South Africa Case Law

N'Wandlamharhi Communal Property Association and Another v Westcott and Others (401/2021)

N'Wandlamharhi Communal Property Association and Another v Westcott and Others (401/2021) [2022] ZASCA 129 (3 October 2022)

Court

Supreme Court of Appeal

Case number

401/2021

Judges

Van der Merwe, Mothle, Musi, Kgoele, Weiner

The Supreme Court of Appeal held that the shareholders agreements did not create servitudes binding successors in title, so the respondents’ access and occupation rights ended on sale.

• Servitude Registration
• Personal Rights Vs Real Rights
• Doctrine Of Notice
• Shareholders Agreement
• Subdivision Of Agricultural Land Act
• Servitude-registration

Goosen and Another v Wiehahn and Others (761/2018)

Goosen and Another v Wiehahn and Others (761/2018) [2019] ZASCA 137; 2020 (2) SA 341 (SCA) (1 October 2019)

Court

Supreme Court of Appeal

Case number

761/2018

Judges

Ponnan, Cachalia, Zondi, Dambuza, Nicholls

The Supreme Court of Appeal held that the right conferred by clause 2.3 of the will was a personal right regulated by testamentary disposition, not a pactum de contrahendo. The court found that the Alienation of Land Act's formalities did not apply to such testamentary rights, and the executrix was bound to offer the farm to the first appellant in accordance with the will. The sale agreement was valid, and the application to declare it null and void was misconceived. The court emphasized that the interpretation of the will must give effect to the testator's wishes and that the right to purcha…

Source excerpt

• Interpretation Of Wills
• Testamentary Conditions
• Alienation Of Land Act
• Option To Purchase
• Succession
• Personal Rights Vs Real Rights

Fischer v Ubomi Ushishi Trading and Others (1085/2017)

Fischer v Ubomi Ushishi Trading and Others (1085/2017) [2018] ZASCA 154; 2019 (2) SA 117 (SCA) (19 November 2018)

Court

Supreme Court of Appeal

Case number

1085/2017

Judges

Shongwe, Cachalia, Saldulker, Schippers, Mothle

The Supreme Court of Appeal held that, on a proper construction of section 16 of the Deeds Registries Act, derivative acquisition of ownership in land requires registration. The settlement agreement incorporated into the divorce order gave Mrs Haynes a personal right to enforce registration of Mr Haynes’ undivided half share in the property, but did not by itself vest ownership in her. The court rejected the reasoning in Corporate Liquidators, finding that the Divorce Act does not regulate the transfer of real rights in land and that registration is required for ownership to pass. Co-ownershi…

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• Deeds Registries Act
• Transfer Of Immovable Property
• Community Of Property
• Divorce Settlement
• Personal Rights Vs Real Rights

Jessop v Industrial Development Corporation of South Africa and Another (42379/2012)

Jessop v Industrial Development Corporation of South Africa and Another (42379/2012) [2015] ZAGPJHC 208 (16 September 2015)

Court

South Gauteng High Court, Johannesburg

Case number

42379/2012

Judge

C G Lamont

The court dismissed an application for damages arising from a failed property transfer, holding IDC committed no delict in registering the bond or enforcing its security.

• Mortgage Bond Registration
• Personal Rights Vs Real Rights
• Sale In Execution
• Damages In Lieu Of Delivery
• Mortgage-bond-registration
• Personal-rights-v-real-rights

Oreste v Devi and Another (17136/2007)

Oreste v Devi and Another (17136/2007) [2014] ZAGPPHC 189 (4 April 2014)

Court

North Gauteng High Court, Pretoria

Case number

17136/2007

Judge

Wepener

The court held that the defendant's right to claim transfer of the immovable property under section 48(2) of the Abolition of Racially Based Land Measures Act is a personal right, not a real right. Such a right is subject to prescription under section 11(d) of the Prescription Act, which prescribes after three years. The defendant failed to effect transfer within the statutory period and did not apply for extension. The authorities of the Supreme Court of Appeal and Constitutional Court establish that claims for transfer of immovable property are debts subject to prescription. The court decli…

Source excerpt

• Abolition Of Racially Based Land Measures Act
• Prescription Act
• Transfer Of Immovable Property
• Personal Rights Vs Real Rights

Oreste v Devi and Another (17136/2007)

Oreste v Devi and Another (17136/2007) [2014] ZAGPJHC 60 (4 April 2014)

Court

South Gauteng High Court, Johannesburg

Case number

17136/2007

Judge

Wepener

The court held that the defendant's right to claim transfer of the immovable property under section 48(2) of the Abolition of Racially Based Land Measures Act is a personal right, not a real right. As such, it is subject to prescription under section 11(d) of the Prescription Act 68 of 1969, which prescribes a three-year period. The defendant failed to effect transfer within the statutory period and did not apply for an extension. The Supreme Court of Appeal and Constitutional Court have authoritatively held that such claims constitute debts subject to prescription. The defendant's reliance o…

Source excerpt

• Prescription Act
• Abolition Of Racially Based Land Measures Act
• Transfer Of Immovable Property
• Personal Rights Vs Real Rights
• Vindication
• Registration Of Transfer

Balduzzi v Rajah (17136/2007)

Balduzzi v Rajah (17136/2007) [2014] ZAGPJHC 209 (4 April 2014)

Court

South Gauteng High Court, Johannesburg

Case number

17136/2007

Judge

Wepener

The court held that the defendant's right to claim transfer of the immovable property under section 48(2) of the Abolition of Racially Based Land Measures Act is a personal right, not a real right. As such, it is subject to prescription under section 11(d) of the Prescription Act 68 of 1969, which prescribes after three years. The defendant failed to effect transfer within the period prescribed by section 48(3)-(10) of the Abolition Act and did not apply to court for an extension. The authorities of the Supreme Court of Appeal and Constitutional Court confirm that such claims are debts subjec…

Source excerpt

• Prescription Act
• Transfer Of Immovable Property
• Abolition Of Racially Based Land Measures Act
• Personal Rights Vs Real Rights