Thienhaus NO v Metje & Ziegler Ltd and Another is an important case in South Africa

South Africa

The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...

n property

South African property law

South African property law regulates the "rights of people in or over certain objects or things." It is concerned, in other words, with a person's ability to undertake certain actions with certain kinds of objects in accordance with South African law....

 law. It was heard in the Appellate Division, by Steyn CJ, Van Blerk JA, Ogilvie Thompson JA, Williamson JA and Wessels JA, on February 22, 1965

1965 in South Africa

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, with judgment handed down on April 1.

Facts

G owed money to M, the respondent. The debt was secured by a mortgage passed on property belonging to B in favour of M. The mortgage bond was incorrectly worded to indicate that the debt was owed by SG (who happened to be the sole shareholder of G). When B became insolvent, T was appointed liquidator. M sought a preferential right in terms of the mortgage bond, but this claim was rejected by T on the grounds that, due to the factual inaccuracy, the mortgage had not come into existence.

Judgment

The court held, firstly, that a mortgage bond may be used both as an instrument of hypothecation and also as a record of debt, and secondly that it is matter of custom in drafting mortgage bonds to incorporate an admission of liability by the mortgagor to facilitate a quick and easy remedy.

Books

• PJ Badenhorst, JM Pienaar and H Mostert Silberberg and Schoeman's The Law of Property 5 ed (2006).
• H Mostert and A Pope (eds) The Principles of The Law of Property in South Africa 1 ed (2010).