EX PARTE BRUCKEN 1952 (3) SA 227 (W)

1952 (3) SA p227

Citation

1952 (3) SA 227 (W) Witwatersrand Local Division Steyn J May 13, 1952 May 13, 1952

Court

Judge

Heard

Judgment

E Flynote : Sleutelwoorde

Revenue - Transfer duty - Transfer direct to cessionary of a deed of sale - Cedent's estate under sequestration - Notice to F trustee, seller and Rand Townships Registrar - Order to effect transfer direct granted subject to duty being paid as if sec. 14 of Act 47 of 1937 had been complied with.
Headnote : Kopnota Applicant, as cessionary, had obtained from the original purchaser all the right, title and interest in certain immovable property under a deed of sale, and had fulfilled all the obligations thereunder. The estate of G the original purchaser was subsequently sequestrated, and she did not disclose this property as an asset in her estate. When the seller intimated to the applicant that it was not able by reason of section 14 of Act 47 of 1937 to pass transfer direct to him, the applicant applied for an order authorising the seller so to pass transfer to him and authorising the Rand Townships Registrar to effect such transfer. The applicant did not contest the right of the Commissioner of Inland Revenue to claim transfer duty as if the property had first been Htransferred to the original purchaser. Notice of the application had been given to the trustee, the seller and the Rand Townships Registrar, and the latter in his report had stated that he had no objection to the order being granted provided that the same transfer duty was paid as if section 14 of Act 47 of 1937 had been observed. Held, that the application should be granted as prayed, subject to the transfer duty being paid as claimed by the Registrar.

1952 (3) SA p228

DE VILLIERS J Case Information Application for an order authorising the seller of certain immovable property to effect transfer direct to the applicant, who was a cessionary from the original purchaser. The applicant had averred that on the 26th February, 1945, his mother had by deed of sale purchased from the registered owners Messrs. A Newmarket Estates (Pty.) Ltd. certain freehold property the purchase price of which was payable in instalments. The purchaser had paid a portion of the purchase price and thereafter on the 30th May, 1949, had ceded all her right, title and interest in the deed of sale to the applicant, the cession having been evidenced in writing. The applicant B had since paid the balance of the purchase price together with interest to the seller. On the 28th February, 1950, the estate of the applicant's mother had been placed under sequestration. The applicant's mother had not disclosed the property purchased from Newmarket Estates (Pty.) Ltd. as C an asset in her estate and such estate was being administered without any reference being made to the said property. The applicant wished to have the property transferred into his own name but Newmarket Estates (Pty.) Ltd. had intimated that they were unable to do this by reason of the provisions of sec. 14 of Act 47 of 1937 and had referred the petitioner to the case of Crinklewood Investments (Pty.) Ltd v Rand D Townships Registrar, 1946 W.L.D. 381. The applicant now prayed for an order authorising Nemarket Estates (Pty.) Ltd. to effect transfer of the property direct to him, and authorising the Rand Townships Registrar to register such transfer. The E applicant did not contest any rights of the Commissioner for Inland Revenue to claim transfer duty as if the property were first transferred to the original purchaser. Notice of the application had been given to the seller, the Rand Townships Registrar and the trustee of the insolvent estate of the applicant's mother. The Rand Townships Registrar F in his report stated that he had no objection to the order being granted as prayed, providing that the same transfer duty was paid as if sec. 14 of Act 47 of 1937 had been complied with. There was no opposition from the trustee or the seller. G I. Isaacs, for the applicant. The Court has discretion in terms of sec. 14 of Act 47 of 1937 to grant such an order. In this case if the Court does not grant the order the applicant could not obtain transfer at all. The trustee of the original purchaser never obtained any rights in the property. The insolvent could not take transfer into her own name and pass transfer to the applicant. H The Court [STEYN, J.] granted the order so prayed, subject to transfer duty being paid as claimed by the Rand Townships Registrar. Applicant's Attorneys: Lubbers, Spitz, Block & Carel.