B.K v Z.K and Others (515/2017) [2018] ZAECGHC 16 (1 March 2018)

B.K v Z.K and Others (515/2017) [2018] ZAECGHC 16 (1 March 2018)

The court found that the third respondent had no authority to sell the property, rendering the deed of sale null and void. The subsequent regional court order purporting to ratify the sale was itself a nullity and could not revive the invalid contract. The abstract theory of transfer did not apply because there was no real agreement or intention by the true owners to transfer ownership. Section 28(2) of the Alienation of Land Act was inapplicable as the sale was not signed by the owners or their authorized agent. Consequently, the transfer to the second respondent was invalid, and ownership remained with the applicant and first respondent. The fifth respondent was entitled to repayment of...

Citation
[2018] ZAECGHC 16
Parties
Applicant: B K; Respondent: Z K; Respondent: Pensiler Trading CC; Respondent: Mzwabantu Cromwell Majola; Respondent: Enoch Mgijima Municipality; Respondent: Nedbank Ltd; Respondent: Registrar of Deeds, Cape Town
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
1 March 2018
Case Number
515/2017
Procedural Posture
Review Application / Judgment After Opposed Application and Conditional Counter Application
Outcome
Application to set aside the sale of immovable property is granted. The transfer to the second respondent is reversed. Judgment is granted in favour of the fifth respondent against the second respondent for repayment of the loan. Costs awarded against the first, second, third, and fifth respondents.
Judges
Malusi
Legal Topics
Alienation of Land Act, Authority of Receiver, Abstract Theory of Transfer, Ratification of Nullity, Mortgage Bond Liability, Costs Orders
Land and Property Civil Procedure Alienation of Land Act Authority of Receiver Abstract Theory of Transfer Ratification of Nullity Mortgage Bond Liability Costs Orders

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Parties

B K

Applicant

Z K

Respondent

Pensiler Trading CC

Respondent

Mzwabantu Cromwell Majola

Respondent

Enoch Mgijima Municipality

Respondent

Nedbank Ltd

Respondent

Registrar of Deeds, Cape Town

Respondent

Procedural Posture

Review Application / Judgment After Opposed Application and Conditional Counter Application

Legal Issues

  1. 1 Whether the sale of immovable property by the third respondent was valid in law.
  2. 2 Whether the regional court order could ratify a null and void deed of sale.
  3. 3 Whether transfer of ownership to the second respondent was valid under the abstract theory of transfer.

Ratio Decidendi

The court found that the third respondent had no authority to sell the property, rendering the deed of sale null and void. The subsequent regional court order purporting to ratify the sale was itself a nullity and could not revive the invalid contract. The abstract theory of transfer did not apply because there was no real agreement or intention by the true owners to transfer ownership. Section 28(2) of the Alienation of Land Act was inapplicable as the sale was not signed by the owners or their authorized agent. Consequently, the transfer to the second respondent was invalid, and ownership remained with the applicant and first respondent. The fifth respondent was entitled to repayment of...

Court Disposition

Application to set aside the sale of immovable property is granted. The transfer to the second respondent is reversed. Judgment is granted in favour of the fifth respondent against the second respondent for repayment of the loan. Costs awarded against the first, second, third, and fifth respondents.

Orders

  • The sale of ERF [...] Queenstown is set aside.
  • The Registrar of Deeds is ordered to cancel Deed of Transfer no T5763/2016 within four weeks of service of this order.