Bester NO and Others v Schmidt Bou Ontwikkelings CC (696/11) [2012] ZASCA 125; 2013 (1) SA 125 (SCA) (21 September 2012)

Bester NO and Others v Schmidt Bou Ontwikkelings CC (696/11) [2012] ZASCA 125; 2013 (1) SA 125 (SCA) (21 September 2012)

The Supreme Court of Appeal held that the claim for rectification of the deed of transfer is not a 'debt' as contemplated by the Prescription Act and is therefore not subject to prescription. The erroneous registration of the Remainder in Innova's name did not transfer ownership, as there was no real agreement to transfer that portion. Schmidt Bou Ontwikkelings CC remained the owner of the Remainder, and rectification of the deed of transfer is warranted to reflect the true ownership. The relief sought does not create new rights or obligations but merely corrects the register. Absa Bank Limited's defence of estoppel failed because it did not establish that it relied on the...

Citation
[2012] ZASCA 125
Parties
Appellant: L Von W Bester NO; Appellant: E M Dorfling NO; Appellant: P Q Naidoo NO; Appellant: C P Van Zyl NO; Appellant: ABSA Bank Limited; Respondent: Schmidt Bou Ontwikkelings CC
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
21 September 2012
Case Number
696/11
Procedural Posture
Civil Appeal / Appeal From Western Cape High Court, Cape Town
Outcome
Both appeals are dismissed. The first to fourth appellants, in their capacities as liquidators, and the fifth appellant are ordered, jointly and severally, to pay the respondent’s costs of appeal.
Judges
Brand, Snyders, Leach, Theron, Wallis
Legal Topics
Rectification of Deeds, Prescription Act, Ownership Transfer, Estoppel, Mortgage Bond Cancellation
Land and Property Civil Procedure Rectification of Deeds Prescription Act Ownership Transfer Estoppel Mortgage Bond Cancellation

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 22 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

L Von W Bester NO

Appellant

E M Dorfling NO

Appellant

P Q Naidoo NO

Appellant

C P Van Zyl NO

Appellant

ABSA Bank Limited

Appellant

Schmidt Bou Ontwikkelings CC

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape High Court, Cape Town

Legal Issues

  1. 1 Whether the claim for rectification of the deed of transfer constitutes a 'debt' under the Prescription Act and is thus subject to prescription.
  2. 2 Whether Schmidt Bou Ontwikkelings CC remains the owner of the Remainder despite erroneous registration in Innova's name.
  3. 3 Whether Absa Bank Limited can rely on estoppel to resist cancellation of the mortgage bond over the Remainder.

Ratio Decidendi

The Supreme Court of Appeal held that the claim for rectification of the deed of transfer is not a 'debt' as contemplated by the Prescription Act and is therefore not subject to prescription. The erroneous registration of the Remainder in Innova's name did not transfer ownership, as there was no real agreement to transfer that portion. Schmidt Bou Ontwikkelings CC remained the owner of the Remainder, and rectification of the deed of transfer is warranted to reflect the true ownership. The relief sought does not create new rights or obligations but merely corrects the register. Absa Bank Limited's defence of estoppel failed because it did not establish that it relied on the...

Court Disposition

Both appeals are dismissed. The first to fourth appellants, in their capacities as liquidators, and the fifth appellant are ordered, jointly and severally, to pay the respondent’s costs of appeal.

Orders

  • Both appeals are dismissed.
  • The first, second, third and fourth appellants, in their capacities as liquidators, and the fifth appellant are ordered, jointly and severally, to pay the respondent’s costs of appeal.