Agnes and Another v Tobeka and Others (42040/2018) [2022] ZAGPJHC 814 (19 October 2022)

Agnes and Another v Tobeka and Others (42040/2018) [2022] ZAGPJHC 814 (19 October 2022)

The court found that the applicants were deprived of their residential property without judicial process, in violation of constitutional protections under Sections 25 and 26. The initial foreclosure and sale by BOE Bank in 2001 was conducted extra-judicially, without any evidence of court proceedings or oversight....

Source-derived case information.

Citation
[2022] ZAGPJHC 814
Parties
Applicant: Malinga Nomsa Agnes; Applicant: Njoko Joseph; Respondent: Mahamba Tobeka; Respondent: CUF Properties; Respondent: NBS Bank Ltd; Respondent: The Registrar of Deeds, Pretoria; Respondent: Nedbank Ltd obo BOE Bank Ltd; Respondent: Company Unique Finance (Pty) Ltd; Respondent: Meadow Star Investment 87 (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
19 October 2022
Case Number
42040/2018
Procedural Posture
Civil Application / Judgment Delivered After Hearing on 25 August 2022
Outcome
Application granted. All sales and transfers of the property declared null and void ab initio. Registrar of Deeds ordered to restore ownership to applicants. Each party to pay its own costs.
Judges
Thupaatlase
Legal Topics
Sale in Execution, Arbitrary Deprivation of Property, Judicial Oversight, Transfer of Immovable Property, Bona Fide Purchaser, Eviction Proceedings
Land and Property Constitutional Law Civil Procedure Sale in Execution Arbitrary Deprivation of Property Judicial Oversight Transfer of Immovable Property Bona Fide Purchaser +1 more

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Summary, issues, holding and outcome

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Parties

Malinga Nomsa Agnes

Applicant

Njoko Joseph

Applicant

Mahamba Tobeka

Respondent

CUF Properties

Respondent

NBS Bank Ltd

Respondent

The Registrar of Deeds, Pretoria

Respondent

Nedbank Ltd obo BOE Bank Ltd

Respondent

Company Unique Finance (Pty) Ltd

Respondent

Meadow Star Investment 87 (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Judgment Delivered After Hearing on 25 August 2022

Legal Issues

  1. 1 Whether the applicants were unlawfully deprived of their residential property without judicial process.
  2. 2 Whether the series of sales and transfers of the property were tainted with illegality and are void ab initio.
  3. 3 Whether the property can be vindicated from the current registered owner, a bona fide purchaser.

Ratio Decidendi

The court found that the applicants were deprived of their residential property without judicial process, in violation of constitutional protections under Sections 25 and 26. The initial foreclosure and sale by BOE Bank in 2001 was conducted extra-judicially, without any evidence of court proceedings or oversight. As a result, all subsequent sales and transfers of the property were tainted with illegality and declared void ab initio. The court held that even bona fide purchasers cannot acquire valid title where the original sale was a nullity. The Registrar of Deeds was ordered to cancel all affected deeds of transfer and restore ownership to the applicants. The applicants' delay in...

Court Disposition

Application granted. All sales and transfers of the property declared null and void ab initio. Registrar of Deeds ordered to restore ownership to applicants. Each party to pay its own costs.

Orders

  • The repossession of the property by BOE Bank in 2001 and its successor Nedbank is declared unlawful and invalid ab initio; Deed of Transfer T [....] is cancelled.
  • The sale and transfer of the property by Nedbank to Meadow Star Investment 87 (Pty) Ltd is declared null and void; Deed of Transfer T [....] is cancelled.