WHEN THE UNIT YOU BOUGHT IS DEPICTED
ELSEWHERE ON THE SURVEYOR GENERAL MAP
Bonthuys and Another v Potgieter and Others (16760/2014) [2014]
ZAGPPHC 170 (3 April 2014)
This matter illustrates an unfortunate conundrum that arose after the Surveyor General’s
office, on its plans, erroneously changed numbering as it appeared on the plans of the
developer of a sectional title scheme. This resulted in the rights of the purchaser of unit X
(as depicted on the surveyor’s diagram) clashing with those of the purchaser of apparently
the same unit (according to the numbering on the developer’s plans). The court
approached the dispute practically to afford relief. The issue highlights the underlying
relationship between developers’ plans and those of the Surveyor General’s office and the
need to always verify the property recordal in the latter’s office.
The Judgment can be viewed here.
FACTS
In October 2012, Mr and Mrs Bonthuys bought unit 1 in the sectional title scheme Abacus.
After registration of transfer, they discovered that the unit was occupied by two tenants in
terms of an agreement with one Ms Hall. Mr and Mrs Bonthuys accordingly sought the
eviction of the tenants.
Hall opposed the application. She stated that, in 2006, she purchased unit 5 in the Abacus
sectional title scheme. The deed of sale described the unit as unit 5 and in addition its
location was identified on the developer’s plan as unit 5. There was consensus between
the developer and herself both with regard to the description of the unit, as well as its
physical location.
It became apparent some time later (and before the sale and transfer to Mr and Mrs
Bonthuys) that when the Surveyor General (‘the SG’) prepared the sectional title plan, the
numbering of the various units was unilaterally and erroneously changed with the result
that the physical location of the various units as depicted on the SG‘s plan differed from
those on the developer’s plan. It was not disputed that the developer’s plan served as the
basis for the identification of the unit sold to Hall and to the majority of the purchasers of
units who purchased at the time.
1 // 4
The effect of the change to the SG’s plan was that while Hall bought and obtained transfer
of the unit described as unit 5 on the developer’s plan and the sale agreement, she was in
occupation of and exercised the rights of ownership in respect of unit 1, as described on
the SG plan. In turn, the unit in the complex which was numbered ‘1’ on its door and on
the developer’s plan, was in fact the unit depicted as unit 6 on the SG plan. The error
duplicated itself with regard to all the other owners in the scheme.
When the problem was discovered a while later, the developer and the attorney involved
undertook to remedy the situation by way of a correcting deed. At the time of the sale to
Mr and Mrs Bonthuys this was not yet done and they were not advised hereof.
Hall accordingly conceded that Mr and Mrs Bonthuys are the registered owners of the unit
described as unit 1 Abacus, but that that unit was not the unit she owned, even though the
SG plan depicts it as such. Her stance was that her rights of ownership in the unit she
purchased by way of description and location cannot change, be diluted or rendered
irrelevant simply on account of an error made on the sectional title plan by the SG. In
addition to her opposition on the merits, Hall also raised various points in limine. Of
relevance was the contention that the other owners of units in the scheme had to be
joined as the relief sought by Mr and Mrs Bonthuys would have a direct and substantial
impact on their rights and interests.
Mr and Mrs Bonthuys on the other hand contended that the history of what transpired at
Abacus was not relevant to their ownership and that they are the registered owners of unit
1 as described on the SG diagram and accordingly that they were entitled to the relief
sought.
HELD:
The issue of non-joinder
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
It is trite that a third party who has a direct and substantial interest in any order the
court may make in proceedings, or if an order cannot be carried out without
prejudicing that party, is a necessary party and should be joined in the proceedings.

The unique circumstances that formed the factual basis of the dispute between the
parties in the present matter, was not confined to the parties themselves, even
though in a narrow sense the relief sought was essentially relief against Hall and not
any other owners of units in Abacus.

