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[2021] ZAGPPHC 131
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Dawood v Khan and Others (9105/2021) [2021] ZAGPPHC 131 (8 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Case
Number: 9105/2021
Not
Reportable
In
the matter between:
MOHAMMED
KHAROOSH DAWOOD
Applicant
And
FARHANA
KHAN
First
Respondent
SHUABE
ABOO
Second
Respondent
REGISTRAR
OF DEEDS
Third
Respondent
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1]
The applicant seeks an order
restraining the first and second respondents from disposing of an
immovable property situated at Erf
2133, Erasmia, Registration
Division JR held by Deed of Transfer T 91939/1999 situated at 374 Van
der Wall Street, Erasmia, Centurion
(“the property”).
Applicant’s case
[2]
The applicant, Mohammed
Kharoosh Dawood (“Dawood”), alleges that he purchased the
property during January 2017 from
the first applicant, Farhana Khan
(“Khan”). In concluding the agreement, Khan was
represented by the second respondent,
Shuabe Aboo (“Aboo”)
who is a friend to both Dawood and Khan.
[3]
The material terms of the
agreement were as follows:
3.1
the purchase price was R 2 200 000, 00 payable in 22 equal monthly
instalments of R 100
000, 00, the first payment to made at the end of
February 2017;
3.2
Dawood will be entitled to occupy the property from the date of the
first instalment;
3.3
Dawood would be entitled to make improvements to the property without
the prior consent
of Khan;
3.4
Dawood would pay the monthly municipality account, which included the
rates and taxes on
the property;
3.5
Dawood and Khan will sign the necessary documentation to complete the
transaction and to
transfer the property into the name of Dawood.
[4]
Dawood states that Khan’s
husband passed away during October/November 2016 and that Khan
requested him to give her time to
grieve before dealing with the
formalities of the transaction.
[5]
In the meantime and in
pursuance of the oral agreement, Dawood duly paid the monthly
instalments in respect of the purchase price
and the last payment was
made on 20 November 2018. Dawood attached the cheques made out to
Khan as proof of the payment of the
purchase price.
[6]
Dawood and his family took
occupation of the property during July 2017 and are still in
occupation of the property. Dawood paid
the monthly municipal
accounts and the account is paid to date. Dawood attached the latest
municipal account as proof that the
account is paid up to date.
[7]
Dawood effected the following
improvements to the property to the value of R 1 863 400,
00:
7.1
extension of wall/outbuilding
R 450 000, 00
7.2
ceiling and downlights
R 143 400, 00
7.3
plumbing, tiling and labour
R
350 000, 00
7.4
burglar
bars
R 275 000, 00
7.5
paint and
labour
R 175 000, 00
7.6
painting of pavement
R 10 000, 00
7.7
down lights outside
R 15 000, 00
7.8
Air-conditioning
R
150 000, 00
7.9
renovation of swimming pool
R 55 000, 00
7.10
electrical
work
R 50 000, 00
7.11
replacement of geysers
R 15 000, 00
7.12
cupboards
R 85 000, 00
7.13
glass work
R
20 000, 00
7.14
marble
work
R 50 000, 00
7.15
tree felling/gardening
R 10 000, 00
7.16
renovation of roof
R 10 000, 00
[8]
The only outstanding term of
the agreement was the signing of the necessary documentation to
effect the transfer of the property
into the name of Dawood.
[9]
That would prove to be more
difficult than expected.
[10]
Dawood alleges that he had
raised the issue with Khan on various occasions without any success.
On 4 February 2021 Dawood, once
again, attempted to discuss the
transfer of the property with Khan. Khan referred Dawood to Aboo.
[11]
On 5 February 2021 Dawood sent
a sms to Khan reminding her of their telephonic conversation on 4
February 2021. Khan did not respond.
[12]
On 19 February 2021 Mr
Muthray, Dawood’s attorney of record, addressed a letter to
Khan confirming the agreement and stating
the following:
“
5.
It is furthermore our instructions that our client has approached you
on numerous occasions
in an attempt to finalise the transaction and
to have the property transferred to his name, with no success
.
6
.
On Thursday 18
February 2021
,
it
came to our client’s attention that Mr Shuabe, who acted as
your agent when the aforementioned agreement was entered into,
acquired the Title Deed to have the property transferred to an
unknown 3
rd
party.
7
In light of the above, it is our instruction to request you, which we
hereby
do, to provide our client with an undertaking that the
property will not be transferred to any 3
rd
party, other
than our client.
8.
Should we not receive such an undertaking before close of business on
Monday
22 February 2021, our client will have no other remedy than to
approach the High Court for an interdict on an urgent basis.”
[13]
On 21 February 2021 Khan
contacted Dawood’s attorney and according to Dawood’s
affidavit, the following transpired:
“
On
Sunday 21 February 2021, the 1
st
Respondent contacted my attorney and confirmed the terms of the
agreement and that she has, on advice of the 2
nd
Respondent, provided the 2
nd
Respondent with the Title Deed and the mandate to transfer the
property. She furthermore referred my attorney to the 2
nd
Respondent and indicated that she does not want to participate in
these proceedings.”
