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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL DIVISION, PIETERMARITZBURG
CASE NO: 14501/23P
In the matter between:
BUZTRADE 102 CC Applicant
(Registration No: 2001/0 76438/23)
and
ROOKMONEY CHETTY First Respondent
ROOKMONEY CHETTY N.O. Second Respondent
(In her capacity as Executrix for the
Estate Late Raymond Perumal Chetty
PMB Master’s Ref: 5183/2002)
ESSOP OSMAN Third Respondent
AYESHA BIBI KHAN Fourth Respondent
AYESHA BIBI KHAN N.O. Fifth Respondent
(In her capacity as Executrix for the
Estate Late Vasudevan Chetty
Durban Master’s Ref: 12962/202 2)
THE REGISTRAR OF DEEDS : Sixth Respondent
PIETERMARITZBURG
MASTER OF THE HIGH COURT : Seventh Respondent
PIETERMARITZBURG
MASTER OF THE HIGH COURT : Eighth Respondent
DURBAN
SHERIFF OF THE HIGH COURT : Ninth Respondent
PIETERMARITZBURG
___________________________________________________ ______ __________
Coram: Nicholson AJ
Heard: 11 October 2024
Delivered: 31 January 2025
ORDER
1. That the order of the Honourable Court dated 16 and 24 April 2007 under
Case No: 3297/2007, granting and confirming the rule nisi, that the first and
second respondents be interdicted and restrained from alienating,
encumbering or any way, manner or form disposing of their rights, title and
interest in the property described as Portion 8[...], S[...] R[...] , Registration
Division FT, Province of KwaZulu -Natal also known as 1[...] W[...] H[...] Road,
S[...] R[...] , Mkondeni, Pietermaritzburg, KwaZulu -Natal ( ‘the property ’) to any
other person and/or entity, be and is hereby set aside.
2. The sixth respondent and/or the ninth respondent is ordered to remove the
interdict registered against the property under case no : 3297/2007 and
interdict number: I-1193/2007I.
3. The fourth and fifth respondents are directed to sign all transfer
documentation in their totality, if necessary, to effect transfer of the property
into the name of the applicant.
4. If the fourth and fifth respondents fail to comply with paragraph 3 above, the
sheriff of this court , be and is hereby authorised to sign all transfer documents
for and behalf of the fourth and fifth respondents in order to affect the transfer
of the property into the name of the applicant.
5. That the costs of this application be paid by the third and fifth respondents on
scale C of the high court tariff, and such costs to include the costs of senior
counsel.
JUDGMENT
Nicholson AJ:
[1] The matter that serves before me has three competing purchase and sale
agreements for the same property. Two of the agreements were signed by the same
seller to two different purchasers . A purchaser to one of the sale agreement s, the
third respondent, obtained a final interdict, under case No: 3297/2007 , dated 16 and
24 April 2007 , that interdicts and restrains the first and second respondents from
alienating, encumbering or disposing of their rights, title and interest in the property
described as Portion 8[...] S[...] R[...] , Registration Division FT, Province of KwaZulu -
Natal also known as 1[...] W[...] H[...] Road, S[...] R[...] , Mkondeni, Pietermaritzburg
(‘the property ’) to any other person or entity (‘the interdict ’).
[2] On 9 September 2008, a fter the interdict was granted , Mr V Chetty
(represented by the fifth respondent herein) brought an application, which was
decided in his favour , that found that the sale agreement between the first and
second respondent on the one hand, and the fifth respondent on the other hand, is
valid.
[3] In the circumstances , before me is an application where the applicant seeks
an order setting aside the interdict, together with further relief for the property to be
transferred into its name (for convenience, I shall refer to this as ‘auxiliary relief ’).
Background and chronology
[4] Given the various parties and role player s in this application, for context, it is
necessary to provide a background and chronology of events , to navigate the facts
of this application.
[5] On or about 30 June 2002, the first respondent ( ‘the first respondent ’ or ‘Ms R
Chetty ’), in her personal capacity and in her capacity as executrix (second
respondent), entered a purchase and sale agreement with Mr Vasudevan Chetty ( ‘Mr
V Chetty ’ or ‘Vasi’), wherein the property was sold to Mr V Chetty.