The relief sought related to an error in the SG plan and has relevance for all of the
owners of units in Abacus, in that their rights as owners will be directly impacted
upon by any order the court would make.
The failure to join therefore rendered the point in limine valid and the relief sought
impermissible. The action accordingly failed on this ground.
Merits

If the above conclusion was incorrect, the matter also failed on the merits.
The competing rights of Mr and Mrs Bonthuys and Hall to the property

The history and the manner of acquisition of the property was relevant here. Mr and
Mrs Bonthuys alleged that they bought unit 1 after it was pointed out to them by an
agent. They never inspected the inside of the property but inspected other units
which would have been similar in size and layout to the unit they intended to
purchase. (It was not clear however which unit was pointed out to them.) The unit in
the Abacus complex which is numbered ‘1’ on its door is in fact the unit depicted as
unit 6 on the SG’s plan. As such, whichever unit was pointed out to Mr and Mrs
Bonthuys would not have been Hall’s unit, i.e. the unit numbered 5. If Mr and Mrs
Bonthuys were pointed out the location of unit 1 (as indicated in the SG plan), that
would correspond with unit 6 of the physical building. On the other hand, the deed of
sale in terms of which Mr and Mrs Bonthuys signed, had the sectional title plan as
an attachment depicting unit 1 as the property occupied by Hill.

It was significant that unit 1 (as depicted on the SG diagram, physically numbered
‘6’) has been transferred on 3 previous occasions without the sectional title plan
being rectified. The transfer never interfered with Hall’s ownership rights of
ownership or occupation of the unit numbered 5. This signified that, even though the
unit described as unit 1 was being transferred on those various occasions, the
physical location of that unit was not unit 1 as depicted on the SG’s plan but some
other unit. It simply could not have been unit 1 as located on the SG’s plan because
if it was, then it is highly improbable that any of those purchasers would not have
sought at least some form of physical control over the unit which would then have
brought them into conflict with Hall who was exercising rights of ownership during
this period. The fact that no such conflict or contestation arose must strongly
suggest that while unit 1 may have changed hands as unit 1 described in the title
deed and the SG’s plans, in reality what physically changed hands must have been
another unit, likely unit 6 (which was unit 1 on the developer’s plan).

The consequences of Mr and Mrs Bonthuys being the registered owners of unit 1
with its location as depicted on the sectional title plan does not mean that Hill was
not vested with real ownership of the unit. This was because:
2 // 3
o
3 // 4
Hall and the developer both confirmed that what was sold by the
developer and purchased by the Hill was unit 5 in Abacus which was
described by both description and location in the deed of sale.
3 // 4
4
o
In this regard it warrants mention that the deed of transfer and accompanying
documents merely give effect to the deed of sale which continues to
constitute the primary and only source with regard to the terms and conditions
of the agreement. In addition we have, in South Africa, a negative system of
registration.
o
The agreement of sale to Hall did include clauses providing that the sectional
title plan has not yet been approved and that the exact boundaries and
property description on the sectional plan may differ from the description in
the agreement and that the purchaser will not refuse transfer as a result. The
seller warranted that the boundaries would be substantially in accordance
with the plan annexed to the sale agreement. These clauses provided for a
changed description and possibly changed boundaries, but in the context of
the sale and the seller’s warranty, they did not lay a basis for the submission
that Hall was obliged to accept transfer of a property different in substance
from the one she purchased based on a description and location of the
property purchased.

Accordingly, and in the absence of public policy considerations, what the parties
have agreed on must be given effect to.

As such, notwithstanding the error in the SG’s sectional title plan, Hall was and
continued to be the registered owner of unit 5 Abacus, albeit that such unit was
depicted as unit 1 on the SG plan. In light of the history of the development and
what was purchased, acquired and regarded as their property by the respective
owners, it could not be suggested that Hill was the owner of unit 5 as it is located on
the SG’s plan. The contention would undermine the rights and interests of all the
owners that bought in the 2006-2007 period as well as run contrary to the principles
of contract.
In the circumstances, the relief sought by Mr and Mrs Bonthuys cannot be granted. It
would ignore and undermine the principles of ownership which have, over time, developed
in our law. Notwithstanding the error in location on the Surveyor General’s plan, the
uncontroverted evidence in these proceedings compellingly demonstrates that Hall was
the owner of unit 5 Abacus which unit is located in the area erroneously depicted as unit 1
(as opposed to unit 5) on the sectional title plan. The application was therefore also
dismissed on its merits.
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