Macheka and Another v ABSA Bank Bpk and Others [2009] ZAFSHC 44 (6 March 2009)

Macheka and Another v ABSA Bank Bpk and Others [2009] ZAFSHC 44 (6 March 2009)

The court found that the applicants' claim for transfer of the property constitutes a 'debt' under the Prescription Act. Prescription commenced immediately after payment of the purchase price and transfer costs on 6 April 2004, as the applicants were deemed to have knowledge of the facts giving rise to the debt, particularly since the first applicant is an attorney and could have ascertained the status of transfer with reasonable care. The application was brought more than three years after the debt became due, and thus the claim had prescribed. The court condoned procedural non-compliance for Part B due to the close connection with Part A and absence of prejudice, but this did not affect...

Citation
[2009] ZAFSHC 44
Parties
Applicant: Fusi Stephen Macheka; Applicant: Sejabeng Emily Macheka; Respondent: ABSA Bank Beperk; Respondent: Die Balju van die Landdroshof, Welkom; Respondent: Die Registrateur van Aktes, Bloemfontein
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
6 March 2009
Case Number
6323/2008
Procedural Posture
Urgent Application / Application for Interim and Final Relief; Judgment on Prescription
Outcome
Application in terms of Part B dismissed with costs; each party to bear its own costs for Part A.
Judges
M B Molemela
Legal Topics
Prescription Act, Sale in Execution, Transfer of Property, Interim Relief, Condonation of Non Compliance
Land and Property Civil Procedure Prescription Act Sale in Execution Transfer of Property Interim Relief Condonation of Non Compliance

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Parties

Fusi Stephen Macheka

Applicant

Sejabeng Emily Macheka

Applicant

ABSA Bank Beperk

Respondent

Die Balju van die Landdroshof, Welkom

Respondent

Die Registrateur van Aktes, Bloemfontein

Respondent

Procedural Posture

Urgent Application / Application for Interim and Final Relief; Judgment on Prescription

Legal Issues

  1. 1 Whether the applicants' claim for transfer of property has prescribed under the Prescription Act.
  2. 2 Whether the applicants are entitled to interim relief preventing sale and transfer of the property pending finalisation of the application.
  3. 3 Whether non-compliance with the rules regarding ordinary applications should be condoned.

Ratio Decidendi

The court found that the applicants' claim for transfer of the property constitutes a 'debt' under the Prescription Act. Prescription commenced immediately after payment of the purchase price and transfer costs on 6 April 2004, as the applicants were deemed to have knowledge of the facts giving rise to the debt, particularly since the first applicant is an attorney and could have ascertained the status of transfer with reasonable care. The application was brought more than three years after the debt became due, and thus the claim had prescribed. The court condoned procedural non-compliance for Part B due to the close connection with Part A and absence of prejudice, but this did not affect...

Court Disposition

Application in terms of Part B dismissed with costs; each party to bear its own costs for Part A.

Orders

  • Each party is to bear its own costs in respect of the application brought in terms of Part A of the Notice of Motion.
  • The application brought in terms of Part B of the Notice of Motion is dismissed with costs.