B.N.M (Born M) v S.M and Others (2892/2022) [2024] ZAECMKHC 4 (10 January 2024)

B.N.M (Born M) v S.M and Others (2892/2022) [2024] ZAECMKHC 4 (10 January 2024)

The court found that the applicant's claim was prescribed under the Prescription Act, as the right of action arose upon the conclusion of the proprietary agreement in July 2014 and no valid interruption of prescription was established. The factual disputes regarding the nature and purpose of the agreement were resolved in favour of the respondent, as the applicant did not seek referral to oral evidence and pressed for a decision on the papers. The respondent's version, supported by positive evidence, established that the proprietary agreement was a valid novation of the divorce settlement, entitling him to transfer of the property without payment. The registrar of deeds acted in...

Citation
[2024] ZAECMKHC 4
Parties
Applicant: B.N.M (Born M); Respondent: S.M; Respondent: Squire Smith & Laurie Inc; Respondent: Registrar of Deeds, King Williams Town
Court
Eastern Cape High Court, Makhanda
Jurisdiction
South Africa
Judgment Date
10 January 2024
Case Number
2892/2022
Procedural Posture
Review Application / Opposed Motion; Final Judgment
Outcome
Application dismissed with costs; late filing of replying affidavit condoned.
Judges
Rugunanan
Legal Topics
Deeds Registries Act, Prescription Act, Fraudulent Misrepresentation, Divorce Settlement, Motion Proceedings
Land and Property Civil Procedure Deeds Registries Act Prescription Act Fraudulent Misrepresentation Divorce Settlement Motion Proceedings

Case Brief

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Parties

B.N.M (Born M)

Applicant

S.M

Respondent

Squire Smith & Laurie Inc

Respondent

Registrar of Deeds, King Williams Town

Respondent

Procedural Posture

Review Application / Opposed Motion; Final Judgment

Legal Issues

  1. 1 Whether the applicant's claim for cancellation of title deed endorsements is prescribed under the Prescription Act.
  2. 2 Whether the proprietary agreement was entered into in contravention of the divorce order and tainted by fraudulent misrepresentation.
  3. 3 Whether the application constitutes a review of administrative action under PAJA or a claim for cancellation under the Deeds Registries Act.

Ratio Decidendi

The court found that the applicant's claim was prescribed under the Prescription Act, as the right of action arose upon the conclusion of the proprietary agreement in July 2014 and no valid interruption of prescription was established. The factual disputes regarding the nature and purpose of the agreement were resolved in favour of the respondent, as the applicant did not seek referral to oral evidence and pressed for a decision on the papers. The respondent's version, supported by positive evidence, established that the proprietary agreement was a valid novation of the divorce settlement, entitling him to transfer of the property without payment. The registrar of deeds acted in...

Court Disposition

Application dismissed with costs; late filing of replying affidavit condoned.

Orders

  • The late filing of the applicant's replying affidavit is condoned.
  • The application is dismissed.