THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case no: 204 / 08

ANDRIES PETRUS DU PLESSIS
Appellant

and

RICHARD PROPHITIUS
First Respondent
ANNA MARGARETHA PROPHITIUS                                        Second Respondent
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Neutral citation:
Du Plessis v Prophitius and Another

(204/08) [2009] ZASCA 79 (3 June 2009)

CORAM:

NAVSA, VAN HEERDEN, PONNAN, SNYDERS JJA and

KROON AJA

HEARD:

22 MAY 2009
DELIVERED:
3 JUNE 2009

SUMMARY: Immovable property – transfer of ownership – validity of.

___________________________________________________________________

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from:
The High Court (Durban) (Nicholson J sitting as court of first
instance).

The appeal is dismissed with costs.
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JUDGMENT
___________________________________________________________________

PONNAN  JA
(NAVSA, VAN HEERDEN, SNYDERS JJA and KROON AJA

concurring):

[1] The real point in issue in this appeal is the ownership of an undeveloped
stand situated on the south coast of KwaZulu-Natal, more fully described as Erf 757,
Palm Beach, Registration Division ET, in extent 1374 square metres (the property).
The facts are not in dispute. A useful starting point is the history of the property.

[2] On 31 March 1989, Robert and Betsy Campbell (the trustees), acquired the
property in their capacity as trustees on behalf of the Campbell Children's Trust (the
trust). On 22 January 2004, a written agreement of purchase and sale was
concluded between the Trust and Whitkel Properties CC (Whitkel)1 in respect of the
property for the sum of R45 000.

[3] On 3 June 2004, the original deed of transfer (TE7413/89) in respect of the
property was furnished by the trust to the conveyancing attorney who had been
appointed in terms of the agreement to effect transfer of the property to Whitkel.

1 Cited as the 3rd Respondent in the court below but who took no part in the proceedings.

During September 2004, a meeting of the trustees resolved to sell the property to
Whitkel for the sum of R45 000 and authorised Robert Campbell (Campbell), in his
capacity as trustee, to sign such documents as may have been necessary for the
registration of the transfer into the name of Whitkel. On 9 September 2004, Campbell
duly signed the power of attorney on behalf of the trust to cause transfer of the
property to pass to Whitkel.

[4] On 28 October 2004, Richard and Anna Margaretha Prophitius (the
respondents), made a written offer to purchase the property for the sum of
R195 000. The offer was accepted by the trustees on behalf of the trust two days
later. As the trust claimed to have lost the original title deed, an application was
made to the Registrar of Deeds, Pietermaritzburg2 in terms of Regulation 68 of the
Regulations made in terms of s 10 of the Deeds Registries Act 47 of 1937 for the
issue of a copy of the title deed. In his affidavit in support of that application,
Campbell stated that the title deed '... has been lost or destroyed and
notwithstanding diligent and extensive search cannot be found. The circumstances
of the loss is unknown to me.' That allegation, to the knowledge of Campbell, was
false.

[5] In compliance with the Regulation, an advertisement was placed in the South
Coast Herald on 3 December 2004 informing all interested persons of the trust's
intention to apply for the issue of a certified copy of the title deed of the property
‘which has been lost or destroyed’. The Registrar of Deeds allowed transfer of the
property to proceed without the original title deed and after due compliance with all of

2 The 5th respondent in the court below who took no part in the proceedings.

the other formalities, the property was transferred to and registered in the names of
the respondents by the Registrar of Deeds on 15 February 2005.

[6] On 15 February 2005 and after the payment of disbursements, the balance of
the purchase price due to the trust (R176 921.81) was transferred into its bank
account by the conveyancing attorney.

[7] In the meanwhile, on 26 December 2004, Whitkel concluded a written
agreement of purchase and sale in respect of the property with the appellant,
Andries du Plessis, for the price of R165 000. On 5 May 2005, there was a
simultaneous transfer of the property from the trust to Whitkel and in turn from
Whitkel to the appellant, and the balance of the purchase price (R39 423.97) was
paid to the trust. During August 2005, concerned at not having received any rates
accounts from the local authority in respect of the property, the respondents caused
enquiries to be made through their attorney with, inter alia, the Registrar of Deeds. In
response the Registrar of Deeds wrote:
'According to the records of this Office [the property] is registered in two different names as owners
and held by two different Deed of Transfers, namely No. T20531/2005 and No. T6506/2005
respectively.
The above registrations have resulted in a double registration.
[The property] cannot be dealt with by any of these two owners until the High Court Order has been
made regarding the rightful owner of the property.'

[8] An exchange of correspondence between the appellant and the respondents
in an endeavour to resolve the matter amicably proved fruitless. Impasse having
been reached, the order alluded to in the letter of the Registrar of Deeds was sought

by the respondents in the Durban High Court. That application was opposed by the
appellant, who moreover launched a counter-application. Each party sought, in
addition to the usual orders relating to costs, an order that:
(a)
they be declared to be the rightful owner of the property;
(b)
the transfer of the property to the other party be set aside;
(c)
the Registrar of Deeds be directed to amend the records in the Deeds
Registry to give effect to the preceding orders.

[9] Before Nicholson J the application succeeded and the counter-application
failed. With the leave of the learned judge, the matter now serves before this Court
on appeal.

