The KwaZulu-Natal High Court in Pietermaritzburg has dismissed an appeal by Yusuf Mohammed Essack regarding the ownership of an exclusive use parking bay at the Willem Court complex, situated near Durban's Victoria Embankment.

The judgment comes after an intricate saga of property rights dispute that has roots extending back to the 1990s.

The issue dates back to May 1994 when Cornelius van Rooyen Botha acquired two units, 77 and 78 at Willem Court complex. He subsequently entered into an agreement with the Body Corporate to purchase the right of exclusive use for parking bays 19 and 20.

In October 1994, Botha sold unit 78 to what court documents only name as a Mr Westbrook, together with the right of exclusive use of parking bay 20.

However, according to the deed of transfer only unit 78 was sold and transferred from Botha to Westbrook, parking bay 20 was not mentioned at all in the deed of transfer nor was there any notarial deed that sought to transfer ownership.

In April 1996, the body corporate ceded the right of exclusive use of parking bays 19 and 20 to Botha by means of a notarial deed registered with the registrar of deeds.

In July 1997, Westbrook sold unit 78 together with the right of exclusive use of parking bay 20 to Essack.

Westbrook signed a power of attorney for the transfer of unit 78 to Essack, however, parking bay 20 was not mentioned at all in the power of attorney. Subsequently, when unit 78 was transferred by a notarial deed of transfer to the appellant, the right of exclusive use of parking bay 20 was not ceded to him. Despite this, Essack paid levies for the parking bay to the body corporate.

In June 2002, Vino Adams Thangavelu signed an offer to purchase unit 77 from Botha, but the right of exclusive use of parking bay 20 was not included in that offer.

However, in July 2002, Botha signed a power of attorney authorising the transfer of unit 77 and the cession of the right of exclusive use of parking bays 19 and 20 to Thangavelu.

Discovering that parking bay 20 had been ceded to another party, Essack initiated legal proceedings to stake his claim.

He argued that during the transfer of unit 78 into his name, an oversight occurred at the offices of the conveyancing attorneys as well as at the deeds office, leading to the right of exclusive use of parking bay 20 not being transferred alongside the property.

However, the court determined that he did not fulfil his burden of proving that any error had indeed occurred. It was also found that he had not demonstrated that he was entitled to the exclusive use of the parking bay or that it had been wrongly ceded to Thangavelu.

Disenchanted, he appealed the decision where the matter was heard by a full bench of the high court.

The judges noted that when Westbrook sold the parking bay to Essack, he never held legal title to it.

The court also said by law, an individual cannot transfer a title superior to what they possess, and a buyer can only obtain the title that the seller holds.

"Thus, the offices of the conveyancing attorneys and the registrar of deeds could not have made an error by not ceding the right from Westbrook, which he did not have, to Essack."

The judges indicated that Essack’s claims might be more relevant if he sought the recovery of funds paid for the parking bay and ongoing levies rather than ownership itself.

Ultimately, Essack's appeal was dismissed with costs.

sinenhlanhla.masilela@iol.co.za

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