Mkhize and Another v Mabija NO (782/1998) [2011] ZAKZDHC 42 (5 May 2011)

Mkhize and Another v Mabija NO (782/1998) [2011] ZAKZDHC 42 (5 May 2011)

The court found that the marriage between the Defendant and Sangqwane, contracted in 1975, was governed by the Black Administration Act and did not result in community of property, as no declaration to that effect was made. The decree of divorce did not order a transfer of ownership of the property to the Defendant, nor did it constitute a redistribution order under section 7(3) of the Divorce Act. The Defendant retained only a personal right of occupation, not ownership. The property was registered in Sangqwane's name, and he was entitled to alienate it. The Plaintiffs, as bona fide purchasers relying on the Deeds Registry, acquired valid title. The Defendant's counterclaim for setting...

Citation
[2011] ZAKZDHC 42
Parties
Plaintiff: Bonginkosi Edward Mkhize; Plaintiff: Nomusa Joyce Mkhize; Defendant: Cedrick Mabija NO
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
5 May 2011
Case Number
782/1998
Procedural Posture
Civil Trial / Stated Case Under Rule 33(4); Determination of Legal Question Without Oral Evidence
Outcome
Defendant's counterclaim dismissed. Plaintiffs' title to the property upheld.
Judges
Radebe
Legal Topics
Ownership of Immovable Property, Marriage Regimes, Divorce Orders, Deeds Registry, Alienation of Property
Land and Property Civil Procedure Ownership of Immovable Property Marriage Regimes Divorce Orders Deeds Registry Alienation of Property

Case Brief

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Parties

Bonginkosi Edward Mkhize

Plaintiff

Nomusa Joyce Mkhize

Plaintiff

Cedrick Mabija NO

Defendant

Procedural Posture

Civil Trial / Stated Case Under Rule 33(4); Determination of Legal Question Without Oral Evidence

Legal Issues

  1. 1 Whether the Plaintiffs acquired valid ownership of the immovable property from Sangqwane.
  2. 2 Whether the Defendant, as executor of the estate of the late Pumla Grenna Sangqwane, is entitled to have the transfer to the Plaintiffs set aside.
  3. 3 Whether the marriage regime between Sangqwane and the Defendant resulted in community of property affecting ownership rights.

Ratio Decidendi

The court found that the marriage between the Defendant and Sangqwane, contracted in 1975, was governed by the Black Administration Act and did not result in community of property, as no declaration to that effect was made. The decree of divorce did not order a transfer of ownership of the property to the Defendant, nor did it constitute a redistribution order under section 7(3) of the Divorce Act. The Defendant retained only a personal right of occupation, not ownership. The property was registered in Sangqwane's name, and he was entitled to alienate it. The Plaintiffs, as bona fide purchasers relying on the Deeds Registry, acquired valid title. The Defendant's counterclaim for setting...

Court Disposition

Defendant's counterclaim dismissed. Plaintiffs' title to the property upheld.

Orders

  • The Defendant's counterclaim is dismissed with costs.
  • The Plaintiffs' claim in convention is adjourned to the expedited trial roll pending compliance with the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, No. 19 of 1998.