Thamaga v Swalane and Another (33233/2016) [2017] ZAGPPHC 1218 (27 October 2017)

Thamaga v Swalane and Another (33233/2016) [2017] ZAGPPHC 1218 (27 October 2017)

The court found that the applicant and the deceased were married in community of property and that the applicant was the executrix of the deceased's estate. The first respondent admitted that only he and the deceased signed the purchase and sale agreement, with no evidence that the applicant consented or signed any documents. In terms of section 2(1) of the Alienation of Land Act, the sale and transfer of the property required the signatures of both spouses. The absence of the applicant's signature rendered the transaction null and void. The court also noted that the registration of the property occurred after the deceased's death and before the applicant's appointment as executrix,...

Citation
[2017] ZAGPPHC 1218
Parties
Applicant: Seemela Ngwana Thamaga; Respondent: Mashigo Gideon Swalane; Respondent: Registrar of Deeds - Johannesburg
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
27 October 2017
Case Number
33233/2016
Procedural Posture
Civil Application / Final Judgment
Outcome
Application granted. The transfer of the property to the first respondent is declared null and void. The property is to be re-registered in the applicant's name.
Judges
Hughes
Legal Topics
Alienation of Land Act, Fraudulent Transfer, Community of Property, Declaratory Relief
Land and Property Civil Procedure Alienation of Land Act Fraudulent Transfer Community of Property Declaratory Relief

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Parties

Seemela Ngwana Thamaga

Applicant

Mashigo Gideon Swalane

Respondent

Registrar of Deeds - Johannesburg

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the transfer of the property to the first respondent was valid in law.
  2. 2 Whether the applicant, as surviving spouse and executrix, is the rightful owner of the property.
  3. 3 Whether the sale and transfer of the property was fraudulent and void for lack of consent.

Ratio Decidendi

The court found that the applicant and the deceased were married in community of property and that the applicant was the executrix of the deceased's estate. The first respondent admitted that only he and the deceased signed the purchase and sale agreement, with no evidence that the applicant consented or signed any documents. In terms of section 2(1) of the Alienation of Land Act, the sale and transfer of the property required the signatures of both spouses. The absence of the applicant's signature rendered the transaction null and void. The court also noted that the registration of the property occurred after the deceased's death and before the applicant's appointment as executrix,...

Court Disposition

Application granted. The transfer of the property to the first respondent is declared null and void. The property is to be re-registered in the applicant's name.

Orders

  • The applicant is confirmed as the surviving spouse and executrix of the late Seemela Hlabisha Jackson.
  • The applicant is declared the legal owner of the property Erf: [….].