Balduzzi v Rajah (17136/2007) [2014] ZAGPJHC 209 (4 April 2014)

Balduzzi v Rajah (17136/2007) [2014] ZAGPJHC 209 (4 April 2014)

The court held that the defendant's right to claim transfer of the immovable property under section 48(2) of the Abolition of Racially Based Land Measures Act is a personal right, not a real right. As such, it is subject to prescription under section 11(d) of the Prescription Act 68 of 1969, which prescribes after three years. The defendant failed to effect transfer within the period prescribed by section 48(3)-(10) of the Abolition Act and did not apply to court for an extension. The authorities of the Supreme Court of Appeal and Constitutional Court confirm that such claims are debts subject to prescription. The court declined to follow contrary decisions and upheld the plaintiff's...

Citation
[2014] ZAGPJHC 209
Parties
Plaintiff: Oreste Balduzzi; Defendant: Devi Rajah; Defendant: Stanley Brasg N.O.
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
4 April 2014
Case Number
17136/2007
Procedural Posture
Civil Trial / Judgment on Special Plea of Prescription
Outcome
Special plea of prescription upheld; defendant's claim for registration of transfer of the property into its name has prescribed.
Judges
Wepener
Legal Topics
Prescription Act, Transfer of Immovable Property, Abolition of Racially Based Land Measures Act, Personal Rights Vs Real Rights
Land and Property Civil Procedure Prescription Act Transfer of Immovable Property Abolition of Racially Based Land Measures Act Personal Rights Vs Real Rights

Case Brief

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Parties

Oreste Balduzzi

Plaintiff

Devi Rajah

Defendant

Stanley Brasg N.O.

Defendant

Procedural Posture

Civil Trial / Judgment on Special Plea of Prescription

Legal Issues

  1. 1 Whether the defendant's right to claim transfer of immovable property under section 48(2) of the Abolition of Racially Based Land Measures Act has prescribed.
  2. 2 Whether the right to claim transfer is a personal right subject to prescription under the Prescription Act 68 of 1969.
  3. 3 Whether the failure to effect transfer within the period prescribed by section 48(3)-(10) of the Abolition Act affects the defendant's entitlement.

Ratio Decidendi

The court held that the defendant's right to claim transfer of the immovable property under section 48(2) of the Abolition of Racially Based Land Measures Act is a personal right, not a real right. As such, it is subject to prescription under section 11(d) of the Prescription Act 68 of 1969, which prescribes after three years. The defendant failed to effect transfer within the period prescribed by section 48(3)-(10) of the Abolition Act and did not apply to court for an extension. The authorities of the Supreme Court of Appeal and Constitutional Court confirm that such claims are debts subject to prescription. The court declined to follow contrary decisions and upheld the plaintiff's...

Court Disposition

Special plea of prescription upheld; defendant's claim for registration of transfer of the property into its name has prescribed.

Orders

  • The defendant's claim for registration of transfer of the property into its name is dismissed as prescribed.
  • The plaintiff's special plea of prescription is upheld with costs.