Banderker N.O and Others v Gangrakar N.O and Others (A359/06) [2008] ZAWCHC 10; 2008 (4) SA 269 (C) (22 February 2008)

Banderker N.O and Others v Gangrakar N.O and Others (A359/06) [2008] ZAWCHC 10; 2008 (4) SA 269 (C) (22 February 2008)

The court held that prescription did not run during periods when there was no executor in Jameela's estate, nor while Sulaiman or his successor in title was the executor, as they could not institute a claim against themselves. The impediment to instituting a claim constituted a suspension of prescription under the applicable Prescription Acts. The court followed the English authority Binns v Nichols, finding that the Prescription Act did not apply while the executor and claimant were the same person. Consequently, Sulaiman's rights to acquire Jameela's 25% undivided share in the properties did not prescribe. The appeal was dismissed with costs.

Citation
[2008] ZAWCHC 10
Parties
Appellant: Jubeida Khatun Banderker N.O; Appellant: Fatima Dhansay N.O; Appellant: Jubeida Khatun Banderker; Appellant: Fatima Dhansay; Appellant: Master of the High Court; Respondent: Mohammed Iqbal Gangrakar N.O; Respondent: Mohammed Iqbal Gangrakar; Respondent: Courtenay Daniel Ulyate N.O
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
22 February 2008
Case Number
A359/06
Procedural Posture
Civil Appeal / Appeal From the Decision of the Court a Quo
Outcome
Appeal dismissed with costs.
Judges
Zondi, NC Erasmus, Veldhuizen
Legal Topics
Prescription Act, Executor and Beneficiary Conflict, Group Areas Act, Liquidation and Distribution Account
Civil Procedure Land and Property Prescription Act Executor and Beneficiary Conflict Group Areas Act Liquidation and Distribution Account

Case Brief

Summary, issues, holding and outcome

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Parties

Jubeida Khatun Banderker N.O

Appellant

Fatima Dhansay N.O

Appellant

Jubeida Khatun Banderker

Appellant

Fatima Dhansay

Appellant

Master of the High Court

Appellant

Mohammed Iqbal Gangrakar N.O

Respondent

Mohammed Iqbal Gangrakar

Respondent

Courtenay Daniel Ulyate N.O

Respondent

Procedural Posture

Civil Appeal / Appeal From the Decision of the Court a Quo

Legal Issues

  1. 1 Whether extinctive prescription ran during periods when the claimant and executor of the estate were the same person.
  2. 2 Whether the claimant's right to claim transfer of the share in the properties had prescribed.
  3. 3 Whether the failure to apply for a permit under the Group Areas Act affected the right to claim transfer.

Ratio Decidendi

The court held that prescription did not run during periods when there was no executor in Jameela's estate, nor while Sulaiman or his successor in title was the executor, as they could not institute a claim against themselves. The impediment to instituting a claim constituted a suspension of prescription under the applicable Prescription Acts. The court followed the English authority Binns v Nichols, finding that the Prescription Act did not apply while the executor and claimant were the same person. Consequently, Sulaiman's rights to acquire Jameela's 25% undivided share in the properties did not prescribe. The appeal was dismissed with costs.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.