Moore and Another v Sheriff for the District of Vereeniging and Others (22082/2013) [2014] ZAGPJHC 230 (26 September 2014)

Moore and Another v Sheriff for the District of Vereeniging and Others (22082/2013) [2014] ZAGPJHC 230 (26 September 2014)

The court found that the agreements concluded by the applicants with Brusson and Kabini were simulated transactions intended to secure a loan rather than transfer ownership of the property. There was no consensus to transfer ownership, and the agreements were unlawful, either as an unlawful pactum commisorium or for contravening the National Credit Act. Consequently, the applicants were entitled to restitution of the property, subject to reinstatement of the previous mortgage bonds and repayment of the amount received from Brusson. The mortgage bond registered in favour of ABSA Bank was set aside, as real rights cannot be created absent genuine intent to transfer ownership. The applicants...

Citation
[2014] ZAGPJHC 230
Parties
Applicant: Christine Martha Moore; Applicant: Jacques Moore; Respondent: Sheriff for the District of Vereeniging; Respondent: Kabini Sunnyboy; Respondent: ABSA Bank Limited; Respondent: Cornelia Maria Cloete N.O.; Respondent: Harry Kaplin N.O.; Respondent: Anna Paula De Oliviera N.O.; Respondent: Sophie Poopedi N.O.; Respondent: Registrar of Deeds, Johannesburg
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
26 September 2014
Case Number
22082/2013
Procedural Posture
Civil Application / Judgment After Consolidated Hearing of Rescission and Declaratory Applications
Outcome
Application granted in part; agreements declared invalid and set aside; restitution of property ordered subject to conditions; mortgage bond set aside; rescission of executability order granted; each party to pay own costs.
Judges
Chohan
Legal Topics
Simulated Transaction, Rei Vindicatio, Mortgage Bond Validity, National Credit Act Compliance, Rescission of Judgment, Locus Standi
Land and Property Banking and Finance Civil Procedure Simulated Transaction Rei Vindicatio Mortgage Bond Validity National Credit Act Compliance Rescission of Judgment +1 more

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Parties

Christine Martha Moore

Applicant

Jacques Moore

Applicant

Sheriff for the District of Vereeniging

Respondent

Kabini Sunnyboy

Respondent

ABSA Bank Limited

Respondent

Cornelia Maria Cloete N.O.

Respondent

Harry Kaplin N.O.

Respondent

Anna Paula De Oliviera N.O.

Respondent

Sophie Poopedi N.O.

Respondent

Registrar of Deeds, Johannesburg

Respondent

Procedural Posture

Civil Application / Judgment After Consolidated Hearing of Rescission and Declaratory Applications

Legal Issues

  1. 1 Whether the agreements concluded by the applicants with Brusson and Kabini were simulated transactions and thus invalid.
  2. 2 Whether the applicants are entitled to restitution of the immovable property.
  3. 3 Whether the mortgage bond registered in favour of ABSA Bank Limited is invalid and liable to be set aside.

Ratio Decidendi

The court found that the agreements concluded by the applicants with Brusson and Kabini were simulated transactions intended to secure a loan rather than transfer ownership of the property. There was no consensus to transfer ownership, and the agreements were unlawful, either as an unlawful pactum commisorium or for contravening the National Credit Act. Consequently, the applicants were entitled to restitution of the property, subject to reinstatement of the previous mortgage bonds and repayment of the amount received from Brusson. The mortgage bond registered in favour of ABSA Bank was set aside, as real rights cannot be created absent genuine intent to transfer ownership. The applicants...

Court Disposition

Application granted in part; agreements declared invalid and set aside; restitution of property ordered subject to conditions; mortgage bond set aside; rescission of executability order granted; each party to pay own costs.

Orders

  • The memorandum of agreement between the applicants and Brusson Finance (Pty) Limited, the offer to purchase between the applicants and Kabini dated 4 June 2009, and the sale agreement between the applicants and Kabini dated 18 June 2009 are declared invalid, unlawful, and of no force and effect.
  • The above agreements are set aside.