Keyes NO v Ellinas and Others (2013/62385) [2016] ZAGPPHC 1187 (27 October 2016)

Keyes NO v Ellinas and Others (2013/62385) [2016] ZAGPPHC 1187 (27 October 2016)

The court held that the plaintiff was validly appointed as executor under section 18(1)(a) of the Administration of Estates Act, as the Cypriot will was not accepted or registered in South Africa and the Master properly exercised discretion in appointing the plaintiff. The transfer of ownership of the property to Jango Ellinas was null and void because the power of attorney granted by Angela Ellinas to Chris Ellinas lapsed upon her death, and Angela ceased to be the owner of the property at the time of transfer. The purported transfer was thus legally ineffective. The appointment of the Cypriot executor did not terminate the prescription impediment under section 13(1)(h) of the...

Citation
[2016] ZAGPPHC 1187
Parties
Plaintiff: Trevor Thomas Keyes NO; Defendant: Chris Ellinas; Defendant: Jango Ellinas; Defendant: Registrar of Deeds, Johannesburg
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
27 October 2016
Case Number
2013/62385
Procedural Posture
Civil Trial / Separated Issues Hearing Under Rule 33(4); Judgment on Validity of Transfer and Prescription Special Pleas
Outcome
The plaintiff succeeded in the separated issues; the transfer of ownership to the second defendant was declared null and void, and the Registrar of Deeds was ordered to cancel the relevant deeds. The appointment of the Cypriot executor did not terminate the prescription impediment. Costs were awarded to the...
Judges
JR Peter
Legal Topics
Transfer of Immovable Property, Power of Attorney, Executor Appointment, Prescription Act Section 13, Deeds Registries Act, Collateral Challenge
Land and Property Civil Procedure Transfer of Immovable Property Power of Attorney Executor Appointment Prescription Act Section 13 Deeds Registries Act Collateral Challenge

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Parties

Trevor Thomas Keyes NO

Plaintiff

Chris Ellinas

Defendant

Jango Ellinas

Defendant

Registrar of Deeds, Johannesburg

Defendant

Procedural Posture

Civil Trial / Separated Issues Hearing Under Rule 33(4); Judgment on Validity of Transfer and Prescription Special Pleas

Legal Issues

  1. 1 Whether the plaintiff was validly appointed as executor of the deceased estate under South African law.
  2. 2 Whether ownership in the immovable property was validly transferred to the second defendant after the death of the owner.
  3. 3 Whether the appointment of an executor in Cyprus terminated the prescription impediment under section 13(1)(h) of the Prescription Act, 1969.

Ratio Decidendi

The court held that the plaintiff was validly appointed as executor under section 18(1)(a) of the Administration of Estates Act, as the Cypriot will was not accepted or registered in South Africa and the Master properly exercised discretion in appointing the plaintiff. The transfer of ownership of the property to Jango Ellinas was null and void because the power of attorney granted by Angela Ellinas to Chris Ellinas lapsed upon her death, and Angela ceased to be the owner of the property at the time of transfer. The purported transfer was thus legally ineffective. The appointment of the Cypriot executor did not terminate the prescription impediment under section 13(1)(h) of the...

Court Disposition

The plaintiff succeeded in the separated issues; the transfer of ownership to the second defendant was declared null and void, and the Registrar of Deeds was ordered to cancel the relevant deeds. The appointment of the Cypriot executor did not terminate the prescription impediment. Costs were awarded to the...

Orders

  • The Registrar of Deeds, Johannesburg is authorised and directed to cancel deed of transfer T000014436/2010 dated 11 May 2010.
  • The Registrar of Deeds, Johannesburg is authorised and directed to cancel the relevant endorsement on deed of transfer T45790/2007 evidencing registration of deed T000014436/2010.