Sidwell N.O v Buisson N.O and Others (4944/2014) [2015] ZAFSHC 177 (18 August 2015)

Sidwell N.O v Buisson N.O and Others (4944/2014) [2015] ZAFSHC 177 (18 August 2015)

The court found that the transfer and registration of the farm Guarriekop 330 to the Doringboom Trust was invalid due to a fatal defect in the real agreement. The resolutions authorising the sale and transfer were not validly passed, as Mr Stone's resignation as trustee was not effective at the relevant time and a quorum was not present at the meeting. The power of attorney to transfer was unauthorised and incorrectly recorded the fifth respondent as sole trustee, which was not the case. These defects were not merely administrative and could not be rectified under section 4(1)(b) of the Deeds Registries Act. As a result, the transfer and registration of ownership, as well as the mortgage...

Citation
[2015] ZAFSHC 177
Parties
Applicant: Thakeli Thubaka Sidwell N.O; Respondent: Phillipus Martinus du Buisson N.O; Respondent: Sanet du Buisson N.O; Respondent: N.O. Oelofse Attorneys; Respondent: Standard Bank of South Africa; Respondent: Tsepo Paulos Botsane N.O; Respondent: Tsepo Benedict Sebutsoe N.O; Respondent: Registrar of Deeds, Bloemfontein; Respondent: Master of the High Court, Bloemfontein; Respondent: Rural Development and Land Reform Department, Bloemfontein
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
18 August 2015
Case Number
4944/2014
Procedural Posture
Review Application / Final Judgment After Opposed Application
Outcome
Application granted. Transfer and registration of the farm to the Doringboom Trust set aside. Mortgage bond cancelled. Costs awarded against first, second, and third respondents.
Judges
Van Zyl
Legal Topics
Trustee Authority, Transfer of Immovable Property, Real Agreement, Deeds Registries Act, Mortgage Bond Cancellation, Trust Property Control Act
Land and Property Civil Procedure Commercial and Corporate Trustee Authority Transfer of Immovable Property Real Agreement Deeds Registries Act Mortgage Bond Cancellation +1 more

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Parties

Thakeli Thubaka Sidwell N.O

Applicant

Phillipus Martinus du Buisson N.O

Respondent

Sanet du Buisson N.O

Respondent

N.O. Oelofse Attorneys

Respondent

Standard Bank of South Africa

Respondent

Tsepo Paulos Botsane N.O

Respondent

Tsepo Benedict Sebutsoe N.O

Respondent

Registrar of Deeds, Bloemfontein

Respondent

Master of the High Court, Bloemfontein

Respondent

Rural Development and Land Reform Department, Bloemfontein

Respondent

Procedural Posture

Review Application / Final Judgment After Opposed Application

Legal Issues

  1. 1 Whether the transfer and registration of the farm Guarriekop 330 to the Doringboom Trust was valid and lawful.
  2. 2 Whether the trustees of the TBS Farming Trust were duly authorised to effect transfer of the farm.
  3. 3 Whether the resolutions authorising the sale and transfer of the farm were validly passed.

Ratio Decidendi

The court found that the transfer and registration of the farm Guarriekop 330 to the Doringboom Trust was invalid due to a fatal defect in the real agreement. The resolutions authorising the sale and transfer were not validly passed, as Mr Stone's resignation as trustee was not effective at the relevant time and a quorum was not present at the meeting. The power of attorney to transfer was unauthorised and incorrectly recorded the fifth respondent as sole trustee, which was not the case. These defects were not merely administrative and could not be rectified under section 4(1)(b) of the Deeds Registries Act. As a result, the transfer and registration of ownership, as well as the mortgage...

Court Disposition

Application granted. Transfer and registration of the farm to the Doringboom Trust set aside. Mortgage bond cancelled. Costs awarded against first, second, and third respondents.

Orders

  • The transfer to and registration of ownership in the name of the Trustees of Doringboom Trust, IT 1797/2004 of the farm Guarriekop 330, Senekal, Free State Province, on 17 January 2014, is cancelled and set aside.
  • The first and second respondents must sign all necessary documentation to transfer and reregister ownership of the farm to the Trustees of TBS Farming Trust, IT 1156/2005, within 7 days of a request by or on behalf of the applicant, which request may only be made after 14 days of this order.