007 a recordal was made by Mr Mamabolo to the effect
that he had sold the business and his rights in the café property to Mr
Tlomatsana and been paid in full by him. The recordal by Mr Mamabola
concludes with the words: „I am aware that [Mr Tlomatsana] has now decided
to sell to Red Dunes of Africa CC and have no objection thereto.‟ This recordal
was signed by Mr Mamabolo. It was also signed by Mr Tlomatsana above the

words „Purchaser (1)‟ and by a representative of Red Dunes above the words
„Purchaser (2)‟. A written agreement, headed „Land Sale Agreement‟, was
concluded between Mr Tlomatsana and Red Dunes on the same day. The
agreement provided for the sale of the café property by Mr Tlomatsana to Red
Dunes for the sum of R180 000. A resolution was taken by the Council on
11 May 2007 and was signed on 25 May 2007. Red Dunes contended that these
documents link to each other to form a chain proving its right to develop the
café property. This contention must therefore be evaluated.

[9] In the papers, Red Dunes based its case squarely on the sale agreement
concluded with Mr Tlomatsana. This much was also conceded in argument. The
answering affidavit of Red Dunes makes this clear. The deponent says,
variously:

The property to which Masingita lays claim was increased „to include the
separate property that I purchased . . .‟

„Clause 3 of this agreement refers to the conversion of the PTO . . .‟

„Annexure “A” to the . . . agreement is a drawing of the property . . .‟

„[T]he property that Red Dunes acquired was initially not valued . . .‟

„This is incontrovertible proof that the property was acquired by Red
Dunes . . .‟

„. . . Red Dunes acquired the property in 2007 for R180 000.‟

„The agreement referred to was concluded in 2007 . . .‟

„[T]he agreement that Red Dunes concluded was in 2007 . . .‟

„The property had [the rights to erect a shopping centre] when Red Dunes
concluded the agreement.‟

[10] The agreement contains a number of suspensive conditions. One of these
provides that the sale is subject to the conversion of the PTO certificate to a

Title Deed under the provisions of the Upgrading of Land Tenure Rights Act
112 of 1991. The agreement is also made subject to the approval of the sale of
the land in the Title Deed by the Minister of Land Affairs, which itself requires
approval by the Council and the community at large. Once the PTO has been
converted to ownership, further suspensive conditions require the property to be
subdivided and consolidated as a separate erf by the cut-off date, the property to
be rezoned (along with the requirement that all the relevant processes for the
amendment of the town planning scheme are followed and completed) and all
the relevant approvals to be obtained by the cut-off date.

[11] There is no averment on the papers that any of these suspensive
conditions was met. In fact, it was candidly conceded that none had been
fulfilled. The law is clear that, in those circumstances, a party cannot enforce
any rights arising from the agreement.1 Red Dunes initially submitted that it was
unnecessary to fulfil any of the suspensive conditions because it had elected not
to convert the PTO to ownership. This was not, however, the only suspensive
condition. Also, the broader terms of the agreement make it clear that this was
not an election open to Red Dunes. One example which demonstrates this is that
the agreement sets the date of registration of a Deed of Grant as the time that
various actions must be performed, not least the payment of the balance of the
purchase price and the acquiring of possession and the right to occupy. Without
the registration of a Deed of Grant, the agreement does not provide a date for
payment of the purchase price and effect cannot be given to it. This shows that
conversion of the PTO to ownership is integral to the agreement. It was finally
conceded that at least certain of the suspensive conditions had to be fulfilled. As
long ago as Corondimas v Badat,2 it was held that when a contract of sale is
subject to a true suspensive condition, there exists no contract of sale unless and

1 Resisto Dairy (Pty) Ltd v Auto Protection Insurance Co Ltd 1963 (1) SA 632 (A) at 644G-H.
2 Corondimas v Badat 1946 AD 548.

until the condition is fulfilled. Accordingly, and agreement of sale subject to a
suspensive condition cannot, pending fulfilment of the condition, be regarded as
a sale.3 As a result, it was also conceded in argument that Red Dunes could not
found any right to develop the café property on the agreement.

[12] In argument, Red Dunes then switched focus to rely on the resolution of
the Council taken on 11 May 2007. This reads, in its material parts, as follows:
„We, Zebedelia-Ndebele Tribal Authority . . . resolved in the Traditional Council meeting
dated 11 May 2007, that . . . Red Dunes . . . be allocated land as applied for next to Moletlane
Taxi Rank (Mr Tlomatsana‟s Sam‟s Restaurant and a stand behind the restaurant, Mrs Maria
Kekana‟s stand behind Mr Huma‟s shop, the stand behind the Post Office and a 10m road
from the tar road which will be in between the fence of the Post Office and the Soccer
Ground to the Erf behind the Post Office, as entrenched in the diagram emphasising proper
co-ordinates in the company‟s application document submitted to our Tribal Authority).
The land will be utilised for the execution of business activities in the form of a Shopping
Centre.
The move above automatically transfers the P.T.O. previously held by Samuel Mamabolo
(for the operation of Sam‟s Restaurant) into the name of Red Dunes of Africa CC.
The Tribal Authority will assist and have no objection if the applicant in future wishes to
upgrade the status of its occupation.‟

