Fegen and Another v Mphakathi (348/2012) [2013] ZASCA 100 (9 September 2013)

Fegen and Another v Mphakathi (348/2012) [2013] ZASCA 100 (9 September 2013)

The Supreme Court of Appeal held that the defence of prescription raised by the appellants must fail. The evidence established that the King had, through his conduct and express statements, acknowledged his liability to transfer the properties to the respondent upon payment of the purchase price, thereby interrupting prescription or renouncing its benefits. The respondent was not negligent or idle in pursuing his rights, having faced obstacles such as unlawful occupation and protracted litigation. The court found that the appellants, particularly Mr Fegen, subjectively foresaw the possibility of the respondent's prior rights but proceeded with the acquisition regardless, wilfully shutting...

Citation
[2013] ZASCA 100
Parties
Appellant: Shawn Mark Fegen; Appellant: Brenda Yvonne Florence Fegen; Respondent: Douglas Mphakathi
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
9 September 2013
Case Number
348/2012
Procedural Posture
Civil Appeal / Appeal From Eastern Cape High Court, Mthatha
Outcome
Appeal dismissed; High Court order confirmed.
Judges
Navsa, Tshiqi, Pillay, Van der Merwe, Swain
Legal Topics
Successive Sales, Prescription Act, Transfer of Immovable Property, Dolus Eventualis, Bona Fide Purchaser
Land and Property Civil Procedure Successive Sales Prescription Act Transfer of Immovable Property Dolus Eventualis Bona Fide Purchaser

Case Brief

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Parties

Shawn Mark Fegen

Appellant

Brenda Yvonne Florence Fegen

Appellant

Douglas Mphakathi

Respondent

Procedural Posture

Civil Appeal / Appeal From Eastern Cape High Court, Mthatha

Legal Issues

  1. 1 Whether the respondent's right to claim transfer of the properties from the seller had prescribed.
  2. 2 Whether the appellants took delivery of the properties with knowledge of the prior sale to the respondent.
  3. 3 Whether the second sale and transfer to the appellants were void due to mala fides.

Ratio Decidendi

The Supreme Court of Appeal held that the defence of prescription raised by the appellants must fail. The evidence established that the King had, through his conduct and express statements, acknowledged his liability to transfer the properties to the respondent upon payment of the purchase price, thereby interrupting prescription or renouncing its benefits. The respondent was not negligent or idle in pursuing his rights, having faced obstacles such as unlawful occupation and protracted litigation. The court found that the appellants, particularly Mr Fegen, subjectively foresaw the possibility of the respondent's prior rights but proceeded with the acquisition regardless, wilfully shutting...

Court Disposition

Appeal dismissed; High Court order confirmed.

Orders

  • The appeal is dismissed.
  • The appellants are ordered to pay the respondent’s costs of the appeal.