[6] On 1 April 2006, notwithstanding having signed a purchase and sale
agreement with Mr V Chetty, the second respondent signed a second purchase and
sale agreement with Mr Essop Osman, the third respondent herein, for the same
property .
[7] On 11 November 2006, Mr V Chetty , without taking transfer of the property,
signed a purchase and sale agreement selling the property to Buztrade 102 CC , the
applicant herein .
[8] On 16 April 2007, the third respondent obtained an interdict under case No:
3297/2007 ( ‘the interdict ’) against the second respondent , interdicting the transfer of
the property. The interdict was confirmed on 24 April 2007.
[9] On 2 1 May 2007, Mr V Chetty , filed an application seeking a declarator that
the purchase and sale agreement between himself and the first and second
respondents, dated 1 April 2006, be declared valid.
[10] On 9 September 2007, judgement was entered in favour of Mr V Chetty,
concluding that, the purchase and sale agreement between himself and the first and
second respondents, dated 1 April 2006, is valid.
[11] In or about May 2009, the third respondent applied for leave to appeal and
that was dismissed. Accordingly, the legal situation is that the purchase and sale
agreement , dated 1 April 2006, between Mr V Chetty and the first and second
respondents is valid.
Applicant’s case
[12] Applicant’s case is that, since the purchase and sale agreement between Mr
V Chetty and the first and second respondents, dated 1 April 2006 is valid, the
purchase and sale agreement for the property between the third respondent and
second respondent is therefore invalid ; accordingly, the third respondent has no right
to the interdict , which accordingly, should be set aside; and the applicant, therefore,
is entitled to the auxiliary relief.
Case of the third respondent
[13] Notwithstanding the lapse of time of approximately 15 years between the
granting of the interdict and the finding that the sale agreement between Mr V Chetty
and the fourth respondent is valid ; and having failed in its application to obtain leave
to appeal against the judgement , the third respondent opposes the setting aside of
the interdict and the property be ing registered in the name of the applicant.
[14] I have carefully perused the answering affidavit of the third respondent, its
heads of argument , and I have carefully listened to Ms Singh , who appeared on
behalf of the third respondent. Various allegations of fraud and other inappropriate
behaviour have been made, which are not pregnant on the papers before me, but
argued from the bar ; or those allegations amount to speculation and conjecture .
[15] However, the highwater mark of the respondent’s opposition appears to be
that:
(a) Notwithstanding the September 2007 judgement, the sale agreement between
the first respondent and himself is valid; and
(b) Considering the property was never transferred into the name of Mr V Chetty,
the purchase and sale agreement between Mr V Chetty and the applicant , is not
valid.
[16] In his answering affidavit, opposing the relief sought by the applicant ,
notwithstanding the fact that in the September 2007 judgement , where it was found
that the purchase and sale agreement between the third respondent and the second
respondent being invalid, the third respondent attempts to demonstrate the validity of
the said agreement.
[17] In Economic Freedom Fighters v Speaker of the National Assembly ,1 the
Constitutional Court opined:
‘No decision grounded on the Constitution or law may be disregarded without
recourse to a court of law. To do otherwise would “amount to a licence to self -help” .’
(footnote omitted)
[18] In Department of Transport v Tasima (Pty) Limited ,2 the Constitutional Court
concluded:
‘This reading of section 165(5) accepts the Judiciary’s fallibilities. As explained in the
context of administrative decisions, “administrators may e rr, and even . . . err
grossly.” Surely the authors of the Constitution viewed Judges as equally human.
The creation of a judicial hierarchy that provides for appeals attests to this
understanding. Like administrators, Judges are capable of serious error.
Nevertheless, judicial orders wrongly issued are not nullities. They exist in fact and
may have legal consequences .’ (footnotes omitted)
[19] In the premises, it is trite that court orders remain operative , valid and
enforceable until reviewed or set aside by a court of competent jurisdiction , and until
that is done , the court order must be obeyed, even if it is wrong . Accordingly, I am
bound by the September 2007 judgement and therefore, cannot disregard the
findings therein, or entertain any submissions that suggests, or ask me to hold, that
those findings are wrong. Accordingly, the third respondent’s submissions that
suggests the sale agreement is valid are irrelevant.
