Valashiya NO v Moroesi and Others (13985/2017) [2019] ZAGPJHC 292 (19 August 2019)

Valashiya NO v Moroesi and Others (13985/2017) [2019] ZAGPJHC 292 (19 August 2019)

The court found that the second respondent, as executor, transferred the property to the first respondent without compiling or submitting a liquidation and distribution account to the Master, and without the Master’s consent. This contravened section 35 of the Administration of Estates Act, rendering the transfer void. The Registrar of Deeds’ actions were not administrative actions subject to review under PAJA, as they were clerical and performed in terms of statutory duties. The first respondent was not the sole heir, and the distribution was not in accordance with the law. The defences of non-joinder and undue delay were rejected, as the executor’s attorney was not a necessary party and...

Citation
[2019] ZAGPJHC 292
Parties
Applicant: Vanessa Valashiya N.O.; Respondent: Sibanda Palesa Moroesi; Respondent: Elliot Seleka Moloto; Respondent: The Registrar of Deeds, Pretoria
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
19 August 2019
Case Number
13985/2017
Procedural Posture
Civil Application / First Instance Judgment
Outcome
Application granted. The transfer of the property is declared void and set aside. The property is to be re-registered in the name of the deceased estate. Costs awarded against the first and second respondents jointly and severally.
Judges
Matojane
Legal Topics
Administration of Estates Act, Sectional Title Transfer, Liquidation and Distribution Account, Void Transfer, Executor Powers
Land and Property Civil Procedure Administration of Estates Act Sectional Title Transfer Liquidation and Distribution Account Void Transfer Executor Powers

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 6 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Vanessa Valashiya N.O.

Applicant

Sibanda Palesa Moroesi

Respondent

Elliot Seleka Moloto

Respondent

The Registrar of Deeds, Pretoria

Respondent

Procedural Posture

Civil Application / First Instance Judgment

Legal Issues

  1. 1 Whether the transfer of property from the deceased estate to the first respondent by the executor was lawful.
  2. 2 Whether the requirements of section 35 of the Administration of Estates Act were complied with prior to the transfer.
  3. 3 Whether the Registrar of Deeds' actions constituted administrative action subject to review under PAJA.

Ratio Decidendi

The court found that the second respondent, as executor, transferred the property to the first respondent without compiling or submitting a liquidation and distribution account to the Master, and without the Master’s consent. This contravened section 35 of the Administration of Estates Act, rendering the transfer void. The Registrar of Deeds’ actions were not administrative actions subject to review under PAJA, as they were clerical and performed in terms of statutory duties. The first respondent was not the sole heir, and the distribution was not in accordance with the law. The defences of non-joinder and undue delay were rejected, as the executor’s attorney was not a necessary party and...

Court Disposition

Application granted. The transfer of the property is declared void and set aside. The property is to be re-registered in the name of the deceased estate. Costs awarded against the first and second respondents jointly and severally.

Orders

  • The transfer of title for the property held by Deed of Transfer ST 75560/2015 is void and set aside.
  • The Registrar of Deeds, Pretoria is authorised and directed to cancel Deed of Transfer No. ST 75560/2015.