Oreste v Devi and Another (17136/2007) [2014] ZAGPPHC 189 (4 April 2014)

Oreste v Devi and Another (17136/2007) [2014] ZAGPPHC 189 (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. Such a right is subject to prescription under section 11(d) of the Prescription Act, which prescribes after three years. The defendant failed to effect transfer within the statutory period and did not apply for extension. The authorities of the Supreme Court of Appeal and Constitutional Court establish that claims for transfer of immovable property are debts subject to prescription. The court declined to follow contrary decisions and upheld the plaintiff's special plea of prescription, finding...

Citation
[2014] ZAGPPHC 189
Parties
Plaintiff: Balduzzi, Oreste; Defendant: Rajah, Devi; Defendant: Brasg, Stanley N.O.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
4 April 2014
Case Number
17136/2007
Procedural Posture
Civil Trial / Judgment After Hearing of Special Plea of Prescription and Counterclaim
Outcome
The special plea of prescription is upheld; the defendant's claim for registration of transfer of the property is dismissed with costs.
Judges
Wepener
Legal Topics
Abolition of Racially Based Land Measures Act, Prescription Act, Transfer of Immovable Property, Personal Rights Vs Real Rights
Land and Property Civil Procedure Abolition of Racially Based Land Measures Act Prescription Act Transfer of Immovable Property Personal Rights Vs Real Rights

Case Brief

Summary, issues, holding and outcome

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Parties

Balduzzi, Oreste

Plaintiff

Rajah, Devi

Defendant

Brasg, Stanley N.O.

Defendant

Procedural Posture

Civil Trial / Judgment After Hearing of Special Plea of Prescription and Counterclaim

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 is 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. Such a right is subject to prescription under section 11(d) of the Prescription Act, which prescribes after three years. The defendant failed to effect transfer within the statutory period and did not apply for extension. The authorities of the Supreme Court of Appeal and Constitutional Court establish that claims for transfer of immovable property are debts subject to prescription. The court declined to follow contrary decisions and upheld the plaintiff's special plea of prescription, finding...

Court Disposition

The special plea of prescription is upheld; the defendant's claim for registration of transfer of the property is dismissed with costs.

Orders

  • The defendant's claim for registration of transfer of the property into its name is declared prescribed.
  • The plaintiff's special plea of prescription is upheld.