Melelwe v Songca and Others [2024] ZAGPJHC 42
The applicant (M) applied to court for an order: 1) setting aside a deed of sale entered into by the third respondent (B) as seller and the first and second respondents (S and L) of a fixed property in Kagiso, Gauteng, 2) ordering the Registrar of Deeds to cancel the transfer of the property, 3) ordering B to sign all documents to effect transfer of the property to him, and 4) ordering the Master to pend the finalisation of a deceased estate until transfer to him has been effected. B is the executor in the deceased estate of her late father (OJ). M bought the property in question from OJ on a written deed of sale in 1998, while it was a vacant stand. M then built a dwelling on the land and stayed there with his family. M could not obtain transfer of the property before all rates and taxes were not paid, a responsibility he undertook in the deed of sale. OJ passed away in 2006, but B was only appointed as executor by the Master (5th respondent) in January 2014. M stated in his affidavit that OJ’s family failed to assist him when he contacted them to start the process to arrange the transfer. In September 2017 B sold the property under deed of sale to S and L, and the Registrar of Deeds (4th respondent) effected the transfer on 27 November 2017. Sixth respondent is the guarantor of a mortgage which was registered in favour of Standard Bank by S and L in order to fund the purchase. M only became aware of the sale to S and L when attorneys served him with an order to vacate the property.
The court (Salmon AJ) dealt with the law of property and the maxim “no one can transfer more rights to another than he himself has” and ruled that B had no right to sell the property as it did not form part of OJ’s deceased estate. The court granted the application with costs, except that the third prayer was not granted as B could not effect transfer to M until all rates and taxes arrears had been paid. M was given permission to approach the court on the same papers once that had been done for such order.