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Mistaken transfer - III

26 June 2014

Mr. Gijsbers is correct in pointing out that there was a dispute in the matter. Mr. Vise’s situation obviously differed substantially from the facts in this case. Our firm acted for Schmidt Bou in the matter. The liquidators were not prepared to transfer the land back to Schmidt Bou and the Court was therefor approached to resolve the matter.

We are not certain why Mr. Ngoasheng refers to the transfer that resulted from the Court’s order as invalid. It would be interesting to know why he is of the opinion that it is invalid. One must keep in mind that a section 33 of Act 47/1937(DRA) “transfer” is not necessarily a “transfer” in the sense that a transfer from A to B as a result of a sale is a transfer. Transfer, as put by Judge King in Ex Parte Menzies Et Uxor 1993 (3) SA 799 (C) p 819 is:

“In my view, ‘transfer’ in its original meaning implies no less than the actual traditio from one person to another person of ownership or other real rights in property which the latter did not previously have......”

It often is merely a way of providing title to the real owner, which is what happened here. The Court ruled that, on the basis of the abstract mode of of acquisition, ownership in the remainder of erf 3117 never passed to Innova. Similarly, every “transfer” in terms of section 31 of DRA is exactly that – merely providing a title to the real owner. Nothing is ever transferred by a section 31 of DRA transfer as ownership in the property involved had already vested. Passing a “transfer” in the name of Schmidt Bou was therefore a means of providing Schmidt Bou with a title and the Registrar could thus discharge the duty imposed on him by the Court. I fail to see why the deed would be invalid.

Arriving at a decision to do a “transfer” was simple:

  1. Section 4(1)(b) was not available as a remedy; 

  2. Section 3(1)(v) could not be applied as the section is about making endorsements on deeds or documents in connection with the objects of a law, which clearly was not the case here;

  3. Reviving the title was also not a possibility for two reasons:

    1. The title was (and is) still valid; and

    2. Trying to revive the title would mean that Schmidt Bou owned a portion of an erf in a township under the township title, a direct contravention of section 43(5) of DRA, as Schmidt Bou’s title is a township title.

A “transfer” was therefore the only option.

Dudley Lee
19th June 2014

See further: Bester and Others vs Schmidt Bou, Mistaken transfer and Mistaken transfer - II

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