Thabit and Others vs Muladzi and Others (30518/2020; 34521/2020) [2023] ZAGPJHC 251 (17 March 2023)

Thabit and Others vs Muladzi and Others (30518/2020; 34521/2020) [2023] ZAGPJHC 251 (17 March 2023)

The court found that the written agreement between the first applicant and first respondent was not registered in the Deeds Registry as required by section 20 of the Alienation of Land Act. Consequently, the applicants acquired no real rights to the property, only a personal right against the first respondent. The applicants failed to strictly comply with the payment terms and did not take steps to enforce transfer or register the agreement. The subsequent sale and transfer to the second respondent was valid, as the second agreement was properly recorded and complied with statutory requirements. The applicants' reliance on fictional fulfilment was misplaced, as there was no evidence of...

Citation
[2023] ZAGPJHC 251
Parties
Applicant: Thabit Rafiq Themba; Applicant: Thabit Doris Tebogo; Applicant: Thabit Keletso; Respondent: Mulaudzi Khakhu Lucie; Respondent: Dichabe Itumeleng Gift; Respondent: ABSA Bank Ltd; Respondent: Registrar of Deeds Johannesburg
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
17 March 2023
Case Number
30518/2020; 34521/2020
Procedural Posture
Civil Application / Final Judgment on Consolidated Declaratory and Eviction Applications
Outcome
The declaratory application (30518/2020) is dismissed with costs; the eviction application (34521/2020) is granted with costs.
Judges
M A Makume
Legal Topics
Alienation of Land Act, Registration of Transfer, Eviction Under Pie Act, Real Vs Personal Rights, Mortgage Bond Registration
Land and Property Civil Procedure Alienation of Land Act Registration of Transfer Eviction Under Pie Act Real Vs Personal Rights Mortgage Bond Registration

Case Brief

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Parties

Thabit Rafiq Themba

Applicant

Thabit Doris Tebogo

Applicant

Thabit Keletso

Applicant

Mulaudzi Khakhu Lucie

Respondent

Dichabe Itumeleng Gift

Respondent

ABSA Bank Ltd

Respondent

Registrar of Deeds Johannesburg

Respondent

Procedural Posture

Civil Application / Final Judgment on Consolidated Declaratory and Eviction Applications

Legal Issues

  1. 1 Whether the first agreement between the first applicant and first respondent conferred a real right to claim transfer of the property.
  2. 2 Whether the first applicant consented to the sale of the property to the second respondent.
  3. 3 Whether failure to record the agreement in the Deeds Registry under section 20 of the Alienation of Land Act precludes reliance on fictional fulfilment.

Ratio Decidendi

The court found that the written agreement between the first applicant and first respondent was not registered in the Deeds Registry as required by section 20 of the Alienation of Land Act. Consequently, the applicants acquired no real rights to the property, only a personal right against the first respondent. The applicants failed to strictly comply with the payment terms and did not take steps to enforce transfer or register the agreement. The subsequent sale and transfer to the second respondent was valid, as the second agreement was properly recorded and complied with statutory requirements. The applicants' reliance on fictional fulfilment was misplaced, as there was no evidence of...

Court Disposition

The declaratory application (30518/2020) is dismissed with costs; the eviction application (34521/2020) is granted with costs.

Orders

  • The application in Case Number 30518/2020 is dismissed.
  • The first applicant is ordered to pay the respondents' taxed party and party costs.