Absa v Moore [2015] ZASCA 171; 2016 (3) SA 97 (SCA) (26 November 2015)

Absa v Moore [2015] ZASCA 171; 2016 (3) SA 97 (SCA) (26 November 2015)

The Supreme Court of Appeal held that the Moores were induced by fraudulent misrepresentation to sign documents they believed were for a loan, not for the sale of their property. There was no genuine intention on their part to transfer ownership to Mr Kabini. As a result, the registration of transfer and the mortgage bond in favour of Absa Bank were of no legal effect. The Bank, although innocent, could not acquire a real right over property from a person who was not the owner. The court further found that the Moores were entitled to rescission of the default judgment against Mr Kabini, as they were affected parties and the judgment was granted in error. The order of the court a quo was...

Citation
[2015] ZASCA 171
Parties
Appellant: Absa Bank Limited; Respondent: Christina Martha Moore; Respondent: Jacques Moore
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 November 2015
Case Number
20719/2014
Procedural Posture
Civil Appeal / Appeal From Gauteng Local Division of the High Court, Johannesburg
Outcome
Appeal dismissed with costs of two counsel, save for the refinement of the order regarding ownership of the property.
Judges
Lewis, Ponnan, Pillay, Saldulker, Van der Merwe
Legal Topics
Fraudulent Misrepresentation, Transfer of Ownership, Mortgage Bond Validity, Simulated Transactions, Rescission of Judgment, Deeds Registries Act
Land and Property Civil Procedure Commercial and Corporate Fraudulent Misrepresentation Transfer of Ownership Mortgage Bond Validity Simulated Transactions Rescission of Judgment +1 more

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Parties

Absa Bank Limited

Appellant

Christina Martha Moore

Respondent

Jacques Moore

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Local Division of the High Court, Johannesburg

Legal Issues

  1. 1 Whether the transfer of immovable property induced by fraudulent misrepresentation is valid.
  2. 2 Whether a mortgage bond registered over property by a person who is not the owner is valid.
  3. 3 Whether the default judgment and order of executability against Mr Kabini should be rescinded.

Ratio Decidendi

The Supreme Court of Appeal held that the Moores were induced by fraudulent misrepresentation to sign documents they believed were for a loan, not for the sale of their property. There was no genuine intention on their part to transfer ownership to Mr Kabini. As a result, the registration of transfer and the mortgage bond in favour of Absa Bank were of no legal effect. The Bank, although innocent, could not acquire a real right over property from a person who was not the owner. The court further found that the Moores were entitled to rescission of the default judgment against Mr Kabini, as they were affected parties and the judgment was granted in error. The order of the court a quo was...

Court Disposition

Appeal dismissed with costs of two counsel, save for the refinement of the order regarding ownership of the property.

Orders

  • The appeal is dismissed with costs of two counsel, where so employed.
  • Paragraph 3 of the order of the court a quo is replaced with: 'The applicants are the owners of the property situate at Erf [1…..], [T….. R….. E……] Township IR Gauteng.'