[20] In Tomlinson v Tomlinson N O,3 the court found:
‘[14] Against that background Mr Chetty’s argument for proposition (b) is based
essentially on paragraph 12 of the judgment in Booysen . That paragraph follows the
1 Economic Freedom Fighters v Speaker of the National Assembly and others [2016] ZACC 11; 2016
(3) SA 580 (CC); 2016 (5) BCLR 618 (CC) para 74.
2 Department of Transport and others v Tasima (Pty) Ltd [2016] ZACC 39; 2017 (2) SA 622 (CC);
2017 (1) BCLR 1 (CC) para 182.
3 Tomlinson and another v Tomlinson NO and others [2021] ZAKZDHC 8 .
learned judge’s exposition of the principle which is Mr Chetty’s proposition (a). It
reads as follows.
“From the above, it is more than plain that the late Joseph Booysen, in the
present matter, did not gain ownership of the whole joint estate upon the
death of his wife, Dora Booysen. He therefore had no legal capacity to enter
into the disputed sale agreement with the first and the second respondents
regarding the immovable property. It was the prerogative of the executor, the
fourth respondent, to do so. The uncontroverted evidence is that the estate of
the late Dora Booysen is not finalised, and the first and final liquidation and
distribution account has not been approved, for reasons advanced by the
executrix. The sale was invalid ab initio and falls to be set aside. ”
[15] Given the gaps in my knowledge of the precise terms of the agreement under
consideration in Booysen , I cannot comment on the ultimate conclusion reached in
that case. However if, as appears to be the case, the learned judge intended to
convey that solely because Mr Booysen had not yet acquired ownership of the
property he lacked the legal capacity to conclude an agreement for its sale, I cannot
agree. The point of my departure from the principle stated in paragraph 12 of
Booysen is simply stated in A J Kerr, The Law of Sale and Lease 3 ed (2004) at
page 7.
“Those new to the subject [the subject the learned author is speaking about is
the law of sale] are often surprised to learn that someone else can sell their,
or anyone else’s, property. The tendency is to assume that, apart from
questions of agency, only the owner of a thing can sell it. This again overlooks
the fact that in entering into a contract one is undertaking an obligation or
obligations, not doing what an obligation requires. So if A sells B’s property to
C the resultant legal position is that A is obliged to make B’s property
available to C. He will therefore attempt to obtain it. If he succeeds, he can
make it available to C and the contract is performe d. If B will not let him have
it, he (A) fails to perform and is in breach of contract. In such circumstances C
has an action against A for damages for breach of contract. It is not so
uncommon as may be thought for someone to sell someone else’s property. ”
[Footnotes omitted]
. . .
[21] . . . There is no requirement in our law that a deed of sale of immovable property
must be signed by the owner or by someone authorised to sign on the owner’s
behalf as seller .’
[21] In the premises, it is apparent that one does not have to be the owner of the
property to enter a valid purchase and sale agreement in order to sell the property.
Accordingly, the proposition that the sale agreement between Mr V Chetty and the
applicant is invalid because Mr V Chetty could not sell a property that is not in his
name , is unsustainable . In the circumstances , on the version of the third respondent,
I am neither able to find any reason in law, nor in the facts , that prevent s the interdict
from being set aside , nor am I able to find any reason that prevents the auxiliary
relief sought by the applicant, being granted.
Case of the fourth and fifth respondents
[22] Mr Tucker, on behalf of the fourth and fifth respondents, admits the interdict
should be set aside ; but raises the following grounds in opposition to the auxiliary
relief:
(a) The fifth respondent is a misjoinder;
(b) There are dispute s of fact;
(c) The applicant has taken occupation of the property but has never paid
occupational rent; and
(d) While not taking issue with the purchase and sale agreement between Mr V
Chetty and the applicant , the fourth respondent denies that a case has been made
out in the founding affidavit for the property to be transferred to the applicant ;
because the founding affidavit neither , alleges or sets out the suspensive conditions
contained in the purchase and sale agreement , to either put up security or pay the
purchase price, nor does the founding affidavit provide evidence that the se
suspensive conditions were fulfilled. In the circumstances, the agreement of
purchase and sale is now a nullity.
