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Fegen and Another v Mphakathi (348/2012) [2013] ZASCA 100

10th September 2013

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  • Fegen and Another v Mphakathi (348/2012) [2013] ZASCA 100
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Successive sales of immovable properties – prescription raised by a second purchaser in relation to first purchaser’s right to enforce registration of transfer – onus discussed – held that there had been an ongoing acknowledgement of liability by the seller to the first purchaser to transfer as against payment of the purchase price – renunciation of benefit of prescription – second sale set aside by high court on basis that the second purchaser had knowledge of prior sale – held that the first purchaser had established on balance of probabilities that second purchaser had knowledge in the form of dolus  eventualis of the prior right to obtain transfer of the property – second purchaser wilfully shut his eyes to the possibility of the prior rights and deliberately refrained from ascertaining the true position – Appeal against decision of the Eastern Cape High Court accordingly dismissed.

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