Tsibulane and Another v Ngxolela and Others (20/2014) [2015] ZAECPEHC 60 (14 April 2015)

Tsibulane and Another v Ngxolela and Others (20/2014) [2015] ZAECPEHC 60 (14 April 2015)

The court found that the Master’s appointment of Zixashe was invalid because the magistrate had already appointed Mpanda as estate representative, and the Master lacked jurisdiction under Regulation 4(1) of R200 of 1987. The applicants only became aware of the factual basis for invalidity upon receipt of the Master’s report, making their review application timely under PAJA. The respondents’ attempt to raise prescription in heads of argument was rejected as impermissible. The sale of the property by Zixashe to the respondents was declared void because it was based on an invalid appointment. The prior sale to the applicants was declared valid and enforceable. The court ordered cancellation...

Citation
[2015] ZAECPEHC 60
Parties
Applicant: Johannes Teboho Tsibulane; Applicant: Nomafene Louisa Tsibulane; Respondent: Nkosinathi Workman Ngxolela; Respondent: Phakama Ngxolela; Respondent: Registrar of Deeds, Cape Town; Respondent: Llewellyn Francois Sharp, N.O.; Respondent: Master of Eastern Cape High Court, Port Elizabeth; Respondent: Standard Bank of South Africa Limited
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
14 April 2015
Case Number
20/2014
Procedural Posture
Review Application / Final Judgment After Opposed Application and Amendment of Notice of Motion
Outcome
The application was granted. The Master’s appointment of Zixashe was reviewed and set aside. The sale to the respondents was declared void. The prior sale to the applicants was declared valid and enforceable. The Registrar of Deeds was directed to cancel the transfer to the respondents. Costs were awarded against...
Judges
Majiki
Legal Topics
Review of Administrative Action, Invalid Appointment, Alienation of Land Act, Transfer of Property, Prescription, Real Vs Personal Rights
Administrative Law Land and Property Civil Procedure Review of Administrative Action Invalid Appointment Alienation of Land Act Transfer of Property Prescription +1 more

Case Brief

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Parties

Johannes Teboho Tsibulane

Applicant

Nomafene Louisa Tsibulane

Applicant

Nkosinathi Workman Ngxolela

Respondent

Phakama Ngxolela

Respondent

Registrar of Deeds, Cape Town

Respondent

Llewellyn Francois Sharp, N.O.

Respondent

Master of Eastern Cape High Court, Port Elizabeth

Respondent

Standard Bank of South Africa Limited

Respondent

Procedural Posture

Review Application / Final Judgment After Opposed Application and Amendment of Notice of Motion

Legal Issues

  1. 1 Whether the appointment of Rox George Zixashe by the Master was valid in light of a prior appointment by the magistrate.
  2. 2 Whether the subsequent sale of property by Zixashe to the respondents is valid.
  3. 3 Whether the applicants' review application was time-barred under PAJA.

Ratio Decidendi

The court found that the Master’s appointment of Zixashe was invalid because the magistrate had already appointed Mpanda as estate representative, and the Master lacked jurisdiction under Regulation 4(1) of R200 of 1987. The applicants only became aware of the factual basis for invalidity upon receipt of the Master’s report, making their review application timely under PAJA. The respondents’ attempt to raise prescription in heads of argument was rejected as impermissible. The sale of the property by Zixashe to the respondents was declared void because it was based on an invalid appointment. The prior sale to the applicants was declared valid and enforceable. The court ordered cancellation...

Court Disposition

The application was granted. The Master’s appointment of Zixashe was reviewed and set aside. The sale to the respondents was declared void. The prior sale to the applicants was declared valid and enforceable. The Registrar of Deeds was directed to cancel the transfer to the respondents. Costs were awarded against...

Orders

  • The appointment of Rox George Zixashe dated 17 January 2007 as representative of the Master to take control of the assets of the estate of the late Kukge Zamba is reviewed and set aside.
  • The deed of sale entered into between Rox George Zixashe (as Master’s representative) and the first and second respondents on 4 October 2007 is declared void.