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[2024] ZAECELLC 35
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Vumazonke and Another v Rheeder and Others (835/2024) [2024] ZAECELLC 35 (16 July 2024)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT COURT)
Case.
No. 835/2024
In
the matter between:
MONWABISI
VUMAZONKE
First
Applicant
SISIPHO
NQABISA VUMAZONKE
Second
Applicant
and
SANDRA
ANN
RHEEDER
First
Respondent
JO-
ANN
PALMER
Second
Respondent
THE
REGISTRAR OF DEEDS: KING WILLIAM’S TOWN
Third
Respondent
JUDGMENT
BODLANI
AJ
[1]
The
applicants challenge, in Part B of this application, the agreement of
sale of the property known as Erf No. 1[...] situated
at No. 1[...]
W[...] Drive, East London (“the property”), concluded by
and between the first and second respondents.
They also seek an order
directing the first respondent to take all the necessary steps to
transfer the property to them.
[2]
To protect the utility of the relief sought in Part B, they urgently
apply for an interdict against the respondents taking steps
to effect
the registration of transfer of the property. Urgency was not placed
in dispute. In any event, I am satisfied that the
application is
sufficiently urgent as to warrant being heard on truncated
timeframes. This judgment therefor, concerns the applicants’
entitlement to interdictory relief. To appreciate the basis for this
application, a brief exposition of the facts is called for.
[3]
In March 2024, the first respondent engaged estate agents Jawitz
Properties and Century 21 for the sale of the property. The
second
respondent offered to purchase the property in the amount of
R3 300 000.00 (three million, three hundred thousand
rand).
Some of the terms of the offer were that for her to pay the purchase
price, she would secure a bond of R2 500 000.00
(two
million, five hundred thousand rand) from a financial institution and
the remainder, in the amount of R800 000.00 (eight
hundred
thousand rand), would come from the proceeds of the sale of another
property (“second property”).
[4]
The first respondent accepted the second respondent’s offer
subject to two material suspensive conditions. The first concerned
the second respondent obtaining, in her favour, the approval of a
loan in the amount of R2 500 000.00 (two million, five
hundred thousand rand) from a financial institution, within 30
(thirty) days of acceptance of the offer. The second concerned the
sale of the second property. However, in the event of the first
respondent receiving an unconditional and acceptable offer for
the
property prior the fulfilment of the suspensive conditions, she would
be entitled to give written notice to the second respondent
to waive
the suspensive conditions within 72 hours of such written notice
being given.
[5]
On 06 April 2024, the applicants made an offer to the respondent for
the purchase of the property (“the second offer”).
The
second offer was made subject to a financial institution approving a
loan of not less that R3 300 000.00 (three million,
three
hundred thousand rand) in favour of the applicants before 03 May
2024. This condition was fulfilled on 16 April 2024 so that
then, a
full and effective unconditional offer by the applicants came into
being. The applicants presented this offer to the first
respondent.
[6]
In possession of an unconditional offer by the applicants, on 18
April 2024 the first respondent gave written notice to the
second
respondent to waive the suspensive conditions contained in her offer,
within 72 hours. Absent that waiver, the first respondent
would be
entitled to go ahead with the sale of the property to the applicants.
By extension, this means the second respondent would
have lost the
opportunity to purchase the property. The 72-hour period was meant to
expire at 12h00 on 19 April 2024. Before 12h00
on 19 April 2024 the
second respondent informed the first respondent that she was waiving
all the suspensive conditions (“the
waiver”).
[7]
Notwithstanding the waiver, the applicants contend that the second
respondent did not, in fact, waive the suspensive conditions.
She
misled the first respondent into believing she did when in fact she
knew that there was no waiver in place, contend the applicants.
They
base this contention on the allegation that simultaneously with the
provision of the waiver she was still communicating with
Nedbank with
a view to secure and/or finalize the grant, in her favour, of a bond
in the amount of R3 300 000.00 (three million,
three hundred
thousand rand) and/or that certain conditions on which she was to be
granted the bond were still being worked on.
This, the applicants
allege is the fraudulent misrepresentation the second respondent
perpetuated to defeat their agreement of
sale with the first
respondent.
[8]
There is indeed correspondence that shows that beyond 12h00 on 19
April 2024, the second respondent was still in communication
with
Nedbank. The correspondence also shows that the issue concerned in it
is the grant, in the second respondent’s favour
of a bond in
the amount of R3 300 000.00 (three million, three hundred
thousand rand) and/or that certain conditions on which
she was to be
granted the bond were still being worked on. This, the applicants say
indicates that she was dishonest when she communicated
the waiver
because she knew as she was communicating the waiver that she did not
have the full purchase price for the property.
