Nedbank Ltd v Venter NO and Others (15370/2012) [2013] ZAGPPHC 206 (26 June 2013)

Nedbank Ltd v Venter NO and Others (15370/2012) [2013] ZAGPPHC 206 (26 June 2013)

The court found that the sale agreements did not contain any provision for the creation or terms of a usufruct, nor did they mention the word 'usufruct' or specify any period. Consequently, no valid usufructs ever came into existence. The registration of the usufructs was therefore fraudulent and invalid. The court further held that the conduct of the conveyancing attorney, who registered the usufructs without proper enquiry or valid instruction, warranted referral to the Law Society and the Director of Public Prosecutions for investigation into her fitness to remain on the roll and possible fraud. The application for condonation for late filing of answering papers was not seriously...

Citation
[2013] ZAGPPHC 206
Parties
Applicant: Nedbank Limited; Respondent: Ettiene Mauritz Venter N.O.; Respondent: Enver Mohamed Iviotala N.O.; Respondent: Tseke Johannes Mphahlele N.O.; Respondent: Registrar of Deeds; Respondent: Tarryn de Jongh; Respondent: Henry Alexander Thomson Myers; Respondent: Trustees from time to time of Property One Trust
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 June 2013
Case Number
15370/2012
Procedural Posture
Civil Application / Judgment
Outcome
Application granted. Usufructs registered against the title deeds are cancelled. Costs awarded against specified respondents.
Judges
A.A. Louw
Legal Topics
Mortgage Bond Cancellation, Registration of Usufruct, Alienation of Land Act, Deeds Registries Act, Fraudulent Registration
Land and Property Civil Procedure Mortgage Bond Cancellation Registration of Usufruct Alienation of Land Act Deeds Registries Act Fraudulent Registration

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Parties

Nedbank Limited

Applicant

Ettiene Mauritz Venter N.O.

Respondent

Enver Mohamed Iviotala N.O.

Respondent

Tseke Johannes Mphahlele N.O.

Respondent

Registrar of Deeds

Respondent

Tarryn de Jongh

Respondent

Henry Alexander Thomson Myers

Respondent

Trustees from time to time of Property One Trust

Respondent

Procedural Posture

Civil Application / Judgment

Legal Issues

  1. 1 Whether the usufructs registered against the title deeds were validly created.
  2. 2 Whether the mortgage bonds should be cancelled due to fraudulent registration.
  3. 3 Whether the conduct of the conveyancing attorney warrants referral to the Law Society and Director of Public Prosecutions.

Ratio Decidendi

The court found that the sale agreements did not contain any provision for the creation or terms of a usufruct, nor did they mention the word 'usufruct' or specify any period. Consequently, no valid usufructs ever came into existence. The registration of the usufructs was therefore fraudulent and invalid. The court further held that the conduct of the conveyancing attorney, who registered the usufructs without proper enquiry or valid instruction, warranted referral to the Law Society and the Director of Public Prosecutions for investigation into her fitness to remain on the roll and possible fraud. The application for condonation for late filing of answering papers was not seriously...

Court Disposition

Application granted. Usufructs registered against the title deeds are cancelled. Costs awarded against specified respondents.

Orders

  • The Registrar of Deeds is authorised to cancel with immediate effect the usufructs registered against the title deed/bond documents of Erf 51, Montana Park, Registration Division JR (T35770/2007) and Erf 28, Wonderboom, Registration Division JR (T95697/2006).
  • The first, second, third, fifth and sixth respondents are ordered to pay the cost of this application jointly and severally.