The SCA, in Bondev Midrand (Pty) Ltd v Puling and Another and a Similar Case (2017 (6) SA 373 (SCA)) (Bondev v Puling), made significant pronouncements on whether a right to claim a re-transfer of immovable property (commonly known as a reversionary right) has prescribed in terms of the Prescription Act (68 of 1969) in circumstances where a buyer has failed to erect dwellings within a prescribed period. In response to one of the defences to this claim, it had to decide whether such a reversionary right is a real or personal right. In order to come to its decision, the SCA also referred to the question whether the reversionary right violates the constitutional right not to be arbitrarily deprived of property as well as of the right to have access to adequate housing. More importantly, it had to determine whether a condition incorporating a right to claim a re-transfer of immovable property could be separated into two rights, one constituting a real right, and another a personal right. The purpose of this note is to critically discuss the case in Bondev v Puling. The discussion seeks to critically analyse the correctness of the court’s decision in applying the established test for registration of conditions in terms of section 3(1)(r) read with section 63(1) of the Deeds Registries Act (47 of 1937) (DRA). This note also questions the SCA’s decision that it is possible to separate a condition in the title in order to determine whether parts thereof are real or personal. Before embarking on this discussion, the facts of the case, as well as the issues and decision will be discussed.
On 22 May 2015, the Supreme Court of Appeal (“SCA”) handed down a judgment in the matter of Lodhi 5 Properties Investments Cc v Firstrand Bank Limited [2015] 3 All SA 32 (SCA). This judgement considered whether the prohibition against the charging of interest on loan in terms of Islamic law (Shariah law) may be a defence for a claim for mora interest in term of a loan agreement. This note critically discusses the judgement in light of the approach adopted by the SCA with regard to addressing dispute arising from a contract that has Islamic law as a governing law. As this is the first case that came before the SCA in South Africa, this note critically analyses how this court discussed the applicable principles of Islamic law as applicable to the dispute between the parties. In particular, it questions the court’s assertion that a claim for mora interest has nothing to do with and is not affected by the Shariah law's prohibition against payment of interest on a loan debt. It also looks at the SCA’s approach (as a common law court) with regard to the enforcement of Islamic banking law principles. This judgement raises important issues regarding the enforceability of Islamic finance law and therefore merits discussion, in light of the continuing growth and expansion of Islamic banking and finance law in South Africa.
Land and interests in land have traditionally been man’s most basic forms of wealth. As a result, many elaborate legal systems have evolved to protect this wealth and the rights associated with it. This has led to the establishment of the most recognized land registration systems, namely the title registration system (known as the Torrens system) and the deeds registration system. Both of these systems provide owners of land and lenders with protection regarding property ownership and financial interests in land. South Africa has chosen to adopt the deeds registration system with some elements of the title registration system. This system is hailed as among the best in the world, simply because the validity of ownership and interests in land are the responsibilities of conveyancing practitioners and land registration officials. However, such protection is not fully guaranteed. This paper discusses the possibility of introducing title insurance – a form of indemnity insurance which insures a person against financial loss from defects in title to immovable property and from the invalidity or unenforceability of mortgage liens – to protect the financial interests of both land owners and lenders in the property.
scite is a Brooklyn-based organization that helps researchers better discover and understand research articles through Smart Citations–citations that display the context of the citation and describe whether the article provides supporting or contrasting evidence. scite is used by students and researchers from around the world and is funded in part by the National Science Foundation and the National Institute on Drug Abuse of the National Institutes of Health.