Marishane and Others v Marishane and Others [2023] ZAGPPHC 284; 25793/2021 (8 May 2023)

Marishane and Others v Marishane and Others [2023] ZAGPPHC 284; 25793/2021 (8 May 2023)

The applicants failed to prove that they were the lawful heirs to the property or that fraud occurred in the transfer process. The property was never registered in the names of the applicants' parents, and the only evidence before the court was that it was transferred from the municipality to the deceased brother and the second respondent. The applicants did not provide any documentary proof of inheritance or fraud, relying instead on unsubstantiated allegations. The third respondent was found to be a bona fide purchaser for value without notice of any alleged fraud. The abstract theory of transfer applies, and the intention to transfer and acquire ownership was present between the...

Citation
[2023] ZAGPPHC 284
Parties
Applicant: Phae Piet Marishane; Applicant: Mameetse Sarah Marishane; Applicant: Mameswane Masemola; Respondent: Catherine Maite Marishane; Respondent: Leshaba Seboya Ephraim; Respondent: The Registrar of Deeds Pretoria; Respondent: The City of Tshwane Metropolitan Municipality; Respondent: The MEC of Human Settlements Gauteng Province
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
8 May 2023
Case Number
25793/2021
Procedural Posture
Review Application / Final Judgment
Outcome
Application dismissed with costs.
Judges
Van Heerden
Legal Topics
Declaratory Relief, Transfer of Immovable Property, Fraudulent Transfer, Bona Fide Purchaser, Abstract Theory of Transfer
Land and Property Civil Procedure Declaratory Relief Transfer of Immovable Property Fraudulent Transfer Bona Fide Purchaser Abstract Theory of Transfer

Case Brief

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Parties

Phae Piet Marishane

Applicant

Mameetse Sarah Marishane

Applicant

Mameswane Masemola

Applicant

Catherine Maite Marishane

Respondent

Leshaba Seboya Ephraim

Respondent

The Registrar of Deeds Pretoria

Respondent

The City of Tshwane Metropolitan Municipality

Respondent

The MEC of Human Settlements Gauteng Province

Respondent

Procedural Posture

Review Application / Final Judgment

Legal Issues

  1. 1 Whether the applicants are entitled to a declarator that the transfer of the subject property and all subsequent transfers are null and void.
  2. 2 Whether the applicants have proven that they are the lawful heirs to the property.
  3. 3 Whether the applicants have established fraud in the transfer of the property.

Ratio Decidendi

The applicants failed to prove that they were the lawful heirs to the property or that fraud occurred in the transfer process. The property was never registered in the names of the applicants' parents, and the only evidence before the court was that it was transferred from the municipality to the deceased brother and the second respondent. The applicants did not provide any documentary proof of inheritance or fraud, relying instead on unsubstantiated allegations. The third respondent was found to be a bona fide purchaser for value without notice of any alleged fraud. The abstract theory of transfer applies, and the intention to transfer and acquire ownership was present between the...

Court Disposition

Application dismissed with costs.

Orders

  • The application dated 17 May 2021 is dismissed with costs.