Shea v Mckenna Inc. and Others (20763/2004) [2007] ZAKZHC 13; [2008] 1 All SA 491 (D); (16 November 2007)

Shea v Mckenna Inc. and Others (20763/2004) [2007] ZAKZHC 13; [2008] 1 All SA 491 (D); (16 November 2007)

The court found that the sale agreement concluded by the Second Defendant as curator bonis before receiving letters of curatorship from the Master was a nullity under section 71(1) of the Administration of Estates Act. This nullity extended to the subsequent transfer of the property to the Third Defendant, as both the underlying agreement and the real agreement required for transfer under the abstract theory were tainted by statutory prohibition. The intention of the legislature, reinforced by the penal sanction in section 102(1)(g), was to protect the interests of the person whose estate was administered, not third parties. The Plaintiff was therefore entitled to reclaim the property,...

Citation
[2007] ZAKZHC 13
Parties
Plaintiff: Clare Veronica Shea; Defendant: Legator McKenna Inc.; Defendant: Michael Hugh George McKenna; Defendant: Jamie Erskine; Defendant: Tania Louise Erskine; Defendant: Master of the High Court (Natal Provincial Division); Defendant: Registrar of Deeds, Pietermaritzburg; Defendant: ABSA Bank Limited
Court
High Courts - Kwazulu Natal
Jurisdiction
South Africa
Judgment Date
16 November 2007
Case Number
20763/2004
Procedural Posture
Civil Judgment / Separated Trial on Claim 1 (validity of Property Transfer)
Outcome
Plaintiff succeeds on Claim 1; sale agreement and transfer declared null and void; property to be restored to Plaintiff upon repayment of purchase price; Defendants to pay costs.
Judges
Motala
Legal Topics
Curatorship, Invalid Transfer of Immovable Property, Administration of Estates Act, Rei Vindicatio, Condictio Ob Turpem Vel Iniustam Causam
Land and Property Civil Procedure Curatorship Invalid Transfer of Immovable Property Administration of Estates Act Rei Vindicatio Condictio Ob Turpem Vel Iniustam Causam

Case Brief

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Parties

Clare Veronica Shea

Plaintiff

Legator McKenna Inc.

Defendant

Michael Hugh George McKenna

Defendant

Jamie Erskine

Defendant

Tania Louise Erskine

Defendant

Master of the High Court (Natal Provincial Division)

Defendant

Registrar of Deeds, Pietermaritzburg

Defendant

ABSA Bank Limited

Defendant

Procedural Posture

Civil Judgment / Separated Trial on Claim 1 (validity of Property Transfer)

Legal Issues

  1. 1 Whether the sale agreement concluded by the curator bonis prior to receipt of letters of curatorship is null and void.
  2. 2 Whether transfer of ownership of immovable property to the Third Defendant is valid under the abstract theory of transfer.
  3. 3 Whether the Plaintiff is entitled to vindicate or reclaim the property from the Third Defendant.

Ratio Decidendi

The court found that the sale agreement concluded by the Second Defendant as curator bonis before receiving letters of curatorship from the Master was a nullity under section 71(1) of the Administration of Estates Act. This nullity extended to the subsequent transfer of the property to the Third Defendant, as both the underlying agreement and the real agreement required for transfer under the abstract theory were tainted by statutory prohibition. The intention of the legislature, reinforced by the penal sanction in section 102(1)(g), was to protect the interests of the person whose estate was administered, not third parties. The Plaintiff was therefore entitled to reclaim the property,...

Court Disposition

Plaintiff succeeds on Claim 1; sale agreement and transfer declared null and void; property to be restored to Plaintiff upon repayment of purchase price; Defendants to pay costs.

Orders

  • The agreement of sale concluded between the Second and Third Defendants on 22 April 2002 in respect of 62 Marriott Road, Durban is declared null and void ab initio.
  • The registration of transfer of the said immovable property in the name of the Third Defendant on 26 July 2002 is declared null and void.