Bester and Others v Schmidt Bou Ontwikkelings (1689/2010) [2011] ZAWCHC 475 (21 September 2011)

Bester and Others v Schmidt Bou Ontwikkelings (1689/2010) [2011] ZAWCHC 475 (21 September 2011)

The court held that the claims for declaratory relief and rectification of the Deed of Transfer and Deeds Registry records do not relate to a debt as contemplated by the Prescription Act of 1969, and therefore extinctive prescription is not a valid defence to these claims. Regarding Absa Bank's application, the court found that the applicant's conduct did not legally cause Absa Bank to act to its detriment, and thus the requirements for estoppel were not met. However, the court acknowledged that these are important questions of law and that there is a reasonable prospect that another court may reach a different conclusion. Consequently, leave to appeal was granted to both the liquidators...

Citation
[2011] ZAWCHC 475
Parties
Applicant: L Von W Bester NO; Applicant: E M Dorfling NO; Applicant: P Q Naidoo NO; Applicant: C P Van Zyl NO; Applicant: ABSA Bank Limited; Applicant: Registrar of Deeds, Western Cape; Respondent: Schmidt Bou Ontwikkelings
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
21 September 2011
Case Number
1689/2010
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment and Orders Delivered on 17 August 2011.
Outcome
Leave to appeal granted to the Supreme Court of Appeal on the grounds set out in the respective applications for leave to appeal. Costs of the application will be costs in the appeal.
Judges
Louw
Legal Topics
Prescription Act 1969, Extinctive Prescription, Rectification of Deeds, Estoppel, Declaratory Relief
Civil Procedure Land and Property Prescription Act 1969 Extinctive Prescription Rectification of Deeds Estoppel Declaratory Relief

Case Brief

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Parties

L Von W Bester NO

Applicant

E M Dorfling NO

Applicant

P Q Naidoo NO

Applicant

C P Van Zyl NO

Applicant

ABSA Bank Limited

Applicant

Registrar of Deeds, Western Cape

Applicant

Schmidt Bou Ontwikkelings

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Judgment and Orders Delivered on 17 August 2011.

Legal Issues

  1. 1 Whether the applicant's claim for a declarator and rectification of the Deed of Transfer and Deeds Registry records constitutes a debt under the Prescription Act of 1969.
  2. 2 Whether extinctive prescription is a valid defence to the claims for declaratory relief and rectification.
  3. 3 Whether Absa Bank established estoppel preventing the applicant from denying valid transfer and registration of the property.

Ratio Decidendi

The court held that the claims for declaratory relief and rectification of the Deed of Transfer and Deeds Registry records do not relate to a debt as contemplated by the Prescription Act of 1969, and therefore extinctive prescription is not a valid defence to these claims. Regarding Absa Bank's application, the court found that the applicant's conduct did not legally cause Absa Bank to act to its detriment, and thus the requirements for estoppel were not met. However, the court acknowledged that these are important questions of law and that there is a reasonable prospect that another court may reach a different conclusion. Consequently, leave to appeal was granted to both the liquidators...

Court Disposition

Leave to appeal granted to the Supreme Court of Appeal on the grounds set out in the respective applications for leave to appeal. Costs of the application will be costs in the appeal.

Orders

  • Leave is granted to the applicants to appeal to the Supreme Court of Appeal on the bases set out in their respective applications for leave to appeal.
  • Costs of the application will be costs in the appeal.