South Africa Case Law

Land and Agricultural Bank of South Africa v The Minister of Rural Development and Land Reform and Others (1174/2021)

Land and Agricultural Bank of South Africa v The Minister of Rural Development and Land Reform and Others (1174/2021) [2022] ZASCA 133; 2023 (1) SACR 1 (SCA) (13 October 2022)

Court

Supreme Court of Appeal

Case number

1174/2021

Judges

Ponnan, Van der Merwe, Mabindla-Boqwana, Molefe, Siwendu

The Supreme Court of Appeal held that the Minister did not have a legally cognisable 'interest' in the property as defined under POCA, as the grant paid did not confer a right to the property. Even if such an interest existed, the Land Bank's real right under its mortgage bond, secured by judgment and attachment, must prevail over any personal claim by the Minister. The ranking of competing claims for exclusion from forfeiture is determined by common law principles, which favour real and prior rights. The court found that the full court erred in treating both parties' interests as equal and i…

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• Prevention Of Organised Crime Act
• Forfeiture Of Property
• Ranking Of Real Rights
• Exclusion Of Interest
• Mortgage Bond Priority
• Civil Recovery

Minister of Rural Development and Land Reform v Land Agriculture Bank of South Africa and Others (90/2020)

Minister of Rural Development and Land Reform v Land Agriculture Bank of South Africa and Others (90/2020) [2021] ZAECGHC 61 (6 July 2021)

Court

Eastern Cape High Court, Grahamstown

Case number

90/2020

Judges

Rugunanan, Beshe, Krüger

The High Court held that proceeds from forfeited property must be apportioned between the Minister and the Bank according to their capital losses.

• Civil Forfeiture
• Mortgage Bond Priority
• Arbitrary Deprivation
• Proceeds Apportionment
• Land Redistribution
• Victim Status Under Poca

Britz v Sequeira (5071/2018)

Britz v Sequeira (5071/2018) [2020] ZAFSHC 81; [2020] 2 All SA 415 (FB) (20 March 2020)

Court

Free State High Court, Bloemfontein

Case number

5071/2018

Judge

Daffue

Although the general rule is that every co-owner is entitled to termination of joint ownership, the court found that the complex and intertwined financial relationships between the parties, including unresolved claims in the Pretoria High Court regarding close corporation interests and loan accounts, would render immediate termination unjust and inequitable. The respondent would be prejudiced if the property were sold before his claims are resolved, as he lacks the financial means to purchase the applicant's share or bid at auction. The alleged lifelong right of habitatio was dismissed as leg…

Source excerpt

• Termination Of Joint Ownership
• Actio Communi Dividendo
• Stay Of Proceedings
• Exclusive Use Areas
• Mortgage Bond Priority

Land and Agricultural Bank of South Africa and Others v CPAD Farm Holdings and Others (2667/2017)

Land and Agricultural Bank of South Africa and Others v CPAD Farm Holdings and Others (2667/2017) [2020] ZALCPE 9 (11 February 2020)

Court

Labour Court Port Elizabeth

Case number

2667/2017

Judge

Goosen

The High Court varied a POCA forfeiture order to recognise the Land Bank’s bond rights and the Department’s grant-funded interest in forfeited property.

• Forfeiture Order Variation
• Prevention Of Organised Crime Act
• Mortgage Bond Priority
• Exclusion Of Interests
• Land Reform Grants
• Curator Bonis Powers

Land and Agriculture Bank of South Africa and Others v CPAD Farm Holdings and Others (2667/2017)

Land and Agriculture Bank of South Africa and Others v CPAD Farm Holdings and Others (2667/2017) [2020] ZAECPEHC 30; 2020 (2) SACR 300 (ECP) (11 February 2020)

Court

Eastern Cape High Court, Port Elizabeth

Case number

2667/2017

Judge

Goosen

The court held that both the Land Bank and the Department of Rural Development and Land Reform were victims of fraud relating to the acquisition of the property and had established quantifiable interests in the property. The forfeiture order granted previously failed to recognise the Land Bank's rights as mortgage holder and judgment creditor, and the Department's interest as grantor of LRAD funds. The court found that the forfeiture process under POCA is akin to execution and does not override prior judicial attachments or exclude established interests without due process. The original forfe…