[14]
A confirmatory affidavit of Mr
Muthray is attached in confirmation of the aforesaid conversation.
[15]
Further attempts, thereafter,
to communicate with Khan and Aboo, were fruitless and prompted this
application by Dawood to protect
his rights.
Respondents’
case
[16]
Aboo deposed to the answering
affidavit whilst Khan merely signed a confirmatory affidavit
confirming Aboo’s version.
[17]
According to Aboo he entered
into a written sale agreement in respect of the property with Khan on
30 January 2017. A copy of the
written agreement is attached to
Aboo’s affidavit. Aboo professes to have no knowledge
whatsoever of the oral agreement referred
to by Dawood in his papers
and confirmed by Khan to Mr Muthray.
[18]
In terms of the agreement Aboo
purchased the property for R 1 200 000, 00, which amount
has been fully paid by him. Aboo
attached cheques issued by him to
Khan in confirmation of the payment of the purchase price.
[19]
Aboo states that although Khan
is still the registered owner of the property, he is the factual
owner and transfer of the property
into his name is pending.
[20]
Aboo then relies on the
provisions of the
Alienation of Land Act, 68 of 1981
and more
specifically on
section 2(1)
which provides that an agreement
for the alienation of land that is not in writing is null and void.
Even if there was an oral
agreement, Dawood would, according to Khan,
not be entitled to transfer because the agreement is, in terms of the
Act, null and
void
ab
initio
.
[21]
According to Aboo, Dawood
would not suffer irreparable harm if the property is transferred into
Aboo’s name as Dawood still
has a claim for damages against
Khan.
[22]
Responding to the factual
allegations, Aboo states that the payments in respect of the property
referred to by Dawood, was paid
into his account and was in relation
to a separate business transaction between them.
[23]
Aboo denies that Dawood
effected improvements at the property and once again states that
Dawood, in any event, has a right to claim
compensation for the
improvements.
[24]
Aboo admitted that Khan’s
husband passed away during October 2016 and that he has been
assisting Khan in dealing with her
husband’s estate. In respect
of Dawood’s occupation of the property Aboo states the
following:
“
It
is correct that Applicant took occupation of the property during July
2017 and was responsible for the utilities and related
expenses in
relation to the property, however this does not entitle him to
ownership of the property, and should it become necessary
for him to
vacate the property he certainly has rights which he can enforce
through normal court processes. The occupation of the
property by the
Applicant occurred with my knowledge and permission.”
[25]
Khan’s affidavit in
response to the allegations contained in Dawood’s affidavit, is
confined to the following:
“
2.
I
confirm that there was never any agreement of sale between the
Applicant and Myself. If there was any such agreement as alleged
by
the Applicant, it would have been reduced to writing. The property in
question was sold by me to the Second Respondent.
3.
I
further confirm that I received no payments in any form from the
Applicant, for whatsoever reason.”
Interim interdict
[26]
In order to succeed the
applicant needs to establish:
26.1
a
prima
facie
right;
26.2
a well-grounded
apprehension of irreparable harm if the interim relief is not granted
and the ultimate relief is eventually granted;
26.3
a balance of
convenience in favour of the granting of the interim relief; and
26.4
the absence of any
satisfactory remedy.
[See:
Setlogelo v
Setlogolo
1914 AD
221
at 227]
Prima
facie
right
[27]
The approach to a
prima
facie
right has
been described in
Webster
v Mitchell
1948(1)
SA 1186 W at 1189 as follows:
“
[T]he
right to be set up by an applicant for an interim interdict need not
be shown by a balance of probabilities. If it is “prima
facie
established though open to some doubt” that is enough…”
[28]
Bearing the aforesaid in mind,
I proceed to deal with the conflicting versions of the parties.
[29]
The version of Khan and Aboo
that serves as a denial of the applicant’s version of events
raises various questions in respect
of the probability of their
version.
[30]
Firstly, Khan’s denial
that she received any payment from Dawood coupled with Aboo’s
version that the payments he received
from Dawood were in respect of
a business transaction, does not explain why the cheques were made
out to Khan.
[31]
Surely if Dawood had to pay
Aboo for whatever reason, the cheques would have been made out in his
name. Dawood’s version that
the cheques were for the payment of
the purchase price coupled with the fact that the payments stopped
when the purchase price
was paid, is far more probable.
[32]
One would not expect that a
single business transaction would result in the payment monthly
instalments over a period of time. Aboo,
conveniently, did not give
any details of the alleged “
business
transaction”
.
[33]
The reason for Dawood’s
occupation of the property from July 2017 to date has not been
explained by either Khan or Aboo. According
to the version of Khan
and Aboo, Dawood occupied the property rent-free, which does not make
sense and more so if one takes into
account that Aboo is clearly an
astute businessman.
[34]
It is also unclear why Dawood
would pay the tax on the property if he had no claim to the property.
This is also conveniently not
explained by Khan or Aboo.
