Tsukudu N.O. v Tlhopane and Another (2257/2016) [2017] ZAFSHC 33 (9 March 2017)

Tsukudu N.O. v Tlhopane and Another (2257/2016) [2017] ZAFSHC 33 (9 March 2017)

The court found that the first respondent had paid the full purchase price for the property, as evidenced by his possession of the Deed of Grant, which was only to be delivered upon payment. The applicant's hearsay evidence was unreliable and unsupported by other evidence, and thus not admitted. The subsequent sale to the second respondent did not confer a superior right to transfer, as the first respondent's right was established earlier and was not extinguished by prescription. The applicant's repeated offers to transfer upon proof of payment constituted a tacit acknowledgement and renunciation of prescription. The court concluded that the first respondent was entitled to transfer of...

Citation
[2017] ZAFSHC 33
Parties
Applicant: Khantse Anna Tsukudu N.O.; Respondent: Thabo Japhta Tlhopane; Respondent: Matlalinyane Lucia Sefali
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
9 March 2017
Case Number
2257/2016
Procedural Posture
Civil Application / Opposed Application and Counterclaim for Transfer of Immovable Property
Outcome
Application dismissed. Counterclaim for transfer of property upheld.
Judges
Nicholson, AJ
Legal Topics
Transfer of Immovable Property, Prescription Act, Hearsay Evidence, Deed of Sale, Renunciation of Prescription
Land and Property Civil Procedure Transfer of Immovable Property Prescription Act Hearsay Evidence Deed of Sale Renunciation of Prescription

Case Brief

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Parties

Khantse Anna Tsukudu N.O.

Applicant

Thabo Japhta Tlhopane

Respondent

Matlalinyane Lucia Sefali

Respondent

Procedural Posture

Civil Application / Opposed Application and Counterclaim for Transfer of Immovable Property

Legal Issues

  1. 1 Whether the first respondent paid the full purchase price and is entitled to transfer of the property.
  2. 2 Whether the applicant's hearsay evidence regarding non-payment should be admitted.
  3. 3 Whether the first respondent's claim for transfer has prescribed under the Prescription Act.

Ratio Decidendi

The court found that the first respondent had paid the full purchase price for the property, as evidenced by his possession of the Deed of Grant, which was only to be delivered upon payment. The applicant's hearsay evidence was unreliable and unsupported by other evidence, and thus not admitted. The subsequent sale to the second respondent did not confer a superior right to transfer, as the first respondent's right was established earlier and was not extinguished by prescription. The applicant's repeated offers to transfer upon proof of payment constituted a tacit acknowledgement and renunciation of prescription. The court concluded that the first respondent was entitled to transfer of...

Court Disposition

Application dismissed. Counterclaim for transfer of property upheld.

Orders

  • The applicant's application is dismissed.
  • The applicant is ordered to transfer the property (Erf [....] Phuthadithaba-A) to the first respondent within 90 days of this order.