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• Forfeiture Order Variation
• Prevention Of Organised Crime Act
• Exclusion Of Interests
• Mortgage Bond Priority
• State Victim Status
• Distribution Of Forfeited Assets

Routledge Modise Inc v Louw N.O. and Others, In Re; Louw N.O. and Others v Van Der Merwe N.o. and Others (4793/2012)

Routledge Modise Inc v Louw N.O. and Others, In Re; Louw N.O. and Others v Van Der Merwe N.o. and Others (4793/2012) [2013] ZAFSHC 217 (19 November 2013)

Court

Free State High Court, Bloemfontein

Case number

4793/2012

Judge

J.P. Daffue

The court granted Routledge Modise Inc leave to intervene in a dispute over the validity and ranking of a waiver affecting bond priority.

• Intervention Of Parties
• Direct And Substantial Interest
• Mortgage Bond Priority
• Waiver Of Preference
• Prescription
• Ratification

Nedbank Ltd v South African Securitization Programme (Pty) Ltd and Others (2017/2011)

Nedbank Ltd v South African Securitization Programme (Pty) Ltd and Others (2017/2011) [2013] ZAFSHC 128 (11 July 2013)

Court

Free State High Court, Bloemfontein

Case number

2017/2011

Judge

Mhlambi, AJ

The court dismissed Nedbank’s application to compel upliftment of an interdict over property sold in execution, finding Nedbank lacked locus standi for that relief.

• Locus Standi
• Mortgage Bond Priority
• Execution Of Judgment
• Interdict Removal
• Distribution Of Sale Proceeds
• Locus-standi

Standard Bank of South Africa Limited v D Florentino Construction CC and Others (1416/2007)

Standard Bank of South Africa Limited v D Florentino Construction CC and Others (1416/2007) [2008] ZAWCHC 46; 2008 (5) SA 534 (C) (18 February 2008)

Court

Western Cape High Court, Cape Town

Case number

1416/2007

Judge

D M Davis

A bank asked the High Court to make a builder with a retention lien hand over property to an executor, subject to preserving the builder’s security rights.

• Builder S Lien
• Mortgage Bond Priority
• Right Of Retention
• Common Law Lien
• Security For Debt
• Builders-lien

Nedcor Bank Limited v Machete and Others (34749/20065)

Nedcor Bank Limited v Machete and Others (34749/20065) [2007] ZAGPHC 253 (2 November 2007)

Court

High Courts - Gauteng

Case number

34749/20065

Judge

W L Seriti

The High Court set aside a sale in execution after finding that the warrant was not served on the bondholder or the registrar of deeds as required by Rule 43(2).

• Sale In Execution
• Locus Standi
• Mortgage Bond Priority
• Service Of Process
• Magistrates Court Rules
• Sale-in-execution

City of Johannesburg v Kaplan NO and Another (111/05)

City of Johannesburg v Kaplan NO and Another (111/05) [2006] ZASCA 39; 2006 (5) SA 10 (SCA); 68 SATC 286 (29 March 2006)

Court

Supreme Court of Appeal

Case number

111/05

Judges

Harms, Zulman, Streicher, Heher, Cachalia

The Supreme Court of Appeal held that section 118(3) of the Municipal Systems Act creates a statutory charge on property for municipal debts, granting the municipality preference over mortgage bonds. However, when the debtor is subject to liquidation or insolvency, section 118(2) makes the operation of section 118 subject to section 89 of the Insolvency Act. Section 89(4) limits the preference for municipal debts that qualify as 'taxes' under section 89(5) to a two-year period prior to liquidation and from that date until transfer. Debts not qualifying as 'taxes' are not subject to this limit…

Source excerpt

• Municipal Debt Preference
• Insolvency Act Section 89
• Municipal Systems Act Section 118
• Mortgage Bond Priority
• Liquidation Distribution
• Secured Claims