Calcutt (Born Hyde) and Others v Maclean and Others (871/09) [2010] ZAECPEHC 9 (23 March 2010)

Calcutt (Born Hyde) and Others v Maclean and Others (871/09) [2010] ZAECPEHC 9 (23 March 2010)

The court found that the first deed of donation was not cancelled but was novated by the second deed of donation, which substituted the KM Trust with the fourth and fifth respondents as donees. The correspondence between the parties did not exhibit an intention to terminate the rights acquired under the first deed of donation, but rather to facilitate transfer to the new donees. The KB Trust, through its attorneys, acquiesced in the revised diagram and intended to donate Erf 125 as registered, as evidenced by the execution of the second deed of donation and the power of attorney. The applicants' subjective ignorance of the boundary change did not negate the real agreement to transfer...

Citation
[2010] ZAECPEHC 9
Parties
Applicant: Anne Veronica Calcutt (born Hyde); Applicant: Shawn Halgreen NO; Applicant: Nico de Villiers NO; Respondent: Kim Christina Maclean; Respondent: The Registrar of Deeds, Cape Town; Respondent: The Surveyor-General, Cape Town; Respondent: Stephen Canter; Respondent: Tracey Canter; Respondent: Hemsley & Kotze; Respondent: Robert Martindale NO; Respondent: Dr Kotze NO
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
23 March 2010
Case Number
871/09
Procedural Posture
Civil Application / Judgment
Outcome
Application dismissed with costs.
Judges
Eksteen
Legal Topics
Deed of Donation, Subdivision of Land, Transfer of Ownership, Novation, Abstract Theory of Transfer, Registration of Transfer
Land and Property Civil Procedure Deed of Donation Subdivision of Land Transfer of Ownership Novation Abstract Theory of Transfer Registration of Transfer

Case Brief

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Parties

Anne Veronica Calcutt (born Hyde)

Applicant

Shawn Halgreen NO

Applicant

Nico de Villiers NO

Applicant

Kim Christina Maclean

Respondent

The Registrar of Deeds, Cape Town

Respondent

The Surveyor-General, Cape Town

Respondent

Stephen Canter

Respondent

Tracey Canter

Respondent

Hemsley & Kotze

Respondent

Robert Martindale NO

Respondent

Dr Kotze NO

Respondent

Procedural Posture

Civil Application / Judgment

Legal Issues

  1. 1 Whether the first deed of donation dated 19 July 2001 was cancelled by mutual agreement or novated by the second deed of donation.
  2. 2 Whether the second deed of donation dated 15 December 2004 is void ab initio due to lack of consensus regarding the boundaries of the donated property.
  3. 3 Whether the applicants are entitled to orders reversing the subdivision, consolidation, and transfer of Erf 125 Kini Bay.

Ratio Decidendi

The court found that the first deed of donation was not cancelled but was novated by the second deed of donation, which substituted the KM Trust with the fourth and fifth respondents as donees. The correspondence between the parties did not exhibit an intention to terminate the rights acquired under the first deed of donation, but rather to facilitate transfer to the new donees. The KB Trust, through its attorneys, acquiesced in the revised diagram and intended to donate Erf 125 as registered, as evidenced by the execution of the second deed of donation and the power of attorney. The applicants' subjective ignorance of the boundary change did not negate the real agreement to transfer...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.