Du Plessis v Prophitius and Another (204/08) [2009] ZASCA 79; 2010 (1) SA 49 (SCA); [2009] 4 All SA 302 (SCA) (3 June 2009)

Du Plessis v Prophitius and Another (204/08) [2009] ZASCA 79; 2010 (1) SA 49 (SCA); [2009] 4 All SA 302 (SCA) (3 June 2009)

The Supreme Court of Appeal held that the trust, as transferor, had the requisite intention to transfer ownership to the respondents, as evidenced by resolutions and signed documents authorising the transfer. The abstract theory of transfer applies to immovable property, requiring both registration and a real agreement with intention. Fraudulent motive does not negate the existence of genuine intention to transfer ownership. The registration of title in the respondents' names was valid, and the appellant's claim to ownership failed. The appeal was dismissed with costs, except for the costs of two counsel, which were disallowed due to lack of complexity.

Citation
[2009] ZASCA 79
Parties
Appellant: Andries Petrus du Plessis; Respondent: Richard Prophitius; Respondent: Anna Margaretha Prophitius
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
3 June 2009
Case Number
204/08
Procedural Posture
Civil Appeal / Appeal From High Court (durban)
Outcome
Appeal dismissed with costs, except for costs of two counsel, which are disallowed.
Judges
NAVSA, VAN HEERDEN, PONNAN, SNYDERS, KROON
Legal Topics
Transfer of Ownership, Registration of Title, Fraudulent Intent, Abstract Theory of Transfer
Land and Property Civil Procedure Transfer of Ownership Registration of Title Fraudulent Intent Abstract Theory of Transfer

Case Brief

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Parties

Andries Petrus du Plessis

Appellant

Richard Prophitius

Respondent

Anna Margaretha Prophitius

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court (durban)

Legal Issues

  1. 1 Who is the rightful owner of Erf 757, Palm Beach, following double registration of title.
  2. 2 Whether the transfer of ownership to the respondents was valid under South African law.
  3. 3 Whether fraudulent intent by the trust affected the validity of the transfer.

Ratio Decidendi

The Supreme Court of Appeal held that the trust, as transferor, had the requisite intention to transfer ownership to the respondents, as evidenced by resolutions and signed documents authorising the transfer. The abstract theory of transfer applies to immovable property, requiring both registration and a real agreement with intention. Fraudulent motive does not negate the existence of genuine intention to transfer ownership. The registration of title in the respondents' names was valid, and the appellant's claim to ownership failed. The appeal was dismissed with costs, except for the costs of two counsel, which were disallowed due to lack of complexity.

Court Disposition

Appeal dismissed with costs, except for costs of two counsel, which are disallowed.

Orders

  • The appeal is dismissed with costs.
  • Costs incurred by the respondents for the employment of two counsel are disallowed.