[9]
The issue, therefore, is not whether the second respondent waived the
suspensive conditions or not. It is whether the waiver
she
communicated to the first respondent was honest and therefore not
intended to mislead in view of the correspondence that shows
that
beyond 12h00 on 19 April 2024 there were ongoing engagements on the
issue concerning the grant, to her, of a bond in the amount
of R3 300
000.00 (three million, three hundred thousand rand) and/or certain
conditions on which she was to be granted the
bond were still being
worked on.
[10]
Upon enquiring as to what right, exactly, were the applicants seeking
to protect. Mr. Tshikila who appeared for the applicants
argued that
the right sought to be protected was the right to acquire property.
This right is a subset of the right in section
25(1) of the
Constitution, 1996 – the right not to be arbitrarily deprived
of property. It is against the backdrop of the
above facts that this
application falls to be determined.
[11]
The requisites
to
claim an interim interdict are well established, they are:
a)
a
prima
facie
right;
b)
a well-grounded apprehension of harm if the interim relief is not
granted and the ultimate relief is eventually granted;
c)
absence of an alternative satisfactory remedy; and
d)
the balance of convenience favours the grant of the interim
interdict.
[12]
These
requisites should not be considered separately or in isolation but in
conjunction with one another to determine whether the
court should
exercise its discretion in favour of the grant of the interim relief
sought.
[1]
Unlike other civil
matters, the requirement of a
prima
facie
right
does not have to be established on a balance of probabilities.
Rather, since the application is merely interlocutory and the
effect
of granting thereof only temporary and not finally decisive of either
party’s rights, the courts grant interim interdicts
upon a
degree of proof less exacting than that required for a final
interdict. The right to be set up by an applicant for a temporary
interdict must be
prima
facie
established though open to some doubt.
[2]
[13]
The
prima
facie
right
a claimant is required to establish is not the right to approach a
court for relief. It is a right to which, if not protected
by an
interdict, irreparable harm would ensue.
[3]
The stronger the prospects of success for the applicant, the less the
need for the balance of convenience to favour him; the weaker
the
prospects of success, the greater the need for the balance of
convenience to favour him.
[4]
[14]
Have the applicants been able to show a
prima
facie
right, even if open to some doubt? They have. That the right to
acquire
and dispose of property is protected in terms of s 25 of the
Constitution
was
considered in
Ex
Parte Chairperson of the Constitutional Assembly,
[5]
in
the following terms:
“
[72]
Several recognised democracies provide no express protection of
property in their
constitutions
or bills of rights.54 For the remainder, a wide variety of
formulations of the
right
to property exists. Some constitutions formulate the right to
property simply in a
negative
way, restraining state interference with property rights. Other
constitutions
express
the right in a positive way, entrenching the right to acquire and
dispose of property. A further formulation frequently
used is to
state that “private property is inviolable” subject to
expropriation in certain circumstances. This survey
suggests that no
universally recognised formulation of the right to property exists.
The provision contained in the NT, which is
a negative formulation,
appears to be widely accepted as
an
appropriate formulation of the right to property. Protection for the
holding of property is implicit in NT 25. We cannot uphold
the
argument that, because the formulation adopted is expressed in a
negative and not a positive form and because it does not contain
an
express recognition of the right to acquire and dispose of property,
it fails to meet the prescription of CP II.”
[16]
This being the case, the right sought to be protected is a clear
right. It vests on everyone. It is impossible to see how the
applicants are excluded from the operation of the protections that
are accorded everyone in s 25 of the Constitution. There are
implications for this insofar as the applicants are required to show
that they apprehend irreparable harm if the interdict is not
granted.
The
applicants having established a clear right, as distinct from a
prima
facie
right
open to some doubt, their apprehension of irreparable harm need not
be established.
[6]
[17]
In determining where the balance of convenience lies, the Court has
to weigh the prejudice to the applicants if the interlocutory
interdict is not granted against the prejudice to the second
respondent if it is. The stronger the prospects of success, the less
the need for the balance of convenience to favour the applicant, the
weaker the prospects of success, the greater the need for
the balance
of convenience to favour him.
[7]
I can conceive of no harm to the second respondent if the interdict
is granted. To the applicants, if the interdict is not granted,
they
will lose to opportunity to purchase the property in issue. It
follows that the applicants have not an alternative remedy.
[18]
When I consider, as I am required to,
[8]
the
facts put up by the applicant, together with the facts set out by the
respondent which the applicant cannot dispute, and consider
whether,
having regard to the inherent probabilities and the ultimate onus,
the applicant should on those facts obtain final relief
at the trial
– and, having considered the facts set up by the respondent –
I am in no position to say serious doubt
is thrown upon the case of
the applicant. Thus, I cannot, in these circumstances, no grant
interim interdictory relief.
