Mbele NO v Sombane (2355/2018) [2019] ZAMPMHC 22 (28 November 2019)

Mbele NO v Sombane (2355/2018) [2019] ZAMPMHC 22 (28 November 2019)

The court found that the deceased was the registered owner of the property and that no valid sale had occurred, as no written deed of sale existed and no consent was given by the applicant. The respondent admitted the applicant's capacity as executrix and conceded that she had no right to collect rental income or enter the property. The applicant failed to prove marriage in community of property due to lack of a certificate, but the respondent's opposition on this point was irrelevant to the relief sought. The requirements for a final interdict were met: the applicant had a clear right as executrix, injury to the estate was reasonably apprehended, and no alternative remedy was available....

Citation
[2019] ZAMPMHC 22
Parties
Applicant: Musa Maureen Mbele N.O.; Respondent: Dikiledi Sombane
Court
Middelburg High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
28 November 2019
Case Number
2355/2018
Procedural Posture
Urgent Application / Judgment
Outcome
Application granted. Declaratory and interdictory relief issued. Respondent ordered to pay costs.
Judges
Brauckmann
Legal Topics
Alienation of Land Act, Ownership Dispute, Interdict, Estate Administration
Land and Property Civil Procedure Alienation of Land Act Ownership Dispute Interdict Estate Administration

Case Brief

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Parties

Musa Maureen Mbele N.O.

Applicant

Dikiledi Sombane

Respondent

Procedural Posture

Urgent Application / Judgment

Legal Issues

  1. 1 Whether the deceased was the registered owner of the property at the time of death.
  2. 2 Whether any sale of the property prior to 12 May 2013 was valid without the applicant's written consent.
  3. 3 Whether the respondent is entitled to collect rental income from the property.

Ratio Decidendi

The court found that the deceased was the registered owner of the property and that no valid sale had occurred, as no written deed of sale existed and no consent was given by the applicant. The respondent admitted the applicant's capacity as executrix and conceded that she had no right to collect rental income or enter the property. The applicant failed to prove marriage in community of property due to lack of a certificate, but the respondent's opposition on this point was irrelevant to the relief sought. The requirements for a final interdict were met: the applicant had a clear right as executrix, injury to the estate was reasonably apprehended, and no alternative remedy was available....

Court Disposition

Application granted. Declaratory and interdictory relief issued. Respondent ordered to pay costs.

Orders

  • It is declared that the late Goodman Ndumiso Mbele is the registered owner of the property known as stand [...] Extension 2 Embalenhle Mpumalanga.
  • Any sale by the deceased prior to 12 May 2013 of the property without the written consent of Musa Maureen Mbele is declared invalid and void ab origine.