Page 37 - Litigating Land and Housing in South Africa: Lessons and Reflections

4 1 2 Legal principles
4 1 1 2 1 1 High Court The The High Court found in in in favour of the the the the the the Moores Moores and and and reinstated their their property rights in in in their their home The The court declared the the the the the the agreements with Brusson null and and and void and and and ordered that the the the the the the properties be transferred back to the the the the the the Moores Moores 4 1 2 2 2 2 Supreme Court of Appeal
ABSA appealed this decision and and on on on 26 November 2015 the the Supreme Court of Appeal
handed down judgment The issues that had to be be decided on on on appeal appeal were whether:
a) The court a a a a a quo correctly held that the the Moores were entitled to an an order order setting aside the the mortgage bond or or or or an an an order order that deprives ABSA of its real right in the property and b) ABSA should be deprived of of its real right over the property when it it was innocent of of any wrongdoing The judgment was favourable to victims of of the the Brusson scheme with the the Supreme Court of of Appeal
ruling:
a) The agreements between the the Moores and Brusson were invalid due to the the lack of intention b) The transfer transfer of ownership was was invalid because there was was no intention to transfer transfer c) The mortgage bond in in favour of ABSA must be set aside on on the the the the the basis that the the the the the investor was not not the the the the the owner of the the the the the the property and therefore did not not have have the the the the authority to to apply to to have have a a a a a a bond registered over the the property 4 1 2 3 Constitutional Court d) The amounts owed to to to ABSA by the the the investor were not attributable to to to the the the the Moores because there was no no contractual contractual nexus between between the the the Moore’s and ABSA The contractual contractual relationship was between between Brusson and the Moores e) The mortgage bonds that the the the Moores had with ABSA before they they entered the the the the Brusson agreement could not be be be reinstated because they they were settled settled by Brusson Brusson Brusson Brusson had settled settled the the the the Moores bond with ABSA through the the the the transfer of the the the the property to to the investor ABSA’s appeal to the SCA was accordingly dismissed with costs This judgment created au- thority to the the effect that the the Brusson agreements are unlawful and void bonds obtained by alleged investors could not burden the the applicants’ proper- ties ties and that applicants applicants like the the the the Moores will have their their properties re-registered in their their names The Constitutional Court Court Court refused leave to appeal on on on on the the the the the basis that that ABSA did not show that that the the the the the Court’s jurisdiction was was engaged engaged Before making this finding finding the the the the the the the the the Court Court Court engaged engaged with with the the the the the the the the the parties’ arguments arguments It was was critical of of the the the the the the the the the arguments arguments put forward by by ABSA and and endorsed the the the the the the the the the the finding finding of of the the the the the the the the the the SCA SCA This This leaves in fin in fin in in in in force the the the the the the the the the the SCA’s order order (as read with with the the the the the the the the the the High Court order) This This was a a a a a a a a a a resounding win for for for the the the the the the the Moores and and all the the the the the the the clients who were affected by by the the the the the the the Brusson scheme LITIGATING LAND AND AND AND HOUSING IN IN IN SOUTH AFRICA  LESSONS AND AND AND REFLECTIONS
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