A Brief Set of Facts
This case was instituted before the High Court of South Africa in September 2014. The first claimant was the duly registered owner of a residential property located in River East Township Division IR Gauteng. Through several formal and informal agreements, the first claimant agreed and transferred the title of the immovable property to the second respondent, and the name in the register was changed to the second respondent. With the title to the property, the second respondent secured a loan from the third respondent using the property as security. The claimants sought a declaration that the agreements between the first claimant and the second respondent be declared null and void and the property to be restituted.
The applicants were a family residing in the immovable property together with their and were paying R2900 monthly payments to the bank for a mortgage as at 2009. Later that year, they applied for a second loan from the bank that was refused when they stumbled upon a newspaper advert of a company named Brusson Finance Limited. They visited the company to sign the documents and were informed that they would get the loan whose terms were that their property would be used as security. The loan was to be paid in three monthly installments. One day, the applicants were shocked when they received a notice of attachment and informed that by a writ of execution issued in the office of the court registrar, the Sherriff would attach and execute the immovable property. They moved to the high court to seek an order for the setting aside the execution writ and a declaration that all the agreements were invalid since they were not aware of what they were doing.
Decision of the Court
The court analyzed the facts of the case and issued a judgment after an in-depth analysis of South African property law. It issued the orders sought and set aside the agreement between the applicants and the second respondent on grounds that they were unlawful, invalid and had no legal effect. The decision to set aside the orders was driven by the fact that the plaintiffs had no intention to transfer the property and the second respondent fabricated a scheme to rip off the plaintiffs of property.
Analysis of the case on basis of transfer of ownership in the Roman Dutch System
The Roman-Dutch law is a scholar-driven, uncodified, judicial developed law that is purely based on Netherlands law during the 17th and 18th centuries which represents the European civil law. The Roman-Dutch law heavily influenced the South African legal system, and its influence is seen mostly in private law especially when it comes to ownership of property (Williams 56). South Africa follows the common law in criminal law, company law, and civil procedure while contract law, Tort law, family law heavily borrow from Roman Dutch Law.
In the present case, the claimants’ argument was that they never intended to transfer the property to the second respondent and the transfer was effected through fraudulent misrepresentation and manipulation by the second and the third respondent. Under the Roman-Dutch law which governs property law in South Africa, in the transfer of property, the owner must transfer willingly, and intent is the integral element in such a transaction (Williams 60).
Based on the facts of the case, it is hard to reconcile whether the claimants wanted to transfer the property. The applicants conceded to the claim that there was an agreement to transfer the property to Kabini, yet there was no change of the name in the registry or the documents. The oral submission before the court did not touch on the issue because no party was interested in it. Under the Roman-Dutch system, in a transfer of ownership, the party to which the property is being transferred must apply for the change of the document name as well as the change in ownership in the registry files. Failure to change the names would be suicidal to the case if the dispute ends up in court since there will be no evidence of such agreement.
In all property transfers, the Roman-Dutch law states that an agreement must state the market value of the property as valued by a certified property valuer. In the present case, there was value stated for the property and hence, it is not clear how the two parties derived the value of the house without proper valuation required by law. Further, payment of government taxes and property rates is one of the duties of all property owners and the documents presented before the court are silent on the issue. Under the Roman-Dutch system, payment of government rates was mandatory since the times of the ancient Roman Empire. The system has never changed though largely moderated in South Africa. Registered property owners are required to pay annual rates and hence it would have prudent for the court to ask for a clarification about was paying for the property rates.
The uncertainty surrounding the agreements in question raises the suspicion about the validity of the agreements between Kabini and Brusson. The presented evidence suggests that the claimant’s intention was to use their immovable property as security to obtain the loan. The facts surrounding the agreements do not reveal any intent to transfer property ownership and hence it fails in satisfying the requirements of the transfer of property under the Roman-Dutch system.
Conclusion
This case reveals a clear scheme by Kabini and Brusson to defraud the claimants of their property. However, the claimant’s failure to reveal critical information regarding the agreements is suspicious and leaves many unanswered questions. Further, it poses a question whether they have the locus of setting aside a decision issued by a court in a suit where they were not party to. However, under the Roman-Dutch system, in all property ownership transfers, the owner has an overriding interest, and if any court order is issued in his absence, he/she has the right to apply for the setting aside of such order since it affects his property rights. In my opinion, the decision of the court that the claimants had a substantial and direct interest in any order relating to the execution of immovable property and any order issued against the property without giving the owners a hearing was null and void was a sound one. The order of rescission requested by the claimants was justified and within the legal tenets of the Roman-Dutch system. This protectionism approach adopted by the legal institutions is necessary to curb increasing fraud related to property transactions.
Works cited
Williams, James. "Roman-Dutch Law". The Yale Law Journal 19.3 (1910): 156. Web.
