Fegen v Mphakathi

The King of the Pondos sold two immovable properties (erf 711 and erf 712, Port St John’s) first to Douglas Mphakathi in June 2000. Mphakathi paid deposits, was entitled to immediate occupation, and with the King’s knowledge and support undertook lengthy litigation to evict unlawful occupiers so that he could farm and generate income to pay the balance of the purchase price. Before transfer was effected, the King—prompted by Shawn Fegen—sold the same properties to Shawn and Brenda Fegen at a much lower price and transferred them into their names. The Fegens then demanded that Mphakathi vacate. Mphakathi applied to the Eastern Cape High Court to have the second sale and transfer set aside, alleging that the Fegens had knowledge of his prior purchase. The High Court set aside the second sale and transfer. The Fegens appealed to the Supreme Court of Appeal, raising prescription of Mphakathi’s right to claim transfer and denying knowledge of the prior sale.

The appeal was dismissed. The appellants were ordered to pay the respondent’s costs of appeal. The High Court order setting aside the second sale agreements and transfer to the Fegens remained in force.

The case is significant for confirming that a second purchaser who acquires property with knowledge—actual or in the form of dolus eventualis—of a prior personal right to obtain transfer cannot rely on the subsequent registration of ownership. It also clarifies the application of prescription in the context of successive sales, emphasising acknowledgement of liability and renunciation of prescription, and reinforces the onus on a party raising prescription to properly plead and prove it.