De Vos v Adams and Others (3133/2015) [2016] ZAWCHC 202 (6 December 2016)

De Vos v Adams and Others (3133/2015) [2016] ZAWCHC 202 (6 December 2016)

The court found that the applicant and her late husband were the rightful owners of the property, as the transfer to Adams was fraudulent and not effected with their consent. However, the applicant did not meet all the requirements for the rei vindicatio, particularly as she remained in possession of the property. The court held that prescription did not run until 2014, when the applicant became fully aware of the fraud, given her reasonable conduct and lack of legal sophistication. The sale in execution and subsequent transfers were set aside, the property was restored to the applicant and her late husband, and the mortgage bond was cancelled. The third respondent, Jacoba M du Plessis,...

Citation
[2016] ZAWCHC 202
Parties
Applicant: Veronica Lorraine De Vos; Respondent: Lindsay Graeme Adams; Respondent: ABSA Bank Limited; Respondent: Jacoba M du Plessis; Respondent: Andre Muller; Respondent: Registrar of Deeds, Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
6 December 2016
Case Number
3133/2015
Procedural Posture
Review Application / Final Judgment
Outcome
Application granted. Sale in execution and subsequent transfers set aside. Property restored to applicant and late husband. Mortgage bond cancelled. Third respondent ordered to pay costs.
Judges
Davis
Legal Topics
Rei Vindicatio, Prescription Act Section 12, Fraudulent Transfer of Property, Sale in Execution, Bona Fide Purchaser, Mortgage Bond Cancellation
Land and Property Civil Procedure Delict Rei Vindicatio Prescription Act Section 12 Fraudulent Transfer of Property Sale in Execution Bona Fide Purchaser +1 more

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Parties

Veronica Lorraine De Vos

Applicant

Lindsay Graeme Adams

Respondent

ABSA Bank Limited

Respondent

Jacoba M du Plessis

Respondent

Andre Muller

Respondent

Registrar of Deeds, Cape Town

Respondent

Procedural Posture

Review Application / Final Judgment

Legal Issues

  1. 1 Whether the sale in execution and subsequent transfers of the applicant's property were valid in light of alleged fraud.
  2. 2 Whether the applicant's claim is barred by prescription under section 12 of the Prescription Act.
  3. 3 Whether the applicant is entitled to have the property restored and the mortgage bond cancelled.

Ratio Decidendi

The court found that the applicant and her late husband were the rightful owners of the property, as the transfer to Adams was fraudulent and not effected with their consent. However, the applicant did not meet all the requirements for the rei vindicatio, particularly as she remained in possession of the property. The court held that prescription did not run until 2014, when the applicant became fully aware of the fraud, given her reasonable conduct and lack of legal sophistication. The sale in execution and subsequent transfers were set aside, the property was restored to the applicant and her late husband, and the mortgage bond was cancelled. The third respondent, Jacoba M du Plessis,...

Court Disposition

Application granted. Sale in execution and subsequent transfers set aside. Property restored to applicant and late husband. Mortgage bond cancelled. Third respondent ordered to pay costs.

Orders

  • The sale in execution of Erf 1704, Blue Downs, and all subsequent sales are set aside and declared null and void.
  • The applicant and the late Cecil Charles De Vos are declared the rightful owners of the property.