Symons en Ander v Crown View Crossing (Edms) Bpk en Ander (32673/2008) [2009] ZAGPPHC 257 (25 June 2009)

Symons en Ander v Crown View Crossing (Edms) Bpk en Ander (32673/2008) [2009] ZAGPPHC 257 (25 June 2009)

The court held that the applicants' claim for registration of a second mortgage bond arose and became immediately enforceable upon registration of the property in the first respondent's name on 20 May 2004. The obligation to register the second bond was not accessory to the five-year repayment term of the loan agreement, but was immediately due upon registration. The failure of the second respondent to grant consent for registration did not constitute a legal bar that interrupted prescription. The applicants had a complete cause of action from 20 May 2004 and failed to enforce their rights within the three-year prescription period provided by the Prescription Act. Consequently, the claim...

Citation
[2009] ZAGPPHC 257
Parties
Applicant: Theunis Gerrit Johannes Symons; Applicant: Anna Maria Symons; Respondent: Crown View Crossing (Edms) Bpk; Respondent: ABSA Bank Bpk; Respondent: Registrateur van Aktes, Pretoria
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
25 June 2009
Case Number
32673/2008
Procedural Posture
Civil Application / First Instance
Outcome
Application dismissed with costs.
Judges
S Potterill
Legal Topics
Mortgage Registration, Prescription Act, Specific Performance, Contractual Obligation
Land and Property Civil Procedure Mortgage Registration Prescription Act Specific Performance Contractual Obligation

Case Brief

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Parties

Theunis Gerrit Johannes Symons

Applicant

Anna Maria Symons

Applicant

Crown View Crossing (Edms) Bpk

Respondent

ABSA Bank Bpk

Respondent

Registrateur van Aktes, Pretoria

Respondent

Procedural Posture

Civil Application / First Instance

Legal Issues

  1. 1 Whether the applicants' claim for registration of a second mortgage bond has prescribed under the Prescription Act.
  2. 2 Whether the failure of the second respondent to grant consent for registration of the second bond constitutes a legal bar that interrupts prescription.
  3. 3 Whether the obligation to register the second bond is accessory to the repayment term of the loan agreement.

Ratio Decidendi

The court held that the applicants' claim for registration of a second mortgage bond arose and became immediately enforceable upon registration of the property in the first respondent's name on 20 May 2004. The obligation to register the second bond was not accessory to the five-year repayment term of the loan agreement, but was immediately due upon registration. The failure of the second respondent to grant consent for registration did not constitute a legal bar that interrupted prescription. The applicants had a complete cause of action from 20 May 2004 and failed to enforce their rights within the three-year prescription period provided by the Prescription Act. Consequently, the claim...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.