Radebe and Another v Sheriff For the District of Vereeniging and Others (31495/13) [2014] ZAGPJHC 228 (25 September 2014)

Radebe and Another v Sheriff For the District of Vereeniging and Others (31495/13) [2014] ZAGPJHC 228 (25 September 2014)

The court found the Brusson scheme to be fraudulent, with the applicants never intending to sell their property but rather to secure a loan. The agreements signed were simulated and invalid, lacking the necessary intention for transfer of ownership. The mortgage bond registered in favour of Nedbank was declared invalid as it arose from unlawful transactions. Estoppel cannot be used to perpetuate an unlawful state of affairs, and the caveat subscriptor rule does not bind the applicants where they were misled. The application was not time-barred as the applicants acted promptly upon learning of the judgment. The applicants are entitled to rescission of the default judgment declaring the...

Citation
[2014] ZAGPJHC 228
Parties
Applicant: Gordan Ndzimande Radebe; Applicant: Lettie Radebe; Respondent: Sheriff for the District of Vereeniging; Respondent: Nedbank Limited; Respondent: Lucas Maloma Mamoshubane; Respondent: Cornelia Maria Cloete N.O.; Respondent: Harry Kaplan N.O.; Respondent: Anna Paula De Oliviera N.O.; Respondent: Sophie M Poopedi N.O.; Respondent: Registrar of Deeds, Johannesburg
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
25 September 2014
Case Number
31495/13
Procedural Posture
Urgent Application / Application for Rescission of Default Judgment and Declaratory Relief
Outcome
Application granted. Rescission of paragraph 4 of the default judgment; Brusson-related agreements declared invalid and set aside; restitution of property to applicants; mortgage bond declared invalid and set aside; costs awarded against Nedbank.
Judges
Nicholls
Legal Topics
Fraudulent Property Scheme, Rescission of Judgment, Mortgage Bond Invalidity, Restitution of Property, Estoppel, Intention to Transfer
Land and Property Civil Procedure Commercial and Corporate Fraudulent Property Scheme Rescission of Judgment Mortgage Bond Invalidity Restitution of Property Estoppel +1 more

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Parties

Gordan Ndzimande Radebe

Applicant

Lettie Radebe

Applicant

Sheriff for the District of Vereeniging

Respondent

Nedbank Limited

Respondent

Lucas Maloma Mamoshubane

Respondent

Cornelia Maria Cloete N.O.

Respondent

Harry Kaplan N.O.

Respondent

Anna Paula De Oliviera N.O.

Respondent

Sophie M Poopedi N.O.

Respondent

Registrar of Deeds, Johannesburg

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Default Judgment and Declaratory Relief

Legal Issues

  1. 1 Whether the Brusson scheme agreements were fraudulent and invalid.
  2. 2 Whether the applicants had the intention to transfer ownership of their property.
  3. 3 Whether the mortgage bond registered in favour of Nedbank is valid.

Ratio Decidendi

The court found the Brusson scheme to be fraudulent, with the applicants never intending to sell their property but rather to secure a loan. The agreements signed were simulated and invalid, lacking the necessary intention for transfer of ownership. The mortgage bond registered in favour of Nedbank was declared invalid as it arose from unlawful transactions. Estoppel cannot be used to perpetuate an unlawful state of affairs, and the caveat subscriptor rule does not bind the applicants where they were misled. The application was not time-barred as the applicants acted promptly upon learning of the judgment. The applicants are entitled to rescission of the default judgment declaring the...

Court Disposition

Application granted. Rescission of paragraph 4 of the default judgment; Brusson-related agreements declared invalid and set aside; restitution of property to applicants; mortgage bond declared invalid and set aside; costs awarded against Nedbank.

Orders

  • Paragraph 4 of the default judgment granted against the third respondent on 22 February 2011, declaring the property executable, is rescinded.
  • The agreements headed 'Offer to Purchase', 'Deed of Sale', and 'Memorandum of Agreement' are declared invalid, unlawful, and of no force or effect.