[19]
The second respondent applied for the striking out of certain
allegations made in the founding affidavit. The bases for the
application are that the allegations in issue are scandalous,
defamatory and vexatious. She contended further that the various
allegations sought to portray her as being dishonest and unethical.
When regard is had to the cause of action, it being that the
waiver
communicated by the second respondent was communicated with the aim
deceitfully to defeat the sale between the applicants
and the first
respondent, it is difficult to conceive of how else without
suggesting fraudulent conduct on the part of the second
respondent
would the applicants have presented their case.
[20]
I am not persuaded that the grant of an order striking out certain
allegations made in the founding affidavit would be appropriate
in
these circumstances. That said, as I will with the costs of the
application for interdictory relief, I do not grant the costs
of the
application for the striking out. I intend to reserve them. If the
second respondent succeeds in Part B of the relief sought
in the
notice of motion, it will mean that there was no justification for
the applicant to suggest unbecoming conduct on her part.
Were such to
eventuate, in my view, it would entitle the second respondent to a
favourable order as to the costs of the application
to strike out.
However, I do not decide the issue.
[18]
In the result, the following order is made:
Leave
is granted to the applicants to bring this application on an urgent
basis.
Pending
a final determination of the application contemplated in Part B of
the notice of motion dated 13 May 2024, the respondents
are
interdicted from effecting the transfer of the
property
known as Erf No. 1[...] situated at No. 1[...] W[...] Drive, East
London.
3. The
application for the striking
out of certain
allegations made in the founding affidavit is dismissed.
4. The
costs of this application, together with the costs incurred in the
application to strike out, shall be payable in and together
with the
costs consequent upon the hearing of the relief contemplated in Part
B of the notice of motion.
A
M BODLANI
ACTING
JUDGE OF THE HIGH COURT,
EASTERN
CAPE DIVISION.
APPEARANCES:
For
the Applicant
:
MR. S. TSHIKILA
Instructed
by
:
MESSRS CHITHA INCOPORATED ATTORNEYS
Attorneys
for the Applicant
462
Rupert treet
Brooklyn
PRETORIA
Email
:
thobile@chithattorneys.co.za
Tel
: (012) 304 0147
c/o.
NCAME ATTORNEYS
No.
15 M Edge Road
Beacon
Bay
EAST
LONDON
Tel
: (043) 050 4088
Email
:
pncameattorneys@gmail.com
For
the 1
st
Respondent
:
No appearance
For
the 2
nd
Respondent
:
MS. K. WATT
Instructed
by
:
MESSRS DRAFKE FLEMMER & ORSMOND
Attorneys
for the Second Respondent
Quenera
Park
No.
12 Quenera Drive
Beacon
Bay
Tel:
(043) 722 4210
Email
:
angus@drakefo.co.za
Ref
: Angus Pringle
Heard
:
11 June 2024
Delivered
:
16 July 2024
[1]
Eriksen
Motors (Welkom) Ltd v Protea Motors Warrenton
1973
(3) SA 685
(A)
at
691F;
Olympic
Passenger Service (Pty) Ltd Ramalgan
1957 (2) SA 382
(D) at 383E – F;
Beecham
Group Ltd v B-M Group (Pty) Ltd
1977 (1) SA 50
(T) at 54
[2]
Webster
v Mitchell
1948
(1) SA 1186
(W) at 1189.
[3]
National
Treasury v Opposition to Urban Tolling Alliance
2012
(6) SA 223
(CC), para 50.
[4]
Olympic
Passenger Service, supra
at
383D – F. Also see
SA
Securitisation (Pty) Ltd v Chesane
2010 (6) SA 557
(GSJ) at 564D – F.
[5]
Ex
Parte Chairperson of the Constitutional Assembly: In Re
Certification of the Constitution of the Republic of South Africa
,
1996 (CCT 23/96)
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10)
BCLR 1253
(CC) (6 September 1996).
[6]
Setlogelo
v Setlogelo
1914
AD 221
at 227;
L
F Boshoff Investments (Pty) Ltd v Cape Town Municipality
1969
(2) SA 256
(C) at 267C.
[7]
Olympic
Passenger Service, supra
at
383D – G;
Eriksen
Motors, supra
at
691F – G;
Knox
D’Arcy Ltd v Jamieson
1966
(4) SA 348
(A) at 361D – F.
[8]
Webster
supra
as
amplified and qualified by
Gool
v Minister of Justice
1955 (2) SA 682
(C) at 688D – E and
Godbold
v
Tomsom
1970
(1) SA 61
(D) at 63C – D.