Van Heerden NNO v De Wet NNO en Andere (56054/08) [2009] ZAGPPHC 20 (3 April 2009)

Van Heerden NNO v De Wet NNO en Andere (56054/08) [2009] ZAGPPHC 20 (3 April 2009)

The court found that the Bezuidenhout Trust, established in 1989, lawfully acquired the property in 1990, and the subsequent transfer and mortgage bond registration in 2008 occurred without the knowledge or consent of the trustees. The second Bezuidenhout Trust, established in 1995, could not have acquired the property, and the evidence overwhelmingly supported the applicants' case. ABSA Bank, although claiming limited opposition, failed to communicate its position clearly and caused the applicants to incur costs in preparing for an opposed application. The court exercised its discretion to order ABSA to pay the costs caused by its opposition, jointly and severally with the first and...

Citation
[2009] ZAGPPHC 20
Parties
Applicant: Nola van Heerden N.O; Applicant: Henning Bezuidenhout N.O; Applicant: Lara Bezuidenhout N.O; Applicant: Hermanus Lintvelt Klopper N.O; Respondent: Christiaan Frederik De Wet N.O; Respondent: Jeffrey Siphiwe Hlatshwayo N.O; Respondent: Martha Maria Diener; Respondent: Kevin Garth Evans; Respondent: Petrus Stefanus Bekker; Respondent: Erasmus Roets Prokureurs; Respondent: ABSA Bank Beperk; Respondent: Die Registrateur van Aktes, Pretoria; Respondent: Die Meester van die Hooggeregshof
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
3 April 2009
Case Number
56054/08
Procedural Posture
Urgent Application / Costs and Final Orders Following Opposed Motion
Outcome
Application granted. The Bezuidenhout Trust declared owner of the property. The 2008 transfer and mortgage bond registration declared null and void. ABSA Bank ordered to pay costs caused by its opposition, jointly and severally with first and second respondents.
Judges
A.A Louw
Legal Topics
Trust Property Ownership, Transfer of Land, Mortgage Bond Registration, Costs Award, Opposed Motion Procedure
Land and Property Civil Procedure Trust Property Ownership Transfer of Land Mortgage Bond Registration Costs Award Opposed Motion Procedure

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Parties

Nola van Heerden N.O

Applicant

Henning Bezuidenhout N.O

Applicant

Lara Bezuidenhout N.O

Applicant

Hermanus Lintvelt Klopper N.O

Applicant

Christiaan Frederik De Wet N.O

Respondent

Jeffrey Siphiwe Hlatshwayo N.O

Respondent

Martha Maria Diener

Respondent

Kevin Garth Evans

Respondent

Petrus Stefanus Bekker

Respondent

Erasmus Roets Prokureurs

Respondent

ABSA Bank Beperk

Respondent

Die Registrateur van Aktes, Pretoria

Respondent

Die Meester van die Hooggeregshof

Respondent

Procedural Posture

Urgent Application / Costs and Final Orders Following Opposed Motion

Legal Issues

  1. 1 Whether the Bezuidenhout Trust is the lawful owner of the property in question.
  2. 2 Whether the 2008 transfer and mortgage bond registration are null and void.
  3. 3 Who should bear the costs of the opposed application, particularly ABSA Bank.

Ratio Decidendi

The court found that the Bezuidenhout Trust, established in 1989, lawfully acquired the property in 1990, and the subsequent transfer and mortgage bond registration in 2008 occurred without the knowledge or consent of the trustees. The second Bezuidenhout Trust, established in 1995, could not have acquired the property, and the evidence overwhelmingly supported the applicants' case. ABSA Bank, although claiming limited opposition, failed to communicate its position clearly and caused the applicants to incur costs in preparing for an opposed application. The court exercised its discretion to order ABSA to pay the costs caused by its opposition, jointly and severally with the first and...

Court Disposition

Application granted. The Bezuidenhout Trust declared owner of the property. The 2008 transfer and mortgage bond registration declared null and void. ABSA Bank ordered to pay costs caused by its opposition, jointly and severally with first and second respondents.

Orders

  • Order in terms of prayers 1 (including subparagraphs 1.1–1.8.3) and 2 (including paragraphs 2.1–2.5) of the notice of motion.
  • The seventh respondent (ABSA Bank Beperk) is ordered to pay the costs caused by its opposition to the application.