Oreste v Devi and Another (17136/2007) [2014] ZAGPJHC 60 (4 April 2014)

Oreste v Devi and Another (17136/2007) [2014] ZAGPJHC 60 (4 April 2014)

The court held that the defendant's right to claim transfer of the immovable property under section 48(2) of the Abolition of Racially Based Land Measures Act is a personal right, not a real right. As such, it is subject to prescription under section 11(d) of the Prescription Act 68 of 1969, which prescribes a three-year period. The defendant failed to effect transfer within the statutory period and did not apply for an extension. The Supreme Court of Appeal and Constitutional Court have authoritatively held that such claims constitute debts subject to prescription. The defendant's reliance on contrary case law was rejected, and the special plea of prescription was upheld.

Citation
[2014] ZAGPJHC 60
Parties
Plaintiff: Balduzzi, Oreste; Defendant: Rajah, Devi; Defendant: Brasg, Stanley N.O.
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
4 April 2014
Case Number
17136/2007
Procedural Posture
Civil Trial / Judgment After Trial
Outcome
The defendant's claim for registration of transfer of the property into its name has prescribed. The special plea of prescription is upheld with costs.
Judges
Wepener
Legal Topics
Prescription Act, Abolition of Racially Based Land Measures Act, Transfer of Immovable Property, Personal Rights Vs Real Rights, Vindication, Registration of Transfer
Land and Property Civil Procedure Prescription Act Abolition of Racially Based Land Measures Act Transfer of Immovable Property Personal Rights Vs Real Rights Vindication Registration of Transfer

Case Brief

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Parties

Balduzzi, Oreste

Plaintiff

Rajah, Devi

Defendant

Brasg, Stanley N.O.

Defendant

Procedural Posture

Civil Trial / Judgment After Trial

Legal Issues

  1. 1 Whether the defendant's right to claim transfer of immovable property under section 48(2) of the Abolition of Racially Based Land Measures Act has prescribed.
  2. 2 Whether the right to claim transfer constitutes a personal right subject to prescription or a real right not subject to prescription.
  3. 3 Whether the defendant's failure to effect transfer within the statutory period affects entitlement to ownership.

Ratio Decidendi

The court held that the defendant's right to claim transfer of the immovable property under section 48(2) of the Abolition of Racially Based Land Measures Act is a personal right, not a real right. As such, it is subject to prescription under section 11(d) of the Prescription Act 68 of 1969, which prescribes a three-year period. The defendant failed to effect transfer within the statutory period and did not apply for an extension. The Supreme Court of Appeal and Constitutional Court have authoritatively held that such claims constitute debts subject to prescription. The defendant's reliance on contrary case law was rejected, and the special plea of prescription was upheld.

Court Disposition

The defendant's claim for registration of transfer of the property into its name has prescribed. The special plea of prescription is upheld with costs.

Orders

  • The defendant's counterclaim for registration of transfer of the immovable property is dismissed as prescribed.
  • The plaintiff's special plea of prescription is upheld.