Hatting v Marule N.O and Others (1863/2022) [2024] ZAMPMHC 22 (8 March 2024)

Hatting v Marule N.O and Others (1863/2022) [2024] ZAMPMHC 22 (8 March 2024)

The court found that the respondents, as trustees, are properly cited and are estopped from denying the existence of the surety agreement. However, the applicant is not entitled to automatic transfer of the immovable property based solely on the surety agreement, as such a provision constitutes a pactum commissorium, which is void in South African law. The transfer of immovable property as security requires judicial intervention to determine fair value and consider any prejudice. The application, which sought to compel the respondents to sign transfer documents without such intervention, must therefore fail.

Citation
[2024] ZAMPMHC 22
Parties
Applicant: Dewald Johannes Hatting; Respondent: Tshidi Lenni Marule N.O; Respondent: Yvonne Madire Marule N.O; Respondent: Neo Lennin Marule N.O; Respondent: Victoria Reneiloe Marule N.O
Court
Middelburg High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
8 March 2024
Case Number
1863/2022
Procedural Posture
Civil Application / Judgment
Outcome
Application dismissed.
Judges
GUMEDE AJ
Legal Topics
Suretyship, Transfer of Immovable Property, Trust Litigation, Pactum Commissorium, Locus Standi, Joinder
Land and Property Civil Procedure Suretyship Transfer of Immovable Property Trust Litigation Pactum Commissorium Locus Standi Joinder

Case Brief

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Parties

Dewald Johannes Hatting

Applicant

Tshidi Lenni Marule N.O

Respondent

Yvonne Madire Marule N.O

Respondent

Neo Lennin Marule N.O

Respondent

Victoria Reneiloe Marule N.O

Respondent

Procedural Posture

Civil Application / Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to compel the respondents to sign documents and do all things necessary to effect transfer of the immovable property into his name.
  2. 2 Whether the trustees of the Marule Family Trust are properly cited and whether non-joinder of the Trust itself is fatal.
  3. 3 Whether the surety agreement is valid and enforceable, or void as a pactum commissorium.

Ratio Decidendi

The court found that the respondents, as trustees, are properly cited and are estopped from denying the existence of the surety agreement. However, the applicant is not entitled to automatic transfer of the immovable property based solely on the surety agreement, as such a provision constitutes a pactum commissorium, which is void in South African law. The transfer of immovable property as security requires judicial intervention to determine fair value and consider any prejudice. The application, which sought to compel the respondents to sign transfer documents without such intervention, must therefore fail.

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.
  • No order as to costs.