[13] This resolution, it was submitted, transferred the PTO from Mr
Mamabolo to Red Dunes. The PTO was initially given to Mr Mamabolo under
apartheid era land regulations.4 A PTO is defined in the regulations to mean a
„permission in writing granted or deemed to have been granted in the prescribed
form to any person to occupy a specified area of Trust land for a specified
purpose‟.5 It is required to be a formal document „in the prescribed form and be

3 Geue v Van Der Lith 2004 (3) SA 333 (SCA) para 8.
4 Bantu Areas Land Regulations, 1969 (Proclamation R.188 of 1969) promulgated under the Black (Native)
Administration Act 38 of 1927.
5 My emphasis.

registered . . . in [an] allotments register‟.6 According to the PTO issued to Mr
Mamabolo, the café property was to be determined and beaconed by the
Magistrate, could not exceed 0,5 hectares in extent and could be occupied for
the sole purpose of conducting a cafe business and a rental was to be paid for it
annually in advance. The café property could not be sub-let, nor could the right
of occupation be ceded, leased or transferred without the written consent of the
authority concerned. The café property had to be personally occupied and the
business personally conducted by the holder of the PTO unless the person
appointed to do so was approved by the authority concerned.

[14] It is common ground that the PTO was not transferred to Mr Tlomatsana,
nor was a fresh one issued to him. No averment was made in the papers that he
obtained any written consent to occupy it nor was it averred that when the
business was sold to Mr Tlomatsana, the trustee approved his occupation of the
café property or his conduct of the business. The Council, in its affidavit in the
spoliation application which was included by reference in the main application,
averred that no rights arising from the PTO had been transferred to Mr
Tlomatsana. This averment was not challenged. It is doubtless for this reason
that the recordal of 29 May 2007 was made and the resolution of 11 May 2007
was said to „automatically‟ transfer the PTO held by Mr Mamabola, rather than
Mr Tlomatsana, to Red Dunes.

[15] However, Red Dunes did not found its case on the transfer of the PTO.
As mentioned, it founded its case on the agreement which gave rise to the
resolution. In addition, in argument Red Dunes expressly disavowed any
reliance on the resolution as a stand-alone basis for the acquisition of rights in
the café property.

6 Regulation 47(3).

[16] This disavowal was clearly appropriate. The resolution, purporting to
transfer rights accorded to Mr Mamabolo, is at best the last link in the chain of
documents relied on by Red Dunes. The recordal by Mr Mamabolo pertinently
referred to the decision of Mr Tlomatsana to sell to Red Dunes. Without the link
of the agreement, the chain leading to the transfer, and thus the right asserted by
Red Dunes is incomplete.

[17] There are other reasons why no right to develop arise from the resolution.
First, the regulations governing PTOs are still operative. These require the issue
of a formal document and the recordal of the holder in an official register. This
was not said to have been done and, accordingly, Red Dunes failed to prove that
it is the holder of a PTO for the café property. Secondly, even if it can be said
that a transfer of the PTO took place by way of the resolution, the PTO was not
amended and its terms remain those of the PTO which was transferred. These
do not permit of any development of the café property by the holder. Thirdly, in
its affidavit the Council set out the customary law procedure governing the
obtaining of rights to develop a property. This requires a number of steps to be
taken, many of which mirror the suspensive conditions appearing in the
agreement. These averments were dealt with in reply in the spoliation
application by Red Dunes and were not challenged. It is common cause that
none of the required steps has been taken by Red Dunes. Even if the resolution
gave rise to the transfer of the PTO, which is at best doubtful, this does not
accord to Red Dunes a right to develop the café property.

[18] Red Dunes accordingly failed to make out a case that it had a prior right
to develop any part of the mall property. As such, since the right of Masingita
was impugned on that basis, the court below correctly granted the orders, even
though the judgment does not engage with the issues dealt with above.

[19] Masingita proved that it had a clear right to develop the mall property. It
is also clear that the construction by Red Dunes committed an injury to
Masingita. Since Red Dunes refused to remove the encroachment, Masingita
had no alternative but to approach the court below for interdictory and
consequential relief. The three components of a final interdict were accordingly
proved.7

[20] The following order issues:
The appeal is dismissed with costs, including those occasioned by the
employment of two counsel where applicable.

________________________
T R Gorven
Acting Judge of Appeal

7 Setlogelo v Setlogelo 1914 AD 221.

Appearances
For Appellant:
MC Erasmus SC (with him J Rust)

Instructed by: Morne Mostert Inc, Pretoria

Phatshoane Henney Inc, Bloemfontein

For 1st Respondent:
AR Bhana SC (with him JJ Meiring)
Instructed by: Nam-Ford Inc, Pretoria
Claude Reid Inc, Bloemfontein

For 2nd Respondent:
D Watson

Instructed by: Abba Parak Inc, Johannesburg

Webbers Attorneys, Bloemfontein