[35]
Dawood has detailed the
renovations he had effected to the property. The renovations amount
to approximately R 1, 8m. Save for a
bare denial by Aboo, Aboo does
not deal with each of the listed renovations to explain his denial.
The property, according to his
version, belonged to him since January
2017, but he is clearly not in a position to explain when each of the
renovations was done
and who paid for same.
[36]
Dawood’s version that he
effected the renovations in terms of his agreement with Khan is much
more probable.
[37]
A disturbing feature of Khan’s
version is her failure to deal with the conversation she had with
Dawood’s attorney.
Khan, although she had the opportunity to do
so, does not deny the conversation. It is significant that the
conversation confirms
Dawood’s version of events and is
undisputed on the papers.
[38]
The conversation is also in
direct conflict with the so-called written agreement that was
purported signed by Khan and Aboo on 31
January 2015.
[39]
If Khan did sell the property
to Aboo as alleged it is strange that Dawood only became aware of the
sale when he launched the present
application.
[40]
In view of the aforesaid, I am
satisfied that Dawood has established a
prima
facie
version of
facts for the purpose of the granting interim relief.
[41]
The next question is whether
Dawood has established a
prima
facie
right to the
relief claimed in the notice of motion. Mr Coetzee, Counsel for Khan
and Aboo, is quite correct that the oral agreement
in respect of the
sale of the property is void
ab
initio
for lack of
compliance with the Act.
Section 28(2)
also does not assist
Dawood, because Khan has not given transfer of the property to him as
yet.
[42]
Ms de Lange, counsel for
Dawood, submitted that Dawood has established a
lien
over the property
insofar as the renovations to the property is concerned. A
lien
is however, only a
dilatory defence to Dawood, in the event that Khan endeavours to
dispossess him of the property.
[43]
The amount of R 2 200 000,
00 that Dawood paid to Khan for the property was, however, and in
view of the fact that the
sale agreement is void
ab
initio¸
sine
qua non
.
[44]
This would entitle Dawood to
institute an enrichment claim based on the
condition
sine qua non
against
Khan.
[45]
Dawood may also institute an
enrichment claim for the renovations he has effected at the property.
[46]
In the result, Dawood has
established a
prima
facie
right to an
interim interdict to protect his right until finalisation of an
action to be instituted against Khan.
Well-grounded
apprehension of irreparable harm if the interim relief is not granted
and the ultimate relief is eventually granted
[47]
It is clear that Khan is in
the process of alienating the only security Dawood has for his claim
against her. This pertains more
specifically to his enrichment claim
in respect of the renovations he had effected at the property. Should
Khan be allowed to transfer
the property to a third party, Dawood
would lose his only security he has in respect of his aforesaid
enrichment claim.
[48]
I am satisfied that this will
cause Dawood irreparable harm as required for the purposes of an
interim interdict.
Balance of convenience
in favour of the granting of the interim relief
[49]
The balance of convenience no
doubt favours Dawood. Dawood and his family have been residing in the
property for the past almost
four years. It is their family home and
their security. Dawood has taken care of the property both
financially and physically.
[50]
Khan, to the contrary, could
suffer no prejudice. She has received the sum of R 2 200 000,
00 from Dawood and he
is taking good care of her property.
Absence of any
satisfactory remedy
[51]
Pending the finalisation of
the action to be instituted against Khan, Dawood has no other remedy
to protect his rights. Mr Coetzee
submitted that Dawood has an
alternative remedy in that he could institute a claim for damages
against Khan. In view of the conduct
of Khan amply assisted by Aboo,
I am not convinced that a claim for damages would assist Dawood.
[52]
The conduct of Khan has been
less than honourable to date and the possibility of Dawood getting
his money back through a damages
claim is cold comfort to him at this
stage. His only remedy to safeguard the monies he paid to Khan and
expended on the renovations
to the property, is the property itself.
ORDER
[53]
In the premises, I grant the
following order:
1.
The first respondent is interdicted and restrained from disposing,
dissipating
or in any manner whatsoever effect transfer of the
property situated at Erf 2133, Erasmia, Registration Division JR held
by Deed
of Transfer T 91939/1999 situated at 374 Van der Wall Street,
Erasmia, Centurion pending institution of action by the applicant
against the first respondent.
2.
Should the applicant fail to institute action within 30 days from
date of the
order, this order shall lapse.
3.
The first and second respondents are ordered to pay the costs of the
application,
jointly and severally, the one paying the other to be
absolved.
N. JANSE VAN
NIEUWENHUIZEN
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE
HEARD PER COVID19 DIRECTIVES:
3 March 2021
(Virtual hearing.)
DATE
DELIVERED PER COVID19 DIRECTIVES:
08
March 2021
APPEARANCES
Counsel
for the Applicant:
Advocate E. De Lange
Instructed
by:
Muthray & Associates
Incorporated
Counsel
for the First and Second Respondents:
Advocate SJ Coetzee SC
Instructed
by:
Ngwane Mamod Incorporated