Du Plessis v Prophitius and Another

• Jurisdiction: South Africa
• Judge: Navsa JA, Van Heerden JA, Ponnan JA, Snyders JA and Kroon AJA
• Judgment Date: 03 June 2009
• Citation: 2010 (1) SA 49 (SCA)
• Docket Number: 204/08
• Hearing Date: 22 May 2009
• Counsel: XPM van Ryneveld for the appellant. KJ Kemp SC (with SI Humphrey) for the respondents. A Louw for the defendant.
• Court: Supreme Court of Appeal

Ponnan JA: A

[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. B 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 C 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 D who had been appointed in terms of the agreement to effect transfer of the property to Whitkel. 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 E 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 F 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, Pietermaritzburg, [2] in terms of reg 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 G 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 was, to the knowledge of Campbell, false.

[5] In compliance with the regulation an advertisement was placed in the H 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...