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South Africa Case Law

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Land And Property [2007] ZASCA 8

Dream Supreme Properties 11CC v Nedcor Bank Ltd. and Others (490/05)

Dream Supreme Properties 11CC v Nedcor Bank Ltd. and Others (490/05) [2007] ZASCA 8; 2007 (4) SA 380 (SCA) (13 March 2007)

Court
Supreme Court of Appeal
Case number
490/05
Judges
Streicher, Farlam, Mthiyane, Mlambo, Malan

The majority held that the doctrine of notice does not apply to the attachment of property by a judgment creditor, even where the creditor has knowledge of a prior personal right arising from a sale. The judgment creditor, acting under statutory authority, is entitled to attach and sell the property in execution, and such actions cannot be regarded as a species of fraud. Extending the doctrine of notice to such situations would undermine the effectiveness of sales in execution and create uncertainty for creditors and purchasers. The court found that the agreement of sale between the appellant…

Source excerpt

  • Doctrine Of Notice
  • Attachment Of Property
  • Sale In Execution
  • Priority Of Personal Rights
  • Real Rights Vs Personal Rights
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Land And Property [2001] ZASCA 137

Wahloo Sand CC and Others v Trustees of the Hambly Parker Trust and Others (85/2000)

Wahloo Sand CC and Others v Trustees of the Hambly Parker Trust and Others (85/2000) [2001] ZASCA 137; 2002 (2) SA 776 (SCA) (29 November 2001)

Court
Supreme Court of Appeal
Case number
85/2000
Judges
Vivier, Howie, Olivier, Cloete, Brand

The Supreme Court of Appeal held that the doctrine of notice, which protects a bona fide purchaser for value without notice of an unregistered servitude, applies only after transfer of ownership. Prior to transfer, both the purchaser and the holder of the servitude agreement have competing personal rights. The maxim qui prior est tempore potior est iure governs the preference between such rights, giving priority to the earlier right unless special circumstances justify otherwise. In this case, the appellants' right to registration of the servitude arose before the respondent's right to clean…

Source excerpt

  • Registration Of Servitude
  • Specific Performance
  • Priority Of Personal Rights
  • Doctrine Of Notice
  • Qui Prior Est Tempore
  • Interdict
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About this LexChat collection

South Africa decisions are organised by court, judge, legal area and indexed issue so a practitioner can move from a proposition to a citable authority with the surrounding context intact.

Source links and collection timestamps are retained alongside the indexed records.