A Title Deed Should Only Be Cancelled if There is Convincing Evidence That it Does Not Reflect the True State of Affairs [Discussion of Agnes v TobekA (42040/2018) 2022 ZAGPJHC 814 (19 October 2022)]

• Citation: 2024 35 Stell LR 78
• DOI: https://doi.org/10.47348/SLR/2024/i1a5
• Published date: 06 February 2025
• Pages: 78-92
• Author: Brits, R.
• Date: 06 February 2025

https://doi.org/10.47348/SLR/2024/i1a5

78

A TITLE DEED SHOULD ONLY BE CANCELLED

IF THERE IS CONVINCING EVIDENCE THAT

IT DOES NOT REFLECT THE TRUE STATE OF

AFFAIRS [DISCUSSION OF AGNES V

TOBEKA (42040/2018) 2022 ZAGPJHC 814

(19 OCTOBER 2022)]

Reghard Brits

BCom (Law) LLB LLD

Extraordinary Professor, University of the Western Cape; Research Fellow, Stellenbosch

University*

Abstract

The court in Agnes v Tobeka (42040/2018) 2022 ZAGPJHC 814 (19 October

2022) ordered the cancellation of ve deeds of transfer to restore the original

owners as the registered owners of the property in question. The order was

based on a nding that the sale in execution of the property two decades

before was invalid because the creditor did not follow the correct judicial

process. Because the transfer pursuant to the sale in execution was invalid,

all subsequent transfers were invalid as well, with the result that the current

registered owner was not the rightful owner. This note does not question the

manner in which the court applied the substantive law regarding invalid

transfers of property. In light of the negative nature of the deeds registry

system, it is correct for a court to order the cancellation of a title deed that

does not reect the rightful owner. Instead, the note takes issue with the

manner in which the court drew conclusions from a very unclear factual

matrix based on almost no documentary or other evidence. The argument

is made that a title deed (such as a deed of transfer) should be regarded

as prima facie correct and should only be cancelled if the person who

alleges that the deed is inaccurate can supply sufcient evidence to prove

that person’s allegation on a balance of probabilities. The registered owner

should not have to disprove mere allegations of inaccuracy or prove that all

previous transfers were valid.

Keywords: Title deed; deed of transfer; cancellation; sale in execution;

invalid transfer; ownership

* An early version of this note was presented during a research seminar of the SU Department of

Private Law on 23 February 2023. I am grateful for the valuable inputs received during this event.

Also thank you to Michel Koekemoer for reading and commenting on this note.

SLReview Vol 35 No 1 2024 indb 78 2025/01/24 09 11

(2024) 35 Stell LR 78

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