Kobi v Maclear and Another (2378/2006) [2007] ZAECHC 11 (8 March 2007)

Kobi v Maclear and Another (2378/2006) [2007] ZAECHC 11 (8 March 2007)

The court found that, on the evidence, a written deed of sale was indeed concluded between the applicant and the first respondent, as confirmed by affidavits and conduct of the parties. The applicant paid the purchase price and was given occupation and control of the property, including the right to lease it. The respondent's technical defences were rejected, and the court exercised its discretion to accept evidence in the replying affidavit confirming the existence of a signed deed of sale. Regarding prescription, the court held that the obligation to procure registration of transfer is a debt, but prescription was interrupted by the first respondent's conduct, including allowing...

Citation
[2007] ZAECHC 11
Parties
Applicant: James Kobi; Respondent: Macfoam Maclear (Pty) Ltd; Respondent: Maria Petronella Schmidt
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
8 March 2007
Case Number
2378/2006
Procedural Posture
Civil Action / Judgment After Application for Final Relief
Outcome
Application granted. The first respondent is ordered to take all necessary steps to procure registration of the property in the applicant's name. Costs awarded to the applicant.
Judges
P C Van der Byl
Legal Topics
Alienation of Land Act, Transfer of Property, Prescription Act, Registration of Transfer
Land and Property Civil Procedure Alienation of Land Act Transfer of Property Prescription Act Registration of Transfer

Case Brief

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Parties

James Kobi

Applicant

Macfoam Maclear (Pty) Ltd

Respondent

Maria Petronella Schmidt

Respondent

Procedural Posture

Civil Action / Judgment After Application for Final Relief

Legal Issues

  1. 1 Whether a valid written agreement of sale for the property was concluded between the applicant and the first respondent.
  2. 2 Whether the applicant's claim for transfer of the property is prescribed under the Prescription Act, 1969.
  3. 3 Whether the applicant is entitled to an order compelling the first respondent to procure registration of transfer of the property.

Ratio Decidendi

The court found that, on the evidence, a written deed of sale was indeed concluded between the applicant and the first respondent, as confirmed by affidavits and conduct of the parties. The applicant paid the purchase price and was given occupation and control of the property, including the right to lease it. The respondent's technical defences were rejected, and the court exercised its discretion to accept evidence in the replying affidavit confirming the existence of a signed deed of sale. Regarding prescription, the court held that the obligation to procure registration of transfer is a debt, but prescription was interrupted by the first respondent's conduct, including allowing...

Court Disposition

Application granted. The first respondent is ordered to take all necessary steps to procure registration of the property in the applicant's name. Costs awarded to the applicant.

Orders

  • The First Respondent is ordered to take all such steps as may be necessary to procure registration of Erf 923, Moolman Street, Maclear, in the name of the Applicant.
  • If documents necessary for registration are unavailable or any party fails or is unable to cooperate, leave is granted to any party to approach the Court on the same papers, supplemented with a report of the Registrar of Deeds and other relevant papers, for further directions.