About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2013
>>
[2013] ZAECPEHC 51
|
|
Kraai and Others v Masiza and Others (2133/2013) [2013] ZAECPEHC 51 (18 October 2013)
Not Reportable
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE –
PORT ELIZABETH
Case No: 2133/2013
In the matter between:
NOSIZWE KRAAI
............................................................
First
Applicant
MNINAWE SILINGA N.O
.............................................
Second
Applicant
PUMLA SILINGA N.O.
....................................................
Third
Applicant
and
KHULILE PHILLIP
MASIZA
..........................................
First Respondent
MALIBONGWE ROBERT
KRAAI
................................
Second
Respondent
MZWANDILE MPHAHLA
..............................................
Third
Respondent
ZANELE MPAHLA
......................................................
Fourth
Respondent
REGISTRAR OF DEEDS,
CAPE TOWN
............................
Fifth
Respondent
JUDGMENT
REVELAS J
[1] This is the return
day of a
rule nisi
. The only issue in dispute is the question
of costs. The applicants brought an urgent application seeking
various orders arising
from the alienation of certain immovable
property, which the first applicant and second respondent inherited
in undivided shares.
The first applicant holds seventy five percent
shares in the property and the second respondent twenty five percent.
[2] The first applicant
seeks, pending the determination of an action instituted against the
second, third and fourth respondents,
an order prohibiting the first
to fourth respondents from transferring the entire property in
question, in terms of an agreement
of sale which the first applicant
contends, is a nullity because the signature on the deed of sale,
purporting to be hers is a
forgery. This agreement was allegedly
entered into between the first applicant and second respondents as
sellers, with the third
and fourth respondents as purchasers. The
first respondent is the attorney who attended to this agreement and
the transfer of the
property. Prior to the aforesaid agreement, the
second and third applicants had already entered into an agreement of
sale with
the first applicant on 16 November 2012, in terms of which
they purchased her fifty percent share of the property. It became
common
cause between the parties at the onset of the hearing of this
application that this was a valid sale.
[3] The second and
third applicants (trustees of the Pepi Selinga Development
Consultation Trust) sought a declaratory to the effect
that their
agreement of sale is valid and enforceable in all respects. In
addition, they also sought an interdict prohibiting the
first to
fourth respondents from transferring the property. (The fifth
respondent is the Registrar of Deeds).
[4] It was conceded by
Mr Nobatana, on behalf of the first to fourth respondents, that the
agreement concluded with the second and
third applicants, pre-dates
and therefore supercedes the agreement concluded between the first
applicant and the second respondent
with the third and fourth
respondents. Accordingly the relief sought by the second and third
applicants should be granted.
[5] Since the second
and third applicants were successful in obtaining the relief sought
by them, the first to fourth respondents
are liable to pay their
costs of the application. There are several indications on the
papers, particularly the annexures, that
the first applicant’s
signature may not be a forgery. Counsel for the first applicant did
not attempt to persuade me that
it was. Although that factual dispute
is not to be determined on these papers, I have however formed the
view that the first applicant
has put up a rather weak case in that
regard and the first applicant should not be entitled to her costs in
these circumstances,
even though she was successful in obtaining an
interdict against the transfer of the property.
[6] Accordingly, I make
the following order:
The Agreement of Sale
concluded on 16 November 2012 between the applicants is valid and
enforceable.
The first, second,
third and fourth respondents are interdicted from transferring the
undivided half share of Erf 5160 Ibhayi
acquired by the second and
third applicants in their capacitates as Trustees of the Pepi
Silinga Development Consulting Trust.
The first respondent
is ordered to deliver to the second and third applicants the VA copy
of the title deed herein.
The first, second,
third and fourth respondents are ordered to pay the costs of the
second and third applicants, jointly and severally.
_____________________
E REVELAS
JUDGE OF THE HIGH
COURT
Counsel for the
Applicants: Adv A Beyleveld SC
Adv I Bands
Port Elizabeth
Instructed by:
Fredericks Incorporated
Port Elizabeth
Counsel for the
Respondents: Adv Nobatana
Port Elizabeth
Instructed by: Noble
Sikwela Attorneys
Port Elizabeth
Date Heard: 17 October
2013
Date Delivered: 18
October 2013
5