Seboni N.O and Another v ABSA Bank Limited and Others (Leave to Appeal) (18797/2021) [2025] ZAGPPHC 6 (17 January 2025)

Seboni N.O and Another v ABSA Bank Limited and Others (Leave to Appeal) (18797/2021) [2025] ZAGPPHC 6 (17 January 2025)

The court found that the seventh respondent failed to demonstrate reasonable prospects of success for leave to appeal. The applicants did not consent to the transfer of their property; the transaction was fraudulent from inception, and the seventh respondent was aware of the dispute over title. The abstract theory of transfer does not apply where the real agreement is vitiated by fraud, and ownership never passed to SSP or the seventh respondent. No conflicting judgments were identified, and the order setting aside documents was not vague, as it only affected documents signed to give effect to the fraudulent scheme. The application for leave to appeal was dismissed, and costs were awarded...

Citation
[2025] ZAGPPHC 6
Parties
Applicant: Matshwene Maria Magdaline Seboni N.O.; Applicant: Lethabo Edmund Seboni; Respondent: ABSA Bank Limited; Respondent: Southern Spirit Properties 87 (PTY) LTD (in liquidation); Respondent: Asset Management Specialist (PTY) LTD (deregistered); Respondent: Registrar of Deeds, South Africa; Respondent: National Credit Regulator; Respondent: Tshepo Harry Nonyane N.O.; Respondent: Andrew Makgoana Kotlolo; Respondent: First Rand Bank Limited; Respondent: Proc Corp 187CC; Respondent: SB Gurantee SO (RF) (PTY) (LTD)
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 January 2025
Case Number
18797/2021
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Main Judgment Delivered on 29 August 2024.
Outcome
Application for leave to appeal dismissed with costs, including costs of two counsel on Scale B.
Judges
Gwala AJ
Legal Topics
Leave to Appeal Standard, Fraudulent Transfer, Abstract Theory of Transfer, Bona Fide Purchaser, Setting Aside Documents
Civil Procedure Land and Property Leave to Appeal Standard Fraudulent Transfer Abstract Theory of Transfer Bona Fide Purchaser Setting Aside Documents

Case Brief

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Parties

Matshwene Maria Magdaline Seboni N.O.

Applicant

Lethabo Edmund Seboni

Applicant

ABSA Bank Limited

Respondent

Southern Spirit Properties 87 (PTY) LTD (in liquidation)

Respondent

Asset Management Specialist (PTY) LTD (deregistered)

Respondent

Registrar of Deeds, South Africa

Respondent

National Credit Regulator

Respondent

Tshepo Harry Nonyane N.O.

Respondent

Andrew Makgoana Kotlolo

Respondent

First Rand Bank Limited

Respondent

Proc Corp 187CC

Respondent

SB Gurantee SO (RF) (PTY) (LTD)

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Main Judgment Delivered on 29 August 2024.

Legal Issues

  1. 1 Whether the seventh respondent has demonstrated reasonable prospects of success for leave to appeal.
  2. 2 Whether the applicants consented to the transfer of property to the second respondent.
  3. 3 Whether the seventh respondent was a bona fide purchaser for value without notice of defect in title.

Ratio Decidendi

The court found that the seventh respondent failed to demonstrate reasonable prospects of success for leave to appeal. The applicants did not consent to the transfer of their property; the transaction was fraudulent from inception, and the seventh respondent was aware of the dispute over title. The abstract theory of transfer does not apply where the real agreement is vitiated by fraud, and ownership never passed to SSP or the seventh respondent. No conflicting judgments were identified, and the order setting aside documents was not vague, as it only affected documents signed to give effect to the fraudulent scheme. The application for leave to appeal was dismissed, and costs were awarded...

Court Disposition

Application for leave to appeal dismissed with costs, including costs of two counsel on Scale B.

Orders

  • The application for leave to appeal is dismissed with costs, including costs of two counsel on Scale B.