Mohali v Mohali and Others (39683/2019) [2023] ZAGPJHC 44 (24 January 2023)

Mohali v Mohali and Others (39683/2019) [2023] ZAGPJHC 44 (24 January 2023)

The court found that the first respondent fraudulently misrepresented the true ownership of the property to both the Master of the High Court and the conveyancer, resulting in the unlawful sale and registration of the property in the name of the second respondent. The applicant provided sufficient documentary evidence to establish her customary marriage to the deceased and her joint ownership of the property. The first respondent was not legally competent to transfer the property, and the appointment as executor was invalid. The sale and registration were declared invalid and set aside, and the second respondent was interdicted from damaging the property. No order as to costs was made.

Citation
[2023] ZAGPJHC 44
Parties
Applicant: Makoma Mohali; Respondent: Phetole Victor Mohali; Respondent: Gideon Gordon Dibane; Respondent: Makoma Ngumi Mohale; Respondent: Sello Mohali; Respondent: Master of the High Court South Gauteng Johannesburg; Respondent: Registrar of Deed Office Pretoria; Respondent: Standard Bank of South Africa Limited; Respondent: PhangeniProperties
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
24 January 2023
Case Number
39683/2019
Procedural Posture
Review Application / Unopposed Application for Declaratory and Interdictory Relief
Outcome
Application granted. The sale, transfer, and registration of the property are declared invalid and set aside. The appointment of the first respondent as executor is declared invalid and set aside. The second respondent is interdicted from damaging the property. No order as to costs.
Judges
E Molahlehi
Legal Topics
Fraudulent Transfer of Property, Customary Marriage Recognition, Declaratory Relief, Executor Appointment, Misrepresentation, Setting Aside Registration
Land and Property Civil Procedure Delict Fraudulent Transfer of Property Customary Marriage Recognition Declaratory Relief Executor Appointment Misrepresentation +1 more

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Parties

Makoma Mohali

Applicant

Phetole Victor Mohali

Respondent

Gideon Gordon Dibane

Respondent

Makoma Ngumi Mohale

Respondent

Sello Mohali

Respondent

Master of the High Court South Gauteng Johannesburg

Respondent

Registrar of Deed Office Pretoria

Respondent

Standard Bank of South Africa Limited

Respondent

PhangeniProperties

Respondent

Procedural Posture

Review Application / Unopposed Application for Declaratory and Interdictory Relief

Legal Issues

  1. 1 Whether the sale, transfer, and registration of the immovable property was valid or fraudulent.
  2. 2 Whether the applicant was married to the deceased in terms of customary law and thus entitled to protection.
  3. 3 Whether the appointment of the first respondent as executor was valid.

Ratio Decidendi

The court found that the first respondent fraudulently misrepresented the true ownership of the property to both the Master of the High Court and the conveyancer, resulting in the unlawful sale and registration of the property in the name of the second respondent. The applicant provided sufficient documentary evidence to establish her customary marriage to the deceased and her joint ownership of the property. The first respondent was not legally competent to transfer the property, and the appointment as executor was invalid. The sale and registration were declared invalid and set aside, and the second respondent was interdicted from damaging the property. No order as to costs was made.

Court Disposition

Application granted. The sale, transfer, and registration of the property are declared invalid and set aside. The appointment of the first respondent as executor is declared invalid and set aside. The second respondent is interdicted from damaging the property. No order as to costs.

Orders

  • The sale transaction of the immovable property referred to as Erf [....] S[....] location T[....], Gauteng Province entered into between first respondent and second respondent is declared invalid and set aside.
  • The registration of the immovable property referred to as Erf [....] S[....] location T[....], Gauteng Province in the name of the second respondent by the sixth respondent is invalid and set aside.