Melelwe v Songca and Others (03566/19) [2024] ZAGPJHC 42 (19 January 2024)

Melelwe v Songca and Others (03566/19) [2024] ZAGPJHC 42 (19 January 2024)

The court found that the executrix of the estate was not legally competent to enter into the second deed of sale with the Songcas, as the property was already subject to a valid and unimpugned deed of sale in favour of the applicant. The real agreement underlying the second sale was thus incompetent, and the executrix could not transfer ownership to the Songcas. The applicant was entitled to have the second deed of sale and the subsequent transfer set aside. However, the applicant is not automatically entitled to transfer of the property into his name until all outstanding municipal rates and taxes are settled. The applicant is granted leave to approach the court for transfer once these...

Citation
[2024] ZAGPJHC 42
Parties
Applicant: Magage William Melelwe; Respondent: Sabelo Enoch Songca; Respondent: Lebogang Olinda Songca; Respondent: Banyana Caroline Mokela N.O.; Respondent: Registrar of Deeds, Johannesburg; Respondent: Master of the High Court, Johannesburg; Respondent: SB Guarantee Company (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
19 January 2024
Case Number
03566/19
Procedural Posture
Review Application / Judgment
Outcome
Application granted in part; second deed of sale and transfer set aside; applicant granted leave to seek transfer upon settlement of rates and taxes; costs awarded against sixth respondent.
Judges
Salmon AJ
Legal Topics
Alienation of Land Act, Transfer of Immovable Property, Administration of Estates Act, Real Agreement, Mortgage Bond, Setting Aside Sale
Land and Property Civil Procedure Alienation of Land Act Transfer of Immovable Property Administration of Estates Act Real Agreement Mortgage Bond Setting Aside Sale

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 9 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Magage William Melelwe

Applicant

Sabelo Enoch Songca

Respondent

Lebogang Olinda Songca

Respondent

Banyana Caroline Mokela N.O.

Respondent

Registrar of Deeds, Johannesburg

Respondent

Master of the High Court, Johannesburg

Respondent

SB Guarantee Company (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the second deed of sale between the estate executrix and the Songcas was valid given the prior sale to the applicant.
  2. 2 Whether the executrix was legally competent to transfer ownership of the property to the Songcas.
  3. 3 Whether the applicant is entitled to have the second deed of sale and subsequent transfer set aside.

Ratio Decidendi

The court found that the executrix of the estate was not legally competent to enter into the second deed of sale with the Songcas, as the property was already subject to a valid and unimpugned deed of sale in favour of the applicant. The real agreement underlying the second sale was thus incompetent, and the executrix could not transfer ownership to the Songcas. The applicant was entitled to have the second deed of sale and the subsequent transfer set aside. However, the applicant is not automatically entitled to transfer of the property into his name until all outstanding municipal rates and taxes are settled. The applicant is granted leave to approach the court for transfer once these...

Court Disposition

Application granted in part; second deed of sale and transfer set aside; applicant granted leave to seek transfer upon settlement of rates and taxes; costs awarded against sixth respondent.

Orders

  • The agreement of sale between the First and Second Respondents and the Third Respondent in respect of ERF 1[…] Kagiso Extension 12 is set aside.
  • The Registrar of Deeds, Johannesburg, is directed to cancel the Deed of Transfer number T44[…] and rectify the Deeds Register to reflect the estate as registered owner.