Pocock v De Oliveira and Others (06/2889) [2006] ZAGPHC 245; 2007 (2) SA 90 (W) (10 October 2006)

Pocock v De Oliveira and Others (06/2889) [2006] ZAGPHC 245; 2007 (2) SA 90 (W) (10 October 2006)

The court found that the applicant failed to establish that Erven 5554 and 5555 were notarially tied in a manner that conferred ownership of both erven to her. The notarial agreement of 1938 and subsequent restrictive title conditions did not consolidate the erven into a single property, nor did they create a real right of ownership in favour of the applicant. The applicant did not possess Erf 5555 openly and as owner for the uninterrupted period required by the Prescription Act, nor was her possession adverse to the true owner. The principles of accession were not applicable, as there was no physical attachment or intention sufficient to merge the properties into a new entity. The...

Citation
[2006] ZAGPHC 245
Parties
Applicant: Estelle Pocock; Respondent: Luis Filipe Seleiro Casales De Oliveira; Respondent: The City of Johannesburg; Respondent: The Registrar of Deeds
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
10 October 2006
Case Number
06/2889
Procedural Posture
Civil Application / First Instance Judgment
Outcome
Application dismissed with costs.
Judges
M Jajbhay
Legal Topics
Restrictive Title Conditions, Notarial Tie Agreements, Prescription Act, Accession, Transfer of Immovable Property
Land and Property Civil Procedure Restrictive Title Conditions Notarial Tie Agreements Prescription Act Accession Transfer of Immovable Property

Case Brief

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Parties

Estelle Pocock

Applicant

Luis Filipe Seleiro Casales De Oliveira

Respondent

The City of Johannesburg

Respondent

The Registrar of Deeds

Respondent

Procedural Posture

Civil Application / First Instance Judgment

Legal Issues

  1. 1 Whether Erven 5554 and 5555 Kensington Township were notarially tied pursuant to the 1938 Notarial Agreement.
  2. 2 Whether the applicant acquired ownership of Erf 5555 by prescription under the Prescription Act 68 of 1969.
  3. 3 Whether the applicant is entitled to transfer of Erf 5555 by virtue of accession or restrictive title conditions.

Ratio Decidendi

The court found that the applicant failed to establish that Erven 5554 and 5555 were notarially tied in a manner that conferred ownership of both erven to her. The notarial agreement of 1938 and subsequent restrictive title conditions did not consolidate the erven into a single property, nor did they create a real right of ownership in favour of the applicant. The applicant did not possess Erf 5555 openly and as owner for the uninterrupted period required by the Prescription Act, nor was her possession adverse to the true owner. The principles of accession were not applicable, as there was no physical attachment or intention sufficient to merge the properties into a new entity. The...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.