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[2024] ZAGPPHC 914
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Dinah N.O and Another v Iginla and Others (063768/2023) [2024] ZAGPPHC 914 (10 September 2024)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
1.Reportable: No
2.Of Interest to Other Judges: No
3.Revised: No
10 September 2024
CASE NO: 063768/2023
In the matter between:
IMRAN
DINAH
N.O
(Id
No: 8[…])
First
Applicant
NOMVUYO
YVONNE SERITI N.O
(Id
No: 5[…])
Second
Applicant
and
JOSHUA
LASISI IGINLA
First
Respondent
ZIMASA
STELLA IGINLA
Second
Respondent
THE
REGISTRAR OF DEEDS FOR PROVINCE OF
GAUTENG,
PRETORIA
Third
Respondent
JUDGMENT
MASHABAAJ
[1]
For ease of reference I
will refer the parties according to their citation in the main
application (interim interdict application).
The first and second
respondents (applicants in the application for leave to appeal) have
brought an application for leave to appeal
judgment handed down by
this Court on 24 July 2024 wherein the rule nisi issued by the
Honourable Justice Tshombe on 13 July 2023
Court confirmed.
[2]
In a nutshell the
respondents as their grounds for leave to appeal submitted that the
Court and/or Presiding Judge: (a) committed
a mistake of law in
ignoring the fact that the property at issue had already been sold
and was no longer subject to the interdict
so confirmed; (b) did not
properly consider whether the applicants actually met the
requirements of an interdict; and (c) ignored
the fact that the rule
nisi should not have been issued against the respondents ex-parte,
denying them the right to be heard.
[3]
I do not deem it
necessary to deal with all the grounds raised by the respondents but
to deal with the most pertinent preliminary
question as to whether
the interim order is appealable.
[4]
Mr Sephaka who is
Counsel for the first and second respondents submitted that an
interim order is not appealable and conceded that
the confirmation of
the rule nisi is an interim order. However, according to him when a
Court has incorrectly decided a question
of law such as in this case,
it was obvious that the result violated the interests of justice and
could not be allowed to stand.
According to his argument such
violation of the interests of justice caused irreparable harm to the
wronged party.
[5]
He further submitted
that the Court erred on a point of law, which made the interim order
susceptible to being appealed on the basis
that the Presiding Judge
was led by Counsel for the applicants to believe that ownership of
the property can only pass by registration
with the third respondent,
that even though a contract of sale of the property had been
concluded with a third party prior to the
rule nisi being issued the
property was still registered in the name of the first respondent. It
was therefore still his property
and could be attached for the
possible debts that he may have incurred if the applicants succeed in
the latter application under
the main action in case
number:2023-079671.
[6]
Mr Sephaka's argument
is premised from the case of Mekwe v Geyer (A447/2017, 2595/2015)
(2018] ZAGPPHC 778 (25 September 2018) wherein
the following was said
at paragraph 20:
"The
respondent
submitted
that,
insofar
as
the
appellant
contends
that
the
court
a
quo
did
not
consider
the
question
of
law,
the
question
of
law
as
formulated
before
the
court a quo, i.e when does
ownership pass from seller to purchaser, is trite. It
was
set out by the
Supreme Court of Appeal in Leg
a
tor
McKenna Inc. v Shea and Others
2010 (1) SA 35
(SCA). The court
confirmed that the abstract theory of transfer applies to transfers
of immovable property. This entails that the
passing of ownership
occurs both on delivery (in casu, registration) coupled with
a
real agreement.
Furthermore, where there is a time lapse between the conclusion of
the sale and the transfer of the merx, the seller
must take care of
the merx during that time: Principles of Sale and Lease, E Kahn
(General Editor), 2007, page 18, para 4.1.1."
[7] Mr Sphaka's reading of the
Legator McKenna Inc
cited is incorrect and misleading in so
far as he maintained that the property in dispute was sold and that
the application for
the interdict had become moot. In paragraph 22 of
the
Legator McKenna Inc
case, the Court when dealing with the
passing of ownership under the abstract theory, said the following:
"In
accordance
with
the
abstract
theory
the
requirements
for
the
passing
of
ownership
are twofold, namely defivery
-
which in the case of
immovable property
is
effected by
registration of transfer in the deeds office
-
coupled with a
so-called real agreement or 'saaklike ooreenkoms
'."
[8]
It is clear that in
terms of the abstract theory as encapsulated in the
Legator
McKenna Inc
case
that the requirement for the passing of ownership of the property in
the current case, portion 85 (a portion of Portion 33)
of Farm
Nooitgedatcht No 435, Registration
Division
J.Q, Mogale
Local Municipality,
Gauteng
Province,
had to be effected by
registration in the Deeds Office. That hurdle has not been reached
yet in this current matter. The immovable
property has not been
registered in the deeds office and as such there has not been passing
of ownership in terms of the abstract
theory.
[9]
I find no merit in the
first and second respondents' submission that the interim order is
appealable based on an error of law. The
interim order handed down by
this Court is not final in effect and is open to alteration by the
court below. It is not definitive
of the rights of the parties and
does not have the effect of disposing of a substantial portion of the
relief claimed.
[10] Having found that the
interim order handed down by this Court is unappealable- I do not
find it necessary to decide on
other grounds for leave to appeal
which have been raised by the respondents.
[11]
In the circumstances
the following order is
made:
(a)
The leave to appeal is
dismissed.
(b)
The first respondent
(Joshua Lasisi lginla) and second respondent (Zimasa Stella lginla)
are ordered to pay costs on scale B.
MG Mashaba
Acting
Judge
of
the
High
Court
Gauteng Division,
Pretoria
APPEARANCES:
FOR THE FIRST AND SECOND
APPLICANTS: ADVOCATE CGVO SEVENSTER INSTRUCTED BYVEZI & DE BEER
INC. ATTORNEYS, PRETORIA
FOR THE FIRST AND SECOND
RESPONDENTS: ADVOCATE E SEPHEKA INSTRUCTED BY: MAHLAKOANE ATTORNEYS,
PRETORIA
DATED: 10 SEPTEMBER 2024.