REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 2024- 16548
In the matter between:
AQUEEL PATEL NO in his capacity as curator to MAHOMED DEDAT ,
ZAIBOONISHA DEDAT ,SHAHEDA DEDAT ,ZOHRA MAHOMED DEDAT ,ISMAEL
BHOJA NO Applicant
and
MOHAMED NAEEM DEEDAT First Respondent
REGISTRAR OF DEEDS Second Respondent
JUDGMENT
BADENHORST AJ:
[1] “ How sharper than a serpent’s tooth it is to have a thankless child”, wrote
Shakespeare in Act 1, Scene 4 of King Lear. Once tender hearts, now sharp like
knives, is a tale as old as time, where greed survives.
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
______________ _________________________
DATE SIGNATURE
18 Dec 2024
Page 2 of 6
[2] This case and its related litigation tell the story of family strife over inherited
assets which have spurned costly litigation that keeps inflaming emotions.
Considered in the cold light of day, the lesson is that a prudent family should
never travel the same road. It can safely be predicted that, if this family remains
on its current trajectory of inability to reach an amicable resolution of this
destructive feud, nothing will remain of their earthly feud when the bitter end is
reached.
[3] The application was launched on 12 October 2024 in the form of a so- called
“semi-urgent” matter for hearing in the urgent motion court on 3 December 2024.
Elaborate times were allowed for the filing of papers.
[4] The relief claimed is, in essence, for the status quo to be preserved in relation to
a one eighteenth fraction [“the fraction”] of an undivided share of the ownership
in a property situated at Erf 280 Fordsburg (“the property”) with the street address
41 Lillian Road, Fordsburg, Johannesburg.
[5] More particularly, the first respondent (who owns the contested fraction) is
sought to be interdicted against encumbering, alienating, bonding, selling,
leasing or in any way transacting or dealing with it pending the finalisation of an
action instituted by the applicants under case number 2024- 107194 (“the
action”). It is claimed in the action that first respondent fraudulently took transfer
of “certain undivided shares in the property”. These allegations are vehemently
disputed in the answering affidavit.
[6] An order is also requested for the Registrar of Deeds (the second respondent) to
record the proposed interim interdict against the title deed of the property to avoid
any dealings with the property by anyone in the interim.
[7] The action was launched in this court on 19 September 2024. The claims made
therein are advanced on the premise that the plaintiffs in that case (whose
interests coincide with those of the applicants) are the owners of the property
and that the defendants (including the first respondent) are obliged to transfer
the shares in the property held in their names to the plaintiffs.
Page 3 of 6
[8] On 26 April 2024, the first respondent and others (not cited herein but who also
hold undivided fractional ownership interests in the property ) launched an
application [“the April 2024 application”] , citing Mr Mahomed Dedat (a 95 year
old man) [“Mr Dedat”] who is registered as the owner of a one third share in the
property. In the April 2024 application, an order is sought to terminate the joint
ownership in the property, sell the property and divide the proceeds according to
the interests held by the respective part owners.
[9] The story begins many years earlier when Mr Dedat and his two brothers (now
deceased) became owners of one third each of undivided shares in the property.
The deceased brothers’ shares have since devolved to their respective heirs,
hence the lengthy list of litigants cited in the various proceedings.
[10] I shall refer to the two (regrettably) opposing sides as “the Dedat camp” to
describe Mr Dedat and his curator bonis (the applicant in the urgent application)
and to “the opposing camp” being the heirs and successors of the two deceased
bothers of Mr Dedat. Together, the opposing camp holds two thirds ’ interest in
the property (made up of several fractions) and Mr Dedat (via his curator) holds
the remaining one third.
[11] Since September 2024, the Dedat camp’s attorney addressed serial requests to
the opposing camp’s attorney for an undertaking pending the final determination
of the action to preserve the status quo. No undertaking was forthcoming. In fact,
on 30 Sept 2024 the attorney made it clear that no undertaking was forthcoming.
[12] The impasse eventually triggered this urgent application.
[13] The urgent application is confined to restricting all dealings by the first
respondent of whatsoever nature concerning the fraction, pending the finalisation
of the action.
[14] It is unexplained in the papers why the rest of the opposing camp had not been
joined in the proceedings. I agree with counsel for the first respondent that they
have a substantial interest in at least paragraph 3 of the notice of application (in
which the Registrar of Deeds is requested to prohibit any dealings with the
property pending the finalisation of the action). Such relief cannot be granted
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without joining them, or it is at least shown that they have waived their right to be
joined or that they abide this court ’s decision. None of these requirements is
satisfied.
[15] To overcome this problem, counsel for the applicant abandoned paragraph 3
during argument but persisted with prayer 2 against the first respondent.
[16] T he applicant states the following in support of his alleged reasonable
apprehension irreparable harm in paragraphs 45 and 46 of the founding affidavit,
in support of the request for interim relief:
“The Applicants have no protection at this stage that the First Respondent will
not on-transfer title in the property to an unsuspecting member of the public or
try to alienate title to an associated person by way of a mortgage bond so as
to frustrate the Applicants rights. First Respondent is already party to a fraud
that appears from the affidavits filed by Applicants in the main application.
There is therefore good cause to believe that he will take steps to hold onto
his share of the property by any means.
Currently, the First Respondent is both able and capable to alienate title in the
property.”
[17] The legal position of a co-owner (of an undivided share in property) is stated as
follows in Bonheur 76 General Trading (Pty) Ltd v Caribbean Estates (Pty) Ltd
2011 JDR 0182 (SCA) at paragraph [13]:
“Each co-owner of property is entitled to dispose of his share without the consent
of the others. The right of disposal is not fettered unless by agreement. Of course,
one co-owner may not use or deal with the common property as a whole without
the consent of all the co- owners. But the sale of a share, or its hypothecation,
does not affect the property as a whole.”
[18] It is accordingly correct, as stated by the applicant, that the first respondent can
alienate the fraction. But such alienation will not affect the property as a whole.
First respondent may not use or deal with the common property (as a whole)
without the consent of all the co-owners including the applicant.
Page 5 of 6
[19] That brings me to the well-known requirements for an interim interdict – proof of
a prima facie right, a reasonable apprehension of harm, absence of an alternative
remedy and that the balance of convenience favours the relief claimed by
applicant.
[20] The application fails to establish these requirements: the applicant has no right
to interdict the first respondent from encumbering, alienating, bonding, selling,
leasing or in any way transacting or dealing with his (fractional) share in the
property. The allegation of fraud is contested and I am unable to find that the
alleged right has been prima facie established upon the application of the test in
Webster v Mitchell 1948 (1) SA 1186 (W) at 1189- 1190 and Gool v Minister of
Justice and Another [1955] 3 All SA 115 (C).There can in any event be no harm
to the applicant, because – as a matter of law – none of the perceived actions by
first respondent can affect the property as a whole. It also follows that there is no
balance of convenience in applicant’s favour and the question of an alternative
remedy does not arise. Tellingly, the applicant does not allege that the first
respondent has threatened to or has the power to do anything that will affect the
property as a whole.
[21] The following order is issued:
The application is dismissed with costs.
___________________________
BADENHORST AJ
JUDGE OF THE HIGH COURT
JOHANNESBURG
For the Applicant Adv Z Khan , instructed
by Mangera Attorneys
For the First Respondent Adv L Grobler, instructed by Joselowit z &
Andrews Attorneys