Malan v Die Gerhard Labuschagne Familie Trust and Another

The Gerhard Labuschagne Family Trust owned Erf 25, Schweizer Reneke. After subdivision, Irene Nel bought Portion 1 and obtained an option to purchase part of the remainder (the disputed property). She exercised the option and paid the price, and the Surveyor-General approved a further subdivision, but the disputed property was never transferred to her nor consolidated with Portion 1. Nel was later sequestrated. Daniel Malan purchased Portion 1 from the trustee of Nel’s insolvent estate and took occupation of both Portion 1 and the disputed property, making improvements. In 2012 the trust sold and transferred the remainder, including the disputed property, to C & C Delwerye CC, which was unaware of any claim to the disputed property. Malan sought rectification of the sale agreement and title deeds to reflect ownership of a consolidated portion including the disputed property, while the CC sought his eviction.

The appeal was dismissed with costs, including the costs of two counsel. The order of the full court dismissing Malan’s application and granting eviction in favour of C & C Delwerye CC stood.

The case reaffirms fundamental South African property-law principles distinguishing personal rights from real rights, confirms the necessity of registration for the transfer of ownership of immovable property, and underscores the protection afforded to bona fide purchasers who acquire registered title without knowledge of unregistered personal rights.