Botha N.O. v Leboko-Radebe and Others (16835/2021) [2022] ZAGPJHC 724 (22 September 2022)

Botha N.O. v Leboko-Radebe and Others (16835/2021) [2022] ZAGPJHC 724 (22 September 2022)

The court found that the first respondent fraudulently misrepresented herself as the surviving spouse of the deceased, obtained letters of authority, and caused the property to be transferred into her name. This fraudulent conduct tainted both the transfer and the mortgage bond registration. Applying the principle that fraud unravels all, the court held that ownership of the property did not lawfully pass to the first respondent despite registration. Section 6(1) of the Deeds Registries Act empowers the court to cancel registered deeds obtained through fraud. The applicant, as executor, was entitled to vindicate the property and have the title deed and mortgage bond cancelled, with...

Citation
[2022] ZAGPJHC 724
Parties
Applicant: Cornelius Erasmus Botha N.O.; Respondent: Nthibi Dora Leboko-Radebe; Respondent: Absa Bank Limited; Respondent: Master of the High Court, Johannesburg; Respondent: Registrar of Deeds, Johannesburg
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
22 September 2022
Case Number
16835/2021
Procedural Posture
Urgent Application / Opposed Application for Cancellation of Title Deed and Mortgage Bond
Outcome
Application granted; title deed and mortgage bond cancelled; ownership of property reverts to the deceased estate; no order as to costs.
Judges
Adams
Legal Topics
Rei Vindicatio, Deeds Registries Act, Fraudulent Transfer, Cancellation of Title Deed, Mortgage Bond Cancellation
Land and Property Civil Procedure Rei Vindicatio Deeds Registries Act Fraudulent Transfer Cancellation of Title Deed Mortgage Bond Cancellation

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Parties

Cornelius Erasmus Botha N.O.

Applicant

Nthibi Dora Leboko-Radebe

Respondent

Absa Bank Limited

Respondent

Master of the High Court, Johannesburg

Respondent

Registrar of Deeds, Johannesburg

Respondent

Procedural Posture

Urgent Application / Opposed Application for Cancellation of Title Deed and Mortgage Bond

Legal Issues

  1. 1 Whether the transfer of the property into the name of the first respondent was valid and based on a lawful causa.
  2. 2 Whether the title deed and mortgage bond registered in favour of the second respondent should be cancelled due to fraud.
  3. 3 Whether ownership of the property should revert to the estate of the deceased.

Ratio Decidendi

The court found that the first respondent fraudulently misrepresented herself as the surviving spouse of the deceased, obtained letters of authority, and caused the property to be transferred into her name. This fraudulent conduct tainted both the transfer and the mortgage bond registration. Applying the principle that fraud unravels all, the court held that ownership of the property did not lawfully pass to the first respondent despite registration. Section 6(1) of the Deeds Registries Act empowers the court to cancel registered deeds obtained through fraud. The applicant, as executor, was entitled to vindicate the property and have the title deed and mortgage bond cancelled, with...

Court Disposition

Application granted; title deed and mortgage bond cancelled; ownership of property reverts to the deceased estate; no order as to costs.

Orders

  • Endorsement number [....] in terms of section 45(1) of the Deeds Registries Act of Deed of Transfer number [....] is cancelled in terms of section 6(1) of the Act.
  • The Registrar of Deeds shall forthwith cancel the aforementioned Endorsement number: [....].