[23] On that basis, Mr Tucker argues , the papers are excipiable , and therefore , the
prayer for the auxiliary relief, should be dismissed.
Misjoinder
[24] The point on misjoinder can be dismissed out of hand, because the fifth
respondent is not only the executor of the fourth respondent , but also his widow.
Accordingly, she has a personal interest in the outcome of this matter. Furthermore,
within the file I have come across letters that are written in her personal capacity.
[25] Furthermore, a lthough this matter was raised as a point in limine , there were
no further applications thereafter to prosecute the misjoinder. The next time it was
raised was in answer to the applicant.
[26] In Rabinowitz and Another NNO v Ned -Equity Insurance Co Ltd and Another4,
the court found that:
‘The objection on the ground of misjoinder should be taken in limine and if not then
taken , cannot ordinarily be raised subsequently. In the present case the first
defendant did not take the objection initially and did not make application under Rule
10 (5) for an order that separate trials should be held. In my opinion the first
defendant cannot raise the point now after the trial has been concluded except for
questions of interest and costs. ’
Disputes of fact
[27] In National Director of Public Prosecutions v Zuma ,5 Harms DP avows :
‘Motion proceedings, unless concerned with interim relief, are all about the resolution
of legal issues based on common cause facts. Unless the circumstances are special
they cannot be used to resolve factual issues because they are not designed to
determine probabilities. It is well established under the Plascon -Evans rule that
where in motion proceedings disputes of fact arise on the affidavits, a final order can
be granted only if the facts averred in the applicant's (Mr Zuma’s) affidavits, which
have been admitted by the respondent (the NDPP), together with the facts alleged
by the latter, justify such order. It may be different if the respondent’s version
consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is
palpably implausible, far -fetched or so clearly untenable that the court is justified in
rejecting them merely on the papers. ’ (footnotes omitted)
4 Rabinowitz and Another NNO v Ned -Equity Insurance Co Ltd and Another 1980 (3) SA 415 (W) at
page 419 E to G
5 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA); 2009 (4)
BCLR 393 (SCA) para 26.
[28] It is worth noting that while both the third respondent, and the fourth and fifth
respondents have alleged disputes of facts, the disputed facts, but for conjecture,
have not been properly articulated or demonstrated in the papers. That being said, i n
the resolution of a dispute of facts, the star ting point is the common cause facts. The
common cause facts are: a valid purchase and sale agreement between the first and
second respondents and the fifth respondent, and a concession that the purchase
and sale agreement between the fifth respondent and the applicant is valid, but for a
challenge on the suspensive conditions therein .
[29] The resolution of the challenge on the suspensive conditions , in my view , is a
legal question; and therefore, decipherable on the papers. In the premise s, there is
no dispute of fact that requires the matter to be dismissed or adjourned , for oral
evidence.
[30] In reply, Mr Padayachee brought to my attention lodgement documents , used
by the conveyancer to transfer the property , which is an annexure to the founding
affidavit, and referred to in the replying affidavit . The effect of this document
demonstrates that the conveyancer would not have proceeded with the lodgement of
the change of title for the property , without being satisfied that the purchase price
had been secured.
[31] While I agree that on perusal of the founding affidavit, it does not appear that
a case has been made that the resolutive clause has been activated, however, the
applicant’s case was supplemented in the replying affidavit. I am mindful that this is
not the usual practice in application proceedings, however, the evidence is before
me, and it would not be in the interests of justice to ignore same, for the sake of
procedure. As such, it is apparent that a case has been made out that the resolutive
clause has been activated.
