Nedbank Ltd v Mendelow NO and Another (686/12) [2013] ZASCA 98; 2013 (6) SA 130 (SCA) (5 September 2013)

Nedbank Ltd v Mendelow NO and Another (686/12) [2013] ZASCA 98; 2013 (6) SA 130 (SCA) (5 September 2013)

The Supreme Court of Appeal held that registration of transfer of immovable property effected through fraud or forgery does not result in the passing of ownership. The deeds registration system is negative and does not guarantee title; ownership only passes if there is a genuine intention to transfer. In this case, Riccardo Valente forged signatures to induce the Master to sign a certificate and the Registrar of Deeds to register the property and bond. There was no intention by the true beneficiaries to transfer ownership, so the company never became the owner and could not grant a valid mortgage bond. The executors were entitled to vindicatory relief for reregistration of the property in...

Citation
[2013] ZASCA 98
Parties
Appellant: Nedbank Limited; Respondent: Ronald Mendelow NO; Respondent: Lazarus Ledwaba NO
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
5 September 2013
Case Number
686/12
Procedural Posture
Civil Appeal / Appeal From North Gauteng High Court, Pretoria
Outcome
Appeal dismissed with costs, including those of two counsel where so employed.
Judges
Lewis, Maya, Malan, Shongwe, Zondi
Legal Topics
Transfer of Ownership, Fraudulent Conveyancing, Rei Vindicatio, Administrative Action Review, Mortgage Bond Cancellation
Land and Property Civil Procedure Transfer of Ownership Fraudulent Conveyancing Rei Vindicatio Administrative Action Review Mortgage Bond Cancellation

Case Brief

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Parties

Nedbank Limited

Appellant

Ronald Mendelow NO

Respondent

Lazarus Ledwaba NO

Respondent

Procedural Posture

Civil Appeal / Appeal From North Gauteng High Court, Pretoria

Legal Issues

  1. 1 Whether registration of transfer of immovable property pursuant to fraud effects a valid transfer of ownership.
  2. 2 Whether the person in whose name the property is registered after a fraudulent transfer is the owner and can grant a valid mortgage bond.
  3. 3 Whether the acts of the Master and Registrar of Deeds in this context constitute administrative action reviewable under PAJA.

Ratio Decidendi

The Supreme Court of Appeal held that registration of transfer of immovable property effected through fraud or forgery does not result in the passing of ownership. The deeds registration system is negative and does not guarantee title; ownership only passes if there is a genuine intention to transfer. In this case, Riccardo Valente forged signatures to induce the Master to sign a certificate and the Registrar of Deeds to register the property and bond. There was no intention by the true beneficiaries to transfer ownership, so the company never became the owner and could not grant a valid mortgage bond. The executors were entitled to vindicatory relief for reregistration of the property in...

Court Disposition

Appeal dismissed with costs, including those of two counsel where so employed.

Orders

  • The appeal is dismissed with costs, including those of two counsel where so employed.
  • The property is to be reregistered in the name of the deceased estate.