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[2022] ZAECMKHC 109
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Christ the King Primary School CC v Vallabh N.O and Others (3922/2022) [2022] ZAECMKHC 109 (13 December 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO: 3922/2022
In
the matter between:
CHRIST
THE KING PRIMARY SCHOOL CC
(Registration
No.
2008/183435/23)
Applicant
and
PRAKASH
VALLABH N.O
First Respondent
RENUKA
VALLABH N.O.
Second Respondent
BAREND
JOHANNES SAHD N.O.
Third Respondent
(in
their joint capacities as trustees
for
the time being of the
VF
Group Trust (Master’s Ref: IT29/2011(E))
THE
REGISTRAR OF DEEDS
Fourth Respondent
JUDGMENT
Rugunanan
J
[1]
In a notice of motion issued on 10 November
2022 the applicant approached this court on urgency in which it
sought interim relief
in the form of an interdict
pendente
lite
restraining the first, second and
third respondents (‘the respondents’) from selling and/or
entering into a contract
with any potential purchaser and/or
transferring certain fixed property namely, ERF 4793, Queenstown
(‘the property’),
pending the finalisation of a further
application previously issued on 17 October 2022 under Case Number
3668/2022 (‘the
pending application/proceedings’).
[2]
The relief sought in the pending
proceedings is mentioned later in this judgment.
[3]
The present application was triggered when
the deponent to the applicant’s founding affidavit (in which
she describes herself
as ‘the managing member of the
applicant’), came across a website advertising the property for
sale while surfing the
internet on 8 November 2022.
[4]
I heard argument in the matter on 15
November 2022, and on 16 November 2022, I made an order
dismissing the application and
indicated that a judgment
incorporating reasons together with an appropriate order as to costs
will follow.
[5]
What follows are my reasons.
History
[6]
During March 2016 the deponent acting on
behalf of the applicant entered into a written agreement of sale in
terms of which the
applicant purchased the property from the VF Group
Trust (‘the trust’) – the latter, duly represented
by the
respondents.
[7]
The applicant breached the agreement by
defaulting on its payment obligations.
[8]
Clause 6 to the agreement regulated the
applicant’s payment obligations. The clause expressly directs
that all payments made
by the purchaser are non-refundable. The
applicant’s default was occasioned by a breach of its payment
obligations when it
failed to make payment in terms of the agreement.
In addition the agreement obliged the applicant to pay municipal
services charges
levied on the property, which it failed to do.
[9]
The respondents also make averments about
damage to the property occasioned by internal structural
modifications without approval
from the trust, and about a fine
imposed on the trust by the local municipality for an electricity
meter that was tampered with
during the applicant’s occupancy
of the property.
[10]
Following applicant’s default of the
payment terms stipulated in the agreement, the agreement was
cancelled on 31 January
2019.
[11]
I will revert to the cancellation date when
assessing the question of urgency.
[12]
What followed upon the cancellation was an
application launched in the district magistrates’ court for the
applicant’s
ejectment from the property.
[13]
The ejectment order was granted by default.
This order then became the subject of a rescission application (‘the
first rescission
application’) which the applicant withdrew but
was soon after followed by a second rescission application, as also
an urgent
application in which a rule
nisi
was sought against the trust pending the outcome of the second
rescission application. Despite opposition by the respondents to
the
urgent application, it appears that the matter was never argued in
the lower court.
[14]
The second rescission application proceeded
to argument and was dismissed by the magistrate with an order that
the applicant pays
costs on a punitive scale. The applicant did not
dispute its breach of the abovementioned agreement. It was also not
disputed that
the agreement had been cancelled and that the applicant
enjoyed no lawful entitlement to maintain occupation of the property.
Foundational
to the magistrate’s decision was that, on the
undisputed issues, the applicant could not demonstrate a
prima
facie
defence with a reasonable
prospect of success.
[15]
The applicant appealed to the high court
against the dismissal of the second rescission application. The
appeal was dismissed with
costs. A further appeal to the high court
constituting a full bench was aborted as an irregular proceeding and
the application
withdrawn by the applicant with a tender for costs.
[16]
The further application of 17 October 2022
was subsequently precipitated by the applicant. The status of that
application is that
it is not ripe for hearing. In that application
the applicant seeks, in essence, an order compelling the respondents
to transfer
the property into the name of the applicant. Paired
therewith is a claim that the trust be directed to comply with the
written
agreement of March 2016, which ostensibly appears to be a
challenge to its cancellation. The events that followed culminated in
the initiation of the present proceedings as set out in the
circumstances earlier mentioned in this judgment.
[17]
In summary, there has been one appeal and
six applications – three in the high court and three in the
district court –
all of which evolved in the period that
followed the cancellation of the sale agreement to date. It is
pertinently asserted in
the respondents’ opposing affidavit
that the attorney and client costs of the trust are substantial; that
to date efforts
to tax the bill of the trust’s attorneys have
been thwarted by the applicant ostensibly on the basis that the
litigation
regarding the property is still pending in this court.
