A seemingly straightforward property dispute has culminated in the KwaZulu-Natal High Court in Pietermaritzburg dismissing an appeal by Yusuf Mohammed Essack over the ownership of an exclusive use parking bay at the Willem Court complex, close to Durban’s Victoria Embankment. What appears on the surface to be a simple misunderstanding is rooted in a complex history of property transactions and legal oversights stretching back to the 1990s.
It all began in May 1994 when Cornelius van Rooyen Botha purchased two units, 77 and 78, at the Willem Court complex. As part of this acquisition, Botha secured the exclusive use rights for parking bays 19 and 20 through an agreement with the Body Corporate. However, things took a complicated turn later that year. In October 1994, Botha sold unit 78 to a buyer named Westbrook, claiming to include parking bay 20 in the deal. Yet, the deed of transfer made no mention of parking bay 20, nor was there a notarial deed to officially transfer ownership of the bay.
Fast forward to April 1996, and the plot thickens. The Body Corporate formally ceded the exclusive use of parking bays 19 and 20 back to Botha through a notarial deed registered with the registrar of deeds. Despite this, in July 1997, Westbrook sold unit 78 to Yusuf Essack, stating that parking bay 20 was part of the sale. However, once again, the legal documents—including the power of attorney and the notarial deed of transfer—made no mention of the parking bay. Nevertheless, Essack began paying levies for parking bay 20 to the Body Corporate, believing he owned it.
The situation further unraveled in June 2002 when Vino Adams Thangavelu signed an offer to purchase unit 77 from Botha. Initially, parking bay 20 wasn’t included in this offer. However, by July 2002, Botha authorized the transfer of unit 77 along with the exclusive use of both parking bays 19 and 20 to Thangavelu. This revelation prompted Essack to initiate legal action, claiming that an error during the transfer of his unit led to the parking bay’s exclusion.
Essack argued that the conveyancing attorneys and the deeds office had overlooked transferring the parking bay’s rights alongside unit 78. However, the court found that Essack failed to provide sufficient proof of any such error. The judges pointed out that Westbrook, from whom Essack purchased unit 78, never legally held the title to parking bay 20. Therefore, no mistake could have been made in failing to transfer something Westbrook didn’t own.
The High Court emphasized a fundamental principle of property law: a person cannot transfer a title greater than what they possess. Since Westbrook had no legal claim to parking bay 20, he couldn’t pass on such a claim to Essack. The judges suggested that Essack might have a better chance seeking reimbursement for the levies he paid for the parking bay, rather than pursuing ownership.
In the end, the full bench of the High Court dismissed Essack’s appeal with costs, bringing a close to his long-standing fight for a parking bay he believed was rightfully his. What began as a simple property transaction spiraled into a legal labyrinth, illustrating how property rights—even over something as seemingly minor as a parking space—can become entangled in decades of legal complexities.
