Legator McKenna INC and Another v Shea and Others (143/08) [2008] ZASCA 144; 2010 (1) SA 35 (SCA) ; [2009] 2 All SA 45 (SCA) (27 November 2008)

Legator McKenna INC and Another v Shea and Others (143/08) [2008] ZASCA 144; 2010 (1) SA 35 (SCA) ; [2009] 2 All SA 45 (SCA) (27 November 2008)

The Supreme Court of Appeal held that the purported sale agreement between McKenna and the Erskines was not validly concluded, as McKenna's acceptance constituted a counter-offer subject to the Master's approval, which was not accepted in writing as required by the Alienation of Land Act. Even if there was an implied acceptance, the requirements of the Act were not met. The abstract theory of transfer applies to immovable property, and ownership passes upon registration if there is a valid real agreement. In this case, McKenna had received his letters of curatorship before entering into the real agreement for transfer, and thus was properly authorised. The mistaken belief regarding the...

Citation
[2008] ZASCA 144
Parties
Appellant: Legator McKenna Inc; Appellant: M H G McKenna; Respondent: Clare Veronica Shea; Respondent: Jamie Erskine; Respondent: The Master of the High Court (Natal Provincial Division); Respondent: The Registrar of Deeds (Pietermaritzburg); Respondent: ABSA Bank Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 November 2008
Case Number
143/08
Procedural Posture
Civil Appeal / Appeal From High Court Judgment
Outcome
Appeal upheld; High Court order set aside; respondent's claim dismissed.
Judges
Harms, Brand, Cloete, Ponnan, Leach
Legal Topics
Curatorship, Transfer of Immovable Property, Abstract Theory of Transfer, Alienation of Land Act, Rei Vindicatio, Unjust Enrichment
Land and Property Civil Procedure Curatorship Transfer of Immovable Property Abstract Theory of Transfer Alienation of Land Act Rei Vindicatio Unjust Enrichment

Case Brief

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Parties

Legator McKenna Inc

Appellant

M H G McKenna

Appellant

Clare Veronica Shea

Respondent

Jamie Erskine

Respondent

The Master of the High Court (Natal Provincial Division)

Respondent

The Registrar of Deeds (Pietermaritzburg)

Respondent

ABSA Bank Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment

Legal Issues

  1. 1 Whether the sale of estate property by a curator bonis prior to the issue of letters of curatorship is valid.
  2. 2 Whether subsequent transfer of property pursuant to such a sale is effective under South African law.
  3. 3 Whether an enrichment claim is available to the original owner in these circumstances.

Ratio Decidendi

The Supreme Court of Appeal held that the purported sale agreement between McKenna and the Erskines was not validly concluded, as McKenna's acceptance constituted a counter-offer subject to the Master's approval, which was not accepted in writing as required by the Alienation of Land Act. Even if there was an implied acceptance, the requirements of the Act were not met. The abstract theory of transfer applies to immovable property, and ownership passes upon registration if there is a valid real agreement. In this case, McKenna had received his letters of curatorship before entering into the real agreement for transfer, and thus was properly authorised. The mistaken belief regarding the...

Court Disposition

Appeal upheld; High Court order set aside; respondent's claim dismissed.

Orders

  • The appeal is upheld with costs, including the costs of two counsel where employed.
  • The order of the court a quo is set aside and substituted with: 'The plaintiff's claim 1 is dismissed with costs.'