[18]
In each of the applications (as in the
present) and the appeal referred to earlier, the applicant has never
directly challenged
the cancellation of the sale agreement.
Similarly, it has never denied: (i) that it was in default of its
payment obligations under
the agreement, and (ii) that upon the
cancellation thereof, the applicant has no occupational right in the
property. This, the
respondents maintain, was the sole basis of the
magistrate’s unopposed order for ejectment.
[19]
On 1 June 2022 the property was sold to a
business of funeral undertakers.
Approach
to the papers
[20]
The entire evidentiary basis on which the
present application is brought resides in the founding affidavit.
Evident from the ensuing
analysis of the merits of the matter, the
affidavit is wholly unsustainable.
[21]
The events and circumstances in the
aforementioned paragraphs, recounted from the opposing affidavit, are
undisputed by the applicant
in reply.
[22]
For
the granting of interim relief, the proper approach is to take the
facts set out by the applicant, together with the facts set
out by
the respondent which the applicant cannot dispute, and to consider
whether having regard to the inherent probabilities,
the applicant
should, not could, on those facts, obtain final relief in due
course.
[1]
[23]
I accept the facts averred by the
respondents that are not disputed by the applicant, and the
respondents’ version insofar
as it presents as inherently
probable.
[24]
I adopt this approach to the papers
accordingly – the outcome of the matter turning on that basis.
The
merits
[25]
In these proceedings the applicant seeks
what the respondents correctly describe as ‘a supernatural
remedy’ for an order
that this court effectively accords
recognition to the cancelled agreement pending determination of an
asserted right to claim
specific performance in the pending
application.
[26]
In
argument the applicant sought reliance on the following
dictum
in
Gugu
v Zongwana
[2]
:
‘
Where
ownership has not yet passed to any of the competing purchasers, the
personal right of the purchaser who is first in time
is given
preference by the application of the maximum
qui
prior est tempore potior est jure
…
The result of this is that the first purchaser has the right to claim
specific performance of his contract and to restrain
the seller from
committing a breach of his contract by interdicting the seller from
passing ownership to the second purchaser,
whose only remedy in turn
is an action for damages against the seller.’
[27]
The applicant does not dispute that the
agreement concluded during March 2016 was cancelled on 31 January
2019. This occurred as
a result of a breach at its own instance. In
the circumstances, the applicant cannot assert a personal right as
envisioned in the
above-mentioned
dictum
;
nor can such a right be accorded recognition, at the very least, even
at a
prima facie
level.
[28]
Under the lead of the
Alienation of Land
Act 68 of 1981
, the applicant seeks to enforce a claim for specific
performance in its pending application, this ostensibly on the basis
that
the legislation protects the interests of those who purchased
fixed property in instalments. For reasons dealt already with, a
personal right cannot be accorded recognition where the
aforementioned cancellation is undisputed. It is therefore
unnecessary
to consider the argument relating to the applicability or
otherwise of the
Alienation of Land Act.
[29
]
For
the respondents it was contended in argument that the applicant’s
claim is for the delivery of immovable property, which
claim has
prescribed three years from the date of the cancelled agreement.
[3]
I do not read the current notice of motion to suggest that the claim
is one for delivery. This depiction of the relief appears
more
readily in the notice of motion in the application pending. It is
therefore considered unnecessary to deal with the prescription
issue
in these proceedings, regard being had to the approach adopted
hereto.
[30]
The respondents have addressed me in
considerable length as to the remaining jurisdictional requirements
for granting interim relief.
These arguments have been dealt with on
record and in their heads of argument and do not require detailed
repetition herein, save
to the extent dealt with in the ensuing
paragraphs.
[31]
The applicant has not demonstrated a
well-grounded apprehension of irreparable harm in the sense that the
respondents have deliberately
attempted to sell the property to
defeat the relief sought in the pending proceedings. Absent any
meaningful challenge (whether
in these proceedings or at any stage
prior thereto) to the cancellation of the agreement, it appears that
nothing precluded the
sale of the property on 1 June 2022 to another
purchaser. In the passage of events, the sale of the property
occurred well before
the institution of the pending application, this
at a stage when the applicant (on the papers as they stand) never
disclosed its
intention to seek specific performance, ancillary to
which lies the challenge to the cancellation of the agreement.
[32]
The respondents contended that the
applicant has not shown that it has no other satisfactory remedy. In
point of fact, the argument
is that the applicant has, as an
effective and satisfactory remedy, a claim for damages if on its
version, the respondents have
breached the terms of the sale
agreement. Assuming this to be the case (without finding as such),
the applicant has not demonstrated
that a claim for damages will be
rendered nugatory or that such a claim will be unavailable to it.
