Legator McKenna Inc v Shea

An attorney, Mr McKenna, was appointed by court as curator bonis to administer the estate of Ms Shea, who had suffered brain injuries. Before the Master issued letters of curatorship under s 72 of the Administration of Estates Act 66 of 1965, McKenna purported to sell Shea’s immovable property to the Erskines, subject to the approval of the Master. The Master later issued letters of curatorship and approved the transaction, and transfer of the property was registered in the Deeds Office. Shea subsequently recovered and was declared capable of managing her affairs. She then instituted action seeking return of the property, contending that the sale and resulting transfer were invalid because McKenna lacked authority at the time of sale.

The appeal was upheld with costs. The order of the High Court was set aside and replaced with an order dismissing the plaintiff’s claim for return of the property with costs.

This case is a leading authority confirming that the abstract theory of transfer applies to immovable property in South African law. It clarifies that ownership may pass on registration despite an invalid underlying sale, provided there is a valid real agreement. The judgment is also significant for its analysis of the powers of curators bonis and the interaction between statutory non-compliance, contractual validity, and transfer of ownership.