Malinga and Another v Bradwell and Another (1911/2016) [2018] ZANCHC 69 (21 September 2018)

Malinga and Another v Bradwell and Another (1911/2016) [2018] ZANCHC 69 (21 September 2018)

The court found that the plaintiffs' claim for transfer of property was subject to the three-year prescription period under the Prescription Act. The contract did not stipulate that payment and transfer were incidental, nor was there an implied term to that effect. The plaintiffs' obligation to pay was fixed, and their failure to pay the balance of the purchase price meant the debt became due and prescription commenced. The exceptions argued by the plaintiffs were rejected, as the reciprocal obligation and implied term were not supported by the contract or facts. The court held that the plaintiffs, as creditors, bore the burden of pursuing their claim and could not delay prescription...

Citation
[2018] ZANCHC 69
Parties
Plaintiff: Sipho Camndey Malinga; Plaintiff: Irene Kgomotso Malinga; Defendant: Elizabeth Haneley Bradwell; Defendant: Registrar of Deeds, Vryburg
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
21 September 2018
Case Number
1911/2016
Procedural Posture
Civil Trial / Judgment on Special Plea of Prescription
Outcome
Plaintiffs' claim dismissed; special plea of prescription upheld.
Judges
Vuma
Legal Topics
Extinctive Prescription, Specific Performance, Alienation of Land Act, Contractual Obligations
Land and Property Civil Procedure Extinctive Prescription Specific Performance Alienation of Land Act Contractual Obligations

Case Brief

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Parties

Sipho Camndey Malinga

Plaintiff

Irene Kgomotso Malinga

Plaintiff

Elizabeth Haneley Bradwell

Defendant

Registrar of Deeds, Vryburg

Defendant

Procedural Posture

Civil Trial / Judgment on Special Plea of Prescription

Legal Issues

  1. 1 Whether the plaintiffs' claim for specific performance of transfer of property has prescribed.
  2. 2 Whether the parties agreed or it was an implied term that payment and transfer would coincide.
  3. 3 Whether both parties have a reciprocal duty to demand payment.

Ratio Decidendi

The court found that the plaintiffs' claim for transfer of property was subject to the three-year prescription period under the Prescription Act. The contract did not stipulate that payment and transfer were incidental, nor was there an implied term to that effect. The plaintiffs' obligation to pay was fixed, and their failure to pay the balance of the purchase price meant the debt became due and prescription commenced. The exceptions argued by the plaintiffs were rejected, as the reciprocal obligation and implied term were not supported by the contract or facts. The court held that the plaintiffs, as creditors, bore the burden of pursuing their claim and could not delay prescription...

Court Disposition

Plaintiffs' claim dismissed; special plea of prescription upheld.

Orders

  • The Special Plea of Prescription is upheld with costs, including fair reasonable costs of travelling and disbursements, and subsistence, in respect of the first defendant's attorney and counsel from Pretoria to Kimberly, on a High Court scale.
  • The costs in respect of the urgent application are awarded to the first defendant on terms similar to Order no. 1.