Du Plooy and Another v Du Plooy and Others (417/11) [2012] ZASCA 135; [2012] 4 All SA 239 (SCA) (27 September 2012)

Du Plooy and Another v Du Plooy and Others (417/11) [2012] ZASCA 135; [2012] 4 All SA 239 (SCA) (27 September 2012)

The court found that the properties were allocated to the Du Plooy family and that the first appellant was nominated to hold them on behalf of his siblings, not in his personal capacity. There was no evidence of an agreement establishing co-ownership in the legal sense, but the first appellant was not free to alienate the properties without the consent of his siblings. The second appellant was aware of the dispute regarding the first appellant's authority to sell prior to transfer and was not an innocent transferee. Accordingly, the interdict restraining alienation and the setting aside of the transfer were warranted, but the declarator of co-ownership and the order to endorse the title...

Citation
[2012] ZASCA 135
Parties
Appellant: Robert Mandlakayise Du Plooy; Appellant: Victor Nkosinathi Zikole; Respondent: Ntombi Christophora Du Plooy; Respondent: Mfanukhona Du Plooy; Respondent: Malezi Du Plooy; Respondent: Thulisile Du Plooy; Respondent: Delsie Du Plooy; Respondent: Tobhi Du Plooy; Respondent: Tandiwe Du Plooy; Respondent: Maria Du Plooy
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 September 2012
Case Number
417/11
Procedural Posture
Civil Appeal / Appeal From Kwa Zulu Natal High Court, Durban
Outcome
Appeal succeeds in part; interdict and setting aside of transfer confirmed, declarator of co-ownership and endorsement of title deeds set aside.
Judges
Mthiyane, Heher, Bosielo, Petse, Plasket
Legal Topics
Nominee Ownership, Family Property Dispute, Alienation of Land, Interdict, Setting Aside Transfer
Land and Property Civil Procedure Nominee Ownership Family Property Dispute Alienation of Land Interdict Setting Aside Transfer

Case Brief

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Parties

Robert Mandlakayise Du Plooy

Appellant

Victor Nkosinathi Zikole

Appellant

Ntombi Christophora Du Plooy

Respondent

Mfanukhona Du Plooy

Respondent

Malezi Du Plooy

Respondent

Thulisile Du Plooy

Respondent

Delsie Du Plooy

Respondent

Tobhi Du Plooy

Respondent

Tandiwe Du Plooy

Respondent

Maria Du Plooy

Respondent

Procedural Posture

Civil Appeal / Appeal From Kwa Zulu Natal High Court, Durban

Legal Issues

  1. 1 Whether the first appellant acquired ownership of the properties in his personal capacity or as nominee for his siblings.
  2. 2 Whether the second appellant had knowledge of the challenge to the first appellant's right to alienate the property prior to transfer.
  3. 3 Whether the respondents established co-ownership of the properties.

Ratio Decidendi

The court found that the properties were allocated to the Du Plooy family and that the first appellant was nominated to hold them on behalf of his siblings, not in his personal capacity. There was no evidence of an agreement establishing co-ownership in the legal sense, but the first appellant was not free to alienate the properties without the consent of his siblings. The second appellant was aware of the dispute regarding the first appellant's authority to sell prior to transfer and was not an innocent transferee. Accordingly, the interdict restraining alienation and the setting aside of the transfer were warranted, but the declarator of co-ownership and the order to endorse the title...

Court Disposition

Appeal succeeds in part; interdict and setting aside of transfer confirmed, declarator of co-ownership and endorsement of title deeds set aside.

Orders

  • Paragraphs 2 and 4 of the order of the court below are set aside.
  • The appellants are directed, jointly and severally, to pay the costs of the respondents.