Mohamed-Padayachee and Another v Mohamed and Another (17370/2022) [2023] ZAGPJHC 1212 (24 October 2023)

Mohamed-Padayachee and Another v Mohamed and Another (17370/2022) [2023] ZAGPJHC 1212 (24 October 2023)

The court found that the parties' common intention, as evidenced by the signed offer to purchase, was for the applicants and the first respondent to be co-owners of the property. The registration of the property solely in the first respondent's name was contrary to this intention. The first respondent's defence of prescription was rejected, as claims for rectification are not subject to extinctive prescription. The court held that the applicants had established a proper case for rectification and ordered that the property be transferred to reflect their undivided one-third shares.

Citation
[2023] ZAGPJHC 1212
Parties
Applicant: Keshia Mohamed-Padayachee; Applicant: Clint Raymond Padayachee; Respondent: Rashida Mohamed; Respondent: Registrar of Deeds
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
24 October 2023
Case Number
17370/2022
Procedural Posture
Civil Application / First Instance Judgment
Outcome
Application granted. The property is to be transferred to reflect the applicants' undivided one-third shares.
Judges
Strijdom
Legal Topics
Rectification of Deeds, Co Ownership, Prescription, Transfer of Property
Land and Property Civil Procedure Rectification of Deeds Co Ownership Prescription Transfer of Property

Case Brief

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Parties

Keshia Mohamed-Padayachee

Applicant

Clint Raymond Padayachee

Applicant

Rashida Mohamed

Respondent

Registrar of Deeds

Respondent

Procedural Posture

Civil Application / First Instance Judgment

Legal Issues

  1. 1 Whether the deed of transfer for the property should be rectified to reflect the applicants as co-owners.
  2. 2 Whether the first respondent's registration of the property in her sole name was fraudulent or contrary to the parties' common intention.
  3. 3 Whether the applicants' claim for rectification is barred by extinctive prescription.

Ratio Decidendi

The court found that the parties' common intention, as evidenced by the signed offer to purchase, was for the applicants and the first respondent to be co-owners of the property. The registration of the property solely in the first respondent's name was contrary to this intention. The first respondent's defence of prescription was rejected, as claims for rectification are not subject to extinctive prescription. The court held that the applicants had established a proper case for rectification and ordered that the property be transferred to reflect their undivided one-third shares.

Court Disposition

Application granted. The property is to be transferred to reflect the applicants' undivided one-third shares.

Orders

  • The first respondent is ordered to effect transfer of an undivided one-third share in Erf [...] Mulbarton, situated at 32 The Broads, Mulbarton, to each of the applicants.
  • Should the first respondent fail to do so, the Sheriff is authorised to sign all necessary documents to effect transfer.