[10] In Legator McKenna Inc v Shea (143/2008) [2008] ZASCA 144 (27 November
2008) this court held that ‘the time has come for [it] to add its stamp of approval to
the viewpoint that the abstract theory of transfer applies to immovable property as
well’ (para 21). Brand JA, writing for a unanimous court stated (para 22):
’In accordance with the abstract theory the requirements for the passing of ownership are twofold,
namely delivery – which in the case of immovable property, is effected by registration of transfer in the
Deeds Office – coupled with a so-called real agreement or 'saaklike ooreenkoms'.  The essential
elements of the real agreement are an intention on the part of the transferor to transfer ownership and
the intention of the transferee to become the owner of the property (see eg Air-Kel (Edms) Bpk h/a
Merkel Motors v Bodenstein 1980 (3) SA 917 (A) at 922E-F; Dreyer and Another NO v AXZS
Industries (Pty) Ltd [2006 (5) SA 548 (SCA)] para 17). Broadly stated, the principles applicable to
agreements in general also apply to real agreements. Although the abstract theory does not require a
valid underlying contract, eg sale, ownership will not pass – despite registration of transfer – if there is
a defect in the real agreement (see eg Preller v Jordaan 1956 (1) SA 483 (A) 496; Klerck NO v Van

Zyl and Maritz NNO [1989 (4) SA 263 (SE) at] 274A-B; Silberberg and Schoeman [The Law of
Property 5ed (by Badenhorst, Pienaar and Mostert)] 79-80).

[11] As I understood the argument on behalf of the appellant, it was contended
that the trust as transferor had no intention to transfer ownership to the respondents.
It is so that at the moment of passing of ownership the transferor must have the
intention of transferring ownership (animus transferendi domini), which supplies the
subjective element for the passing of ownership. Instead, so the contention goes, the
trust was indifferent as to whether or not transfer eventuated. I cannot agree. In my
view all the facts point firmly to an intention on the part of the trust to successfully
cause transfer of the property to be registered into the names of the respondents.
Thus, on 10 January 2005, the trust adopted a resolution authorising transfer to the
respondents. To that end, Campbell was mandated to sign all such documents as
may have been necessary. Pursuant to that resolution, during the succeeding week,
Campbell signed an ‘affidavit by transferor’, a ‘certificate in respect of a transfer from
a trust’ and a ‘power of attorney to transfer’ the property to the respondents. Those in
my view were not the hallmarks of indifference, but rather positive acts with a single
ultimate goal in mind – namely the transfer of the property into the names of the
respondents for a price far in excess of that stipulated in the prior sale.

[12] The second string to counsel’s bow was that the trust was motivated by a
fraudulent intent. Assuming that to be so, that does not detract from the trust’s
genuinely held intention to cause transfer of the property to be effected into the
names of the respondents. If fraud was the motive, then the trust’s ultimate goal
would have been the securing of payment of the higher purchase price offered by the
respondents. That, in turn, was dependent upon the successful registration and

transfer of the property into the names of the respondents. Were the property not to
have been transferred, the fraudulent purpose would not have been achieved. It
follows that the trust would in those circumstances have felt obliged to do all that was
required of it with the requisite intention to ensure successful registration. That it
ultimately did.

[13] As to costs. The matter was devoid of any legal or factual complexity. There
was thus no warrant for the employment of the services of two counsel by the
respondents on appeal. Mr Kemp conceded as much. In those circumstances it
would be wholly unjustified to mulct the appellant with those costs. The costs
incurred by the respondents consequent upon the employment of two counsel
accordingly falls to be disallowed.

[14] In the result the appeal is dismissed with costs.

_________________
V M  PONNAN
JUDGE OF APPEAL

APPEARANCES:

For Appellant:

P M van Ryneveld

Instructed by:

Schürmann Joubert Attorneys

Pretoria

Symington and De Kok

Bloemfontein

For Respondent:

K J Kemp SC

S I Humphrey

Instructed by:

H P Steenkamp Attorneys

Ballito

McIntyre & Van Der Post

Bloemfontein
SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form
part of the judgment.

Du Plessis v Prophitius and Another
(204/08) [2009] ZASCA 79 (3 June2009)

Media Statement

Today the Supreme Court of Appeal ('SCA') dismissed an appeal by Andries du Plessis against a judgment
of Nicholson J in the Durban High Court.

Briefly stated, the facts giving rise to the litigation are:  On 22 January 2004, Robert and Betsy Campbell, in
their capacity as trustees on behalf of the Campbell Children's Trust, concluded a written purchase and sale
agreement with Whitkel Properties CC in respect of a vacant stand situated on the south coast of Kwa-Zulu
Natal for the purchase price of R45 000.  Later that year they concluded a purchase and sale agreement
with the unsuspecting respondents, Richard and Anna Prophitius, in respect of the same property for the
sum of R195 000.

During September 2004, Whitkel concluded a purchase and sale agreement in respect of the property with
the appellant.  On 15 February 2005, the property was transferred to and registered in the names of the
respondents by the Registrar of Deeds, Pietermaritzburg.  On 5 May 2005, there was a simultaneous
transfer from the Trust to Whitkel and in turn from Whitkel to the appellant.

As there was a dispute as to ownership of the property, the applicants approached the High Court for an
order that they be declared the rightful owners of the property.  The appellant opposed that application and
counter-applied for the same relief.  The respondents succeeded before Nicholson J.

On appeal, it was contended on behalf of the appellants that the Trust had no intention to transfer
ownership of the property to the respondents, but intended rather to defraud them.  The SCA held that all
the facts pointed firmly to an intention on the part of the Trust to successfully cause transfer of the property
to be registered into the names of the respondents.  As to the fraud - according to the SCA, if fraud was the
motive, then the trust's ultimate goal would have been the securing of payment of the higher purchase price
offered by the respondents.  That in turn was dependent upon the successful registration and transfer of the
property into the names of the respondents.  Were the property not to have been transferred, the fraudulent
purpose would not have been achieved.  It followed that the trust must have held a genuine intention to
pass ownership to the respondents. In those circumstances, the appeal had to fail.

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