Sarrahwitz v Maritz NO (819/2012) [2013] ZAECGHC 10 (7 February 2013)

Sarrahwitz v Maritz NO (819/2012) [2013] ZAECGHC 10 (7 February 2013)

The court held that the deed of sale between the applicant and the insolvent did not constitute a 'contract' as defined by the Alienation of Land Act, since the purchase price was not payable in instalments over a period exceeding one year. Therefore, sections 21 and 22 of the Act do not apply. Under common law, immoveable property sold but not transferred before sequestration vests in the trustee, and the purchaser has only a concurrent claim against the estate. The applicant is not entitled to transfer of the property as of right, and the trustee has discretion whether to execute the agreement. The application was dismissed with costs.

Citation
[2013] ZAECGHC 10
Parties
Applicant: Virginia Sarrahwitz; Respondent: Hermanus Maritz NO
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
7 February 2013
Case Number
819/2012
Procedural Posture
Civil Application / First Instance
Outcome
Application dismissed with costs.
Judges
G Goosen
Legal Topics
Alienation of Land Act, Insolvency of Seller, Transfer of Immoveable Property, Concurrent Claims, Common Law Principles
Land and Property Civil Procedure Alienation of Land Act Insolvency of Seller Transfer of Immoveable Property Concurrent Claims Common Law Principles

Case Brief

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Parties

Virginia Sarrahwitz

Applicant

Hermanus Maritz NO

Respondent

Procedural Posture

Civil Application / First Instance

Legal Issues

  1. 1 Whether the applicant is entitled to transfer of immoveable property purchased from the insolvent prior to sequestration.
  2. 2 Whether sections 21 and 22 of the Alienation of Land Act apply to the deed of sale in question.
  3. 3 Whether the applicant's claim for transfer has prescribed.

Ratio Decidendi

The court held that the deed of sale between the applicant and the insolvent did not constitute a 'contract' as defined by the Alienation of Land Act, since the purchase price was not payable in instalments over a period exceeding one year. Therefore, sections 21 and 22 of the Act do not apply. Under common law, immoveable property sold but not transferred before sequestration vests in the trustee, and the purchaser has only a concurrent claim against the estate. The applicant is not entitled to transfer of the property as of right, and the trustee has discretion whether to execute the agreement. The application was dismissed with costs.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.