[32] In Living Hands v Ditz6 set out the general principles in exception proceedings
as follows:
6 Living Hands v Ditz 2013 (2) SA 368 at 374 G
‘(a) In considering an exception that a pleading does not sustain a cause of action,
the court will accept, as true, the allegations pleaded by the plaintiff to assess
whether they disclose a cause of action.
(b) The object of an exception is not to embarrass one’s opponent or to take
advantage of a technical flaw, but to dispose of the case or a portion thereof in an
expeditious manner, or to protect oneself against an embarrassment which is so
serious as to merit the costs even of an exception .
(c) The purpose of an exception is to raise a substantive question of law which may
have the effect of settling the dispute between the parties. If the exception is not
taken for that purpose, an excipient should make out a very clear case before it
would be allowed to succeed.
(d) An excipient who alleges that a summons does not disclose a cause of action
must establish that, upon any construction of the particulars of claim, no cause of
action is disclosed.
(e) An over -technical approach should be avoided because it destroys the
usefulness of the exception procedure, which is to weed out cases without legal
merit.
(f) Pleadings must be read as a whole, and an exception cannot be taken to a
paragraph or a part of a pleading that is not self -contained.
(g) Minor blemishes and unradical embarrassments caused by a pleading can and
should be cured by further particulars. ’
[33] In the premises, considering Living Hands and the fact that the case was
supplemented in reply, I do not consider the applicant’s case to be excipiable .
[34] For completeness, I must add that the fact that the applicant has not paid
occupational rental is not a defence to the relief sought by the applicant. The
effected party is free to pursue that issue separate from these proceedings.
Accordingly, I dismiss that point out of hand.
[35] On the facts, the interdict does not protect any rights that are protectable in
law, and therefore, serves no purpose but to impede the rights of the applicant.
Accordingly, the interdict must be set aside.
[36] I find no reason that the normal rule that costs should follow the result be
applied in this matter.
Order
[37] In the result, I make the following order :
1. That the order of the Honourable Court dated 16 and 24 April 2007 under
Case No: 3297/2007, granting and confirming the rule nisi, that the first and
second respondents be interdicted and restrained from alienating,
encumbering or any way, manner or form disposing of their rights, title and
interest in the property described as Portion 8[...], S[...] R[...] , Registration
Division FT, Province of KwaZulu -Natal also known as 1[...] W[...] H[...] Road,
S[...] R[...] , Mkondeni, Pietermaritzburg, KwaZulu -Natal (‘the property’) to any
other person and/or entity, be and is hereby set aside.
2. The sixth respondent and/or the ninth respondent is ordered to remove the
interdict registered against the property under case no: 3297/2007 and
interdict number: I -1193/2007I.
3. The fourth and fifth respondents are directed to sign all transfer
documentation in their totality, if necessary, to effect transfer of the property
into the name of the applicant.
4. If the fourth and fifth respondents fail to comply with paragraph 3 above, the
sheriff of this court, be and is hereby authorised to sign all transfer documents
for and behalf of the fourth and fifth respondents in order to affect the transfer
of the property into the name of the applicant.
5. That the costs of this application be paid by the third and fifth respondents on
scale C of the high court tariff, and such costs to include the costs of senior
counsel.
NICHOLSON
Acting Judge of the High Court
KwaZulu -Natal Division, Pietermaritzburg
Date heard : 11 October 2024
Handed down : 31 January 2025
APPEARANCES
Counsel for the applicant Advocate Padayachee SC
Instructed by: Srish Partab Inc
Block B, First Floor, Suite 7B
21 Cascades Crescent
Chase Valley
Pietermaritzburg
Ref: S PARTAB/M0 0082
For the first and second
respondents: Appeared in person
Counsel for the third
respondent: Advocate Singh
Instructed by: Ozayr Latiff and Associates
14 Thomas Street
Pietermaritzburg
KwaZulu -Natal
Ref: Ozayr/Essop Osman/31 -10-23-mar-as
Counsel for the fourth and
fifth respondents: Advocate Tucker
Instructed by: Ben Padayachee Attorneys
4 Munn Road
Ottawa
KwaZulu -Natal
Ref: MR B. PADAYACHEE/K71
No appearance for the sixth, seventh, eighth and ninth respondents