| 1. |
This section applies to applications based on the
principle that the consent of the holder of a right to the cancellation
or amendment of the conditions embodying his right is to be inferred
from the fact that he does not object to the application, as is discussed
in, inter alia, Ex parte Gold 1956 (2) SA 642 (T) and Ex parte Glenrand
(Pty) Ltd 1983 (3) SA 203 (W). |
| 2. |
If follows that the court should be convinced that
the holder of the right in question has knowledge of the application.
There should accordingly be service on all persons concerned. Service
under Rule 4(2) of the Rules of Court is authorised by way of exception
to the ordinary methods of service. Full and cogent reasons should therefore
be advanced in support of a request under the sub-rule. |
| 3. |
The fact – if fact it is – that it might
be difficult or costly to ascertain particulars of the persons concerned,
and to effect service on them, is not the most important consideration.
The nature and extent of the curtailment of the rights of affected persons
and the need to ensure that they are made aware of the application, is
of greater importance. It follows that the court might distinguish between
persons directly or indirectly affected by such applications, and differentiated
service might be authorised. |
| 4. |
When the application is presented to court |
| |
4.1 |
it must be proved that the application together with a request
to report was in good time served upon the Registrar of Deeds, any Township
Board which is involved and, if possible, a local authority which is
able to comment upon -
|
| |
|
4.1.1 |
the correctness of the facts; |
| |
|
4.1.2 |
the identity of persons who may have a legal interest or whose refusal
of consent could be adequate reason to refuse the application; and |
| |
|
4.1.3 |
about the best method of notifying interested parties. |
| |
4.2 |
a plan or map must be attached (if necessary extending beyond
the township within which the property is situated) which will assist
the
court to ascertain which owners or users (of roads or of rights) have
sufficient interest to make notice appropriate; |
| |
4.3 |
proof must be given of the problems encountered or expected which render
normal service on interested parties or direct notice on them (perhaps
in terms of Court rule 4(2)) impractical; |
| |
4.4 |
The effect of granting the order must be explained since persons
affected may by their mere objection put an end to the application,
the order should be so worded as to inform affected persons that they
are free to make their objection, either by written notice to the Registrar
or on the return day, without fear that they will be mulcted in costs. |
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