Nhlapo v Nhlapo (883/2006) [2013] ZAFSHC 59 (18 April 2013)

Nhlapo v Nhlapo (883/2006) [2013] ZAFSHC 59 (18 April 2013)

The court found that the cession agreement executed between the parties was null and void and of no legal consequence. The respondent, as mortgagor, had no right to cede her encumbered real rights in the mortgaged property without the written consent of Nedbank Limited, the mortgagee, as expressly required by the mortgage bond. The purported cession was not registered, and the transaction attempted to convey real rights in land by means of a deed of cession rather than a deed of transfer, contrary to section 16 of the Deeds Registries Act. Furthermore, the applicant failed to establish a valid causa for the cession, and the respondent's signature was found to have been induced by duress,...

Citation
[2013] ZAFSHC 59
Parties
Applicant: Teboho David Nhlapo; Respondent: Makabelo Lydia Nhlapo
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
18 April 2013
Case Number
883/2006
Procedural Posture
Civil Application / Motion Proceedings; Application to Vary Divorce Order
Outcome
Application dismissed with costs.
Judges
Rampai
Legal Topics
Deeds Registries Act, Mortgage Bond Enforceability, Cession of Real Rights, Variation of Court Order, Divorce Settlement, Transfer of Immovable Property
Land and Property Civil Procedure Deeds Registries Act Mortgage Bond Enforceability Cession of Real Rights Variation of Court Order Divorce Settlement Transfer of Immovable Property

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Parties

Teboho David Nhlapo

Applicant

Makabelo Lydia Nhlapo

Respondent

Procedural Posture

Civil Application / Motion Proceedings; Application to Vary Divorce Order

Legal Issues

  1. 1 Whether the cession agreement signed on 18 November 2008 validly transferred ownership of the mortgaged property from the respondent to the applicant.
  2. 2 Whether the purported cession agreement is enforceable against the respondent and Nedbank Limited, the mortgagee.
  3. 3 Whether the applicant is entitled to have the divorce order and deed of settlement varied to reflect his ownership of the property.

Ratio Decidendi

The court found that the cession agreement executed between the parties was null and void and of no legal consequence. The respondent, as mortgagor, had no right to cede her encumbered real rights in the mortgaged property without the written consent of Nedbank Limited, the mortgagee, as expressly required by the mortgage bond. The purported cession was not registered, and the transaction attempted to convey real rights in land by means of a deed of cession rather than a deed of transfer, contrary to section 16 of the Deeds Registries Act. Furthermore, the applicant failed to establish a valid causa for the cession, and the respondent's signature was found to have been induced by duress,...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed.
  • The applicant is directed to pay the costs.