Burger and Another v Poignant Progress BK and Others (2473/2009) [2010] ZAWCHC 643 (26 February 2010)

Burger and Another v Poignant Progress BK and Others (2473/2009) [2010] ZAWCHC 643 (26 February 2010)

The court found that the sale agreement was subject to suspensive conditions, specifically the obtaining of mortgage bond finance by 16 June 2006, which was not fulfilled. The Applicants made it clear through correspondence that they considered the agreement lapsed and did not intend to acquire ownership. The Respondent's evidence of a subsequent oral agreement was inadmissible hearsay, and no credible evidence supported the existence of such an agreement. Applying the abstract theory of transfer, the court held that the Applicants lacked the requisite intention to become owners, and thus the transfer and mortgage bond registration were invalid. The deed of sale, deed of transfer, and...

Citation
[2010] ZAWCHC 643
Parties
Applicant: Andre Burger; Applicant: Maria Elizabeth Burger; Respondent: Poignant Progress BK; Respondent: Registrateur van Aktes; Respondent: ABSA Bank BPK; Respondent: Nedbank BPK; Respondent: Oasis Regspersoon
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
26 February 2010
Case Number
2473/2009
Procedural Posture
Review Application / Judgment
Outcome
Application granted. The sale agreement, deed of transfer, and mortgage bond are declared null and void and cancelled. Costs awarded against the First Respondent.
Judges
S J Koen
Legal Topics
Sale of Immovable Property, Suspensive Conditions, Mortgage Bond Registration, Abstract Theory of Transfer
Land and Property Civil Procedure Sale of Immovable Property Suspensive Conditions Mortgage Bond Registration Abstract Theory of Transfer

Case Brief

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Parties

Andre Burger

Applicant

Maria Elizabeth Burger

Applicant

Poignant Progress BK

Respondent

Registrateur van Aktes

Respondent

ABSA Bank BPK

Respondent

Nedbank BPK

Respondent

Oasis Regspersoon

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the sale agreement for the unit is void due to non-fulfilment of suspensive conditions.
  2. 2 Whether the deed of transfer and mortgage bond registered over the property should be cancelled.
  3. 3 Whether the Applicants ever acquired ownership of the unit.

Ratio Decidendi

The court found that the sale agreement was subject to suspensive conditions, specifically the obtaining of mortgage bond finance by 16 June 2006, which was not fulfilled. The Applicants made it clear through correspondence that they considered the agreement lapsed and did not intend to acquire ownership. The Respondent's evidence of a subsequent oral agreement was inadmissible hearsay, and no credible evidence supported the existence of such an agreement. Applying the abstract theory of transfer, the court held that the Applicants lacked the requisite intention to become owners, and thus the transfer and mortgage bond registration were invalid. The deed of sale, deed of transfer, and...

Court Disposition

Application granted. The sale agreement, deed of transfer, and mortgage bond are declared null and void and cancelled. Costs awarded against the First Respondent.

Orders

  • The Deed of Sale concluded between the Applicants and the First Respondent on 6 June 2006 is declared to be null and void.
  • Deed of Transfer No. ST29697/2008 is hereby cancelled.