Philani-Ma-Afrika and Others v Mailula and Others, Mailula v Mashele and Others [2008] ZAGPHC 446; 4341/08, 2008/4453 (4 November 2008)

Philani-Ma-Afrika and Others v Mailula and Others, Mailula v Mashele and Others [2008] ZAGPHC 446; 4341/08, 2008/4453 (4 November 2008)

The court found that although section 228 of the Companies Act was not complied with, the transfer of Angus Mansions to Mr Mailula had already occurred and both parties had performed. The Registrar of Deeds was entitled to rely on the conveyancer's assurances, and the purchaser was not required to verify internal company resolutions. The court held that setting aside the transfer would cause disproportionate prejudice to innocent parties, including the purchaser and mortgagee, and that the applicant's remedy lay in damages, not in reversal of the transfer. The application to set aside the sale and transfer was dismissed, and the eviction application was granted.

Citation
[2008] ZAGPHC 446
Parties
Applicant: Philani-Ma-Afrika; Respondent: William Marofane Mailula; Respondent: Trust for Urban Housing Finance; Respondent: J N Bhana and Associates; Respondent: Registrar of Deeds; Applicant: William Marofane Mailula; Respondent: Andrew Mashele; Respondent: City of Johannesburg
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
4 November 2008
Case Number
4341/08; 2008/4453
Procedural Posture
Urgent Application / Ex Tempore Judgment on Two Consolidated Applications: One to Set Aside Sale and Transfer of Property, and One for Eviction of Occupiers.
Outcome
Application to set aside sale and transfer dismissed; eviction application granted.
Judges
Willis
Legal Topics
Section 228 Companies Act, Transfer of Immovable Property, Eviction Proceedings, Deeds Registry Act, Bona Fide Purchaser, Company Resolution Requirements
Land and Property Civil Procedure Commercial and Corporate Section 228 Companies Act Transfer of Immovable Property Eviction Proceedings Deeds Registry Act Bona Fide Purchaser +1 more

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Parties

Philani-Ma-Afrika

Applicant

William Marofane Mailula

Respondent

Trust for Urban Housing Finance

Respondent

J N Bhana and Associates

Respondent

Registrar of Deeds

Respondent

William Marofane Mailula

Applicant

Andrew Mashele

Respondent

City of Johannesburg

Respondent

Procedural Posture

Urgent Application / Ex Tempore Judgment on Two Consolidated Applications: One to Set Aside Sale and Transfer of Property, and One for Eviction of Occupiers.

Legal Issues

  1. 1 Whether the sale and transfer of Angus Mansions from Philani-Ma-Afrika to Mr Mailula should be set aside due to non-compliance with section 228 of the Companies Act.
  2. 2 Whether the eviction of the occupiers of Angus Mansions should be granted following the transfer.
  3. 3 Whether the purchaser and mortgagee are entitled to rely on the conveyancer's assurances regarding compliance with company resolutions.

Ratio Decidendi

The court found that although section 228 of the Companies Act was not complied with, the transfer of Angus Mansions to Mr Mailula had already occurred and both parties had performed. The Registrar of Deeds was entitled to rely on the conveyancer's assurances, and the purchaser was not required to verify internal company resolutions. The court held that setting aside the transfer would cause disproportionate prejudice to innocent parties, including the purchaser and mortgagee, and that the applicant's remedy lay in damages, not in reversal of the transfer. The application to set aside the sale and transfer was dismissed, and the eviction application was granted.

Court Disposition

Application to set aside sale and transfer dismissed; eviction application granted.

Orders

  • The application in case 2008/14341 is dismissed with costs.
  • The first to 68 respondents and all those claiming occupation through and under them are evicted from Angus Mansions, Erf 4562, 268 Jeppe Street.