Armien and Others v Armien and Others (6943/2008) [2012] ZAWCHC 98 (25 January 2012)

Armien and Others v Armien and Others (6943/2008) [2012] ZAWCHC 98 (25 January 2012)

The court found that the plaintiffs' claim to undivided shares in the property is vindicatory in nature and not subject to extinctive prescription under the Prescription Act. The evidence established that the plaintiffs never intended to abandon their rights of ownership and did not consent to the transfer of the property into the first defendant's name. The purported signatures on the undertaking were not theirs, and the first defendant procured the transfer by fraudulent means. The defence of prescription and abandonment failed. The plaintiffs are entitled to transfer of their respective shares in the property and costs on an attorney and client scale.

Citation
[2012] ZAWCHC 98
Parties
Plaintiff: Abdullah Armien; Plaintiff: Ebrahima Armien; Plaintiff: Saaid Armien; Plaintiff: Gabeba Petersen; Plaintiff: Ridhwaan Armien; Plaintiff: Faldien Armien; Plaintiff: Najwa Armien; Plaintiff: Shamima Armien; Plaintiff: Sebastian Petersen; Plaintiff: Masat Smith N.O.; Defendant: Abubakar Armien; Defendant: Master of the High Court of South Africa (Cape of Good Hope Provincial Division); Defendant: ABSA Bank Limited; Defendant: Registrar of Deeds
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
25 January 2012
Case Number
6943/2008
Procedural Posture
Civil Trial / Final Judgment
Outcome
Plaintiffs succeed. Orders granted for transfer of undivided shares in the property to the plaintiffs and cancellation of the mortgage bond. Costs awarded against the first defendant on an attorney and client scale.
Judges
J I Cloete
Legal Topics
Intestate Succession, Rei Vindicatio, Fraudulent Transfer, Burden of Proof, Alienation of Land Act, Extinctive Prescription
Land and Property Civil Procedure Intestate Succession Rei Vindicatio Fraudulent Transfer Burden of Proof Alienation of Land Act Extinctive Prescription

Case Brief

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Parties

Abdullah Armien

Plaintiff

Ebrahima Armien

Plaintiff

Saaid Armien

Plaintiff

Gabeba Petersen

Plaintiff

Ridhwaan Armien

Plaintiff

Faldien Armien

Plaintiff

Najwa Armien

Plaintiff

Shamima Armien

Plaintiff

Sebastian Petersen

Plaintiff

Masat Smith N.O.

Plaintiff

Abubakar Armien

Defendant

Master of the High Court of South Africa (Cape of Good Hope Provincial Division)

Defendant

ABSA Bank Limited

Defendant

Registrar of Deeds

Defendant

Procedural Posture

Civil Trial / Final Judgment

Legal Issues

  1. 1 Whether the plaintiffs' claim to undivided shares in the property is subject to extinctive prescription under the Prescription Act.
  2. 2 Whether the transfer of the property to the first defendant was procured by fraud and without the plaintiffs' consent.
  3. 3 Whether the plaintiffs abandoned or waived their rights of ownership in the property.

Ratio Decidendi

The court found that the plaintiffs' claim to undivided shares in the property is vindicatory in nature and not subject to extinctive prescription under the Prescription Act. The evidence established that the plaintiffs never intended to abandon their rights of ownership and did not consent to the transfer of the property into the first defendant's name. The purported signatures on the undertaking were not theirs, and the first defendant procured the transfer by fraudulent means. The defence of prescription and abandonment failed. The plaintiffs are entitled to transfer of their respective shares in the property and costs on an attorney and client scale.

Court Disposition

Plaintiffs succeed. Orders granted for transfer of undivided shares in the property to the plaintiffs and cancellation of the mortgage bond. Costs awarded against the first defendant on an attorney and client scale.

Orders

  • The first defendant is directed to do all things necessary, including signing all documents, to effect transfer of an undivided 1/8th share of the property to each of the first to sixth plaintiffs within 90 calendar days.
  • The first defendant is directed to do all things necessary, including signing all documents, to effect transfer of an undivided 1/32th share of the property to each of the seventh to tenth plaintiffs within 90 calendar days.