[33]
As
for the balance of convenience favouring the grant of interim relief,
the multitude of factors informing the failure by the applicant
to
establish any of the above-mentioned jurisdictional requisites do not
resolve into a favourable consideration thereof. Indeed,
on a
conspectus of the material before me, they significantly detract
therefrom. The considerations of a
prima
facie
right, a well-grounded apprehension of harm, and the absence of an
ordinary remedy are not individually decisive but are interrelated.
Put otherwise, what is meant thereby is that the stronger the
applicant’s prospects of success, the less is its need to rely
on prejudice to itself; and conversely, the more the element of some
doubt, the greater the need for the other factors to favour
the
applicant.
[4]
The other factors
certainly do not count in favour of the applicant; common sense
therefore, refutes any suggestion that the balance
of convenience
favours it.
[34]
It
is acknowledged that the nature of interdictory relief is
discretionary
[5]
.
[35]
The lack of merit in these proceedings and
the abuse of process count against the exercise of a discretion in
favour of granting
the relief prayed for.
[36]
Before concluding, there remains one issue
that requires mentioning.
[37]
It relates to urgency.
[38]
Nowhere in the founding papers does the
applicant disclose that the agreement was cancelled on 31 January
2019. The failure to do
so is not disputed, nor is the asserted
cancellation. On the applicant’s case, urgency was triggered
when the deponent encountered
a website advertising the property for
sale while surfing the internet on 8 November 2022.
[39]
In
National
Union of Metalworkers of SA v Bumatech Calcium Aluminates
[6]
the
court stated that:
‘
Urgency
must not be self-created by an applicant, as a consequence of the
applicant not having brought the application at the first
available opportunity. In other words, the more immediate
the reaction by the litigant to remedy the situation by way
of
instituting litigation, the better it is for establishing urgency.
But the longer it takes from the date of the event
giving rise
to the proceedings, the more urgency is diminished. In short, the
applicant must come to court immediately, or risk
failing on
urgency.’
[40]
Unreservedly, I agree herewith in
principle.
[41]
The present application is a manufactured
attempt by the applicant to buy time against the backdrop of a long
delay underpinned
by an inexplicable failure to make full and candid
disclosure. Had the applicant genuinely desired for this court to
come to its
assistance it would have reacted at the very first
opportunity – it stood back for several years and did
nothing until
8 November 2022 when it decided to approach this
court on urgency, without any consideration (in its notice of motion)
for
an abridgement of the time periods to accommodate the respondent.
[42]
Plainly, the proceedings are an abuse of
process.
[43]
Ineluctably, the applicant’s conduct
and motives must be assessed in the light of the above undisputed
history and circumstances,
as also its failure to demonstrate a
prima
facie
right.
[44]
The history of the matter indicates the
numerous occasions in which the applicant has been litigating over
the property.
[45]
It has conducted itself in disregard for
standing court orders by embarking on a series of strategies that
have been meritless and
oppressive (on occasion having gone to the
extent of recruiting intervention from a political to threaten the
first respondent
if occupation of the property was not restored to
the applicant).
[46]
The respondents contended that the
applicant litigates with impunity, that its conduct is oppressive,
and that its applications
clog up the court roll with attendant
constraints on judicial resources.
[47]
They seek an exemplary costs order.
[48]
I see no reason to take issue with their
contentions in this regard.
[49]
In the circumstances:
1.
The order dismissing the application is
confirmed.
2.
The applicant shall pay the costs of the
first, second and third respondents on a scale as between attorney
and own client; such
costs shall be taxable immediately and payable
thereafter.
M. S. RUGUNANAN
JUDGE OF THE HIGH
COURT
APPEARANCES:
For
the Applicant:
A. Teko
Instructed
by:
Z.
E. Sontshi & Associates
c/o
Yokwana Attorneys
Makhanda
(Ref:
N. Yokwana)
For
the 1
st
, 2
nd
and
3
rd
Respondents: D. A. Smith
Instructed
by:
Wesley
R. Hayes Attorneys
c/o
Borman & Botha Attorneys
Makhanda
(Ref:
J. Powers)
Date
heard:
15
November 2022
Reasons delivered:
13 December 2022
[1]
Spur
Steak Ranches Limited and Others v Saddles Steak Ranch, Claremont
and Another
1996 (3) SA 706
(C) at 714E-F;
Windsor
Hotel (Pty) Ltd v New Windsor Properties (Pty) Ltd and Others
[2013] ZAECMHC 14 para 6.
[2]
[2014] 1 All SA 203
para 32.
[3]
Botha v
Standard Bank of South Africa Ltd
2019 (6) SA 388
(SCA) para 27.
[4]
Eriksen
Motors (Welkom) Ltd v Protea Motors, Warrenton and Another
1973 (3) SA 685
(A) at 691C-G.
[5]
Hix v
Networking Technologies (Pty) Ltd v System Publishers (Pty) and
Another
[1996] ZASCA 107
;
[1996]
4 All SA 675
(A) at 684.
[6]
(2016) 37 ILJ 2862 (LC)