Van Der Merwe, Ex Parte (2007/31743) [2008] ZAGPHC 88; 2008 (6) SA 451 (W) (8 February 2008)

Van Der Merwe, Ex Parte (2007/31743) [2008] ZAGPHC 88; 2008 (6) SA 451 (W) (8 February 2008)

The court found that the applicant acquired the immovable property prior to sequestration and disclosed it to the trustee. The trustee, after failed negotiations with the municipality regarding arrear rates and taxes, abandoned the property and excluded it from the liquidation and distribution account. The applicant was subsequently rehabilitated, paid all proven creditors and the municipality, and there was no opposition from any interested party. The court held that, in these unique circumstances, where the trustee and creditors have waived any claim to the property and no prejudice exists, the applicant is entitled to a declaratory order revesting the property in his name. Section...

Citation
[2008] ZAGPHC 88
Parties
Applicant: Louis Barend Van Der Merwe
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
8 February 2008
Case Number
2007/31743
Procedural Posture
Ex Parte Application / Final Judgment
Outcome
Order granted in favour of the applicant; applicant declared entitled to the immovable property.
Judges
D S S Moshidi
Legal Topics
Deeds Registries Act, Trustee Abandonment, Rehabilitation of Insolvent, Liquidation and Distribution Account
Land and Property Civil Procedure Deeds Registries Act Trustee Abandonment Rehabilitation of Insolvent Liquidation and Distribution Account

Case Brief

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Parties

Louis Barend Van Der Merwe

Applicant

Procedural Posture

Ex Parte Application / Final Judgment

Legal Issues

  1. 1 Whether the applicant should be revested with immovable property abandoned by the trustee during insolvency.
  2. 2 Whether section 58(1) of the Deeds Registries Act 47 of 1937 permits revesting of such property after rehabilitation.
  3. 3 Whether any prejudice to creditors or the municipality exists if the property is revested in the applicant.

Ratio Decidendi

The court found that the applicant acquired the immovable property prior to sequestration and disclosed it to the trustee. The trustee, after failed negotiations with the municipality regarding arrear rates and taxes, abandoned the property and excluded it from the liquidation and distribution account. The applicant was subsequently rehabilitated, paid all proven creditors and the municipality, and there was no opposition from any interested party. The court held that, in these unique circumstances, where the trustee and creditors have waived any claim to the property and no prejudice exists, the applicant is entitled to a declaratory order revesting the property in his name. Section...

Court Disposition

Order granted in favour of the applicant; applicant declared entitled to the immovable property.

Orders

  • The applicant is declared entitled, by virtue of section 58 of the Deeds Registries Act 47 of 1937, to the immovable property known as Erf 1590 Uvongo Extension 2 Township, Registration Division E.T., Province of Kwa-Zulu Natal, in extent 1403 square meters.