SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA
CASE NUMBER : 1248/2025
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE 27/03/2025
SIGNATURE
PORTIA SITHOLE APPLICANT
and
MPUMELELO GLAD MESHACK NGWENYA FIRST RESPONDENT
THE SHERIFF OF THE HIGH COURT SECOND RESPONDENT
MBOMBELA
SA HOME LOANS THIRD RESPONDENT
VILJOEN AND WELLS ATTORNEYS FOURTH RESPONDENT
THE REGISTRAR OF DEEDS, MPUMALANGA FIFTH RESPONDENT
__
JUDGMENT
__
Shai AJ
Introduction
[1] This is an application brought on an urgent basis by the applicant.
[2] The applicant seeks for a relief, inter alia, in the following terms:
2.1 That the first respondent be ordered to sign all documentation within 48 hours
after the granting of this order, necessary to ensure the registration of the transaction
and transfer of the property into the applicant’s name in the office of the fifth
respondent and to enable the fourth respondent to proceed with the lodging of the
papers to effect the transfer of the property into the name of the applicant by the fifth
respondent.
[3] the application is opposed by the first respondent.
History of the litigation
[4] The applicant entered into a sale agreement with the first respondent on 29
October 2023 , in terms whereof the first respondent sold to the applicant and the
applicant bought from the first respondent an immovable property situated at [...]
K[...] Street, Sunset View, Stonehenge Extension 1, Nelspruit.
[5] According to the sale agreement, read with its addendum, the parties agreed
as follows:
5.1 The applicant will take occupation of the property on 1 February 2024, after
the loan has been approved.
5.2 The occupational rent would be R12 500-00 per month.
5.3 The risk in respect of damage and/or destruction of the property would pass to
the purchaser on the date of registration of transfer.
5.4 The purchaser would be responsible for all water and electricity usage from
date of occupation until date of registration , payable directly to the seller.
[6] Pursuant to the terms of the agreement: -
6.1 The applicant obtained approval for her loan on 3 November 2023. The loan
was conditional on the applicant selling her existing immovable property. She duly
complied with this condition.
6.2 Guarantees were issued on 15 January 2024.
6.3 The applicant paid the agreed rental of R12 500, and duly paid for water and
electricity.
[7] First respondent encountered the following problems:
7.1 His SPLUMA application was rejected on 18 January 2024 as there was an
alleged encroachment on the property of his neighbour;
7.2 Applicant was a co -owner of the property with his divorced wife and had to
transfer the 50% of his divorced wife’s share into his name before transfer into the
applicant’s name could take place
[8] The registration and/or transfer of the property was delayed by the problems
mentioned in 6 above.
[9] By 15 January 2025 the issues mentioned in 7 above had been resolved.
[10] Applicant, however, refused to sign documents necessary to effect transfer.
On 24 February 2025, the first respondent in a WhatsApp message, gave a reason
for his refusal. The reason for his refusal was that the agreement was signed two
years earlier and had, therefore, lapsed. He went further to state that the value of the
house had appreciated.
[11] Meanwhile, during the delay, t he applicant had taken occupation of the
property on 1 February 2024 and ha d been paying the occupational rent of R12 500-
00 ever since.
[12] The first respondent defaulted on water payment and the municipality cut off
water supply to the premises. The respondent had to pay an extra R10 000 for
supply to be reconnected. This is the amount that is specifically mentioned in the
relief sought by the applicant, as the respondent was not entitled to it.
[13] The relationship between the applicant and the first respondent deteriorated
and was made worse when the first respondent threaten ed the applicant with
eviction.
[14] Tings came to a head when it was established that there was a foreclosure
process related to the property and summons was already issued. This was
confirmed by attorneys of the third respondent on 6 March 2025.
[15] From all the messages sent by the first respondent to the applicant it is clear
that the first respondent is not willing to sign documents necessary for transfer
and/or register the property in the applicant’s name.
[16] Apparently the first respondent wants to resile from the contract.
Issues
[17] The issues for determination herein are:
17.1 Whether the matter is urgent; and
17.2 If urgent, is the respondent entitled to the relief as claimed.
Urgency
[18] A litigant that approaches the court for relief on an urgent basis must comply
with Uniform rule 6(12)(b), which provides as follows:
“(b) In every affidavit filed in support of any application under paragraph (a) of this
subrule, the applicant must set forth explicitly the circumstances under which is
averred render the matter urgent and the reasons why the applicant claims that
applicant could not be afforded substantial redress in due course.”
[19] This rule allows the court to come to the assistance of a litigant because if the
latter were to wait for the normal course laid down by the rules it will not obtain
substantial redress. The matter will be urgent if the applicant can demonstrate, with
facts, that the applicant requires immediate assistance from the court, and that if his
application is not heard on an urgent basis that any order he might later be granted
will by then no longer be capable of providing him with the legal protection he
requires.
[20] A determination on urgency precedes a finding on merits. This means that
before a court makes a finding on the merits of an urgent application, the court must
first consider whether the application is indeed so urgent that it must be dealt with on
the urgent roll. Should an applicant not succeed in convincing the court that he will
not be afforded substantial redress at a hearing in due course, the matter will be
struck from the roll. This enables the applicant to set the matter down again on
proper notice and compliance (see SARS v Hawker Air Services (Pty) Ltd1). Where
the facts indicate that the urgency is self -created, the application will, likewise, be
struck from the roll.
[21] The correct and crucial test to be applied in urgent applications is whether or
not an applicant will be afforded substantial redress in due course2.This is
determined by asking whether if the matter were to follow its normal course as laid
down by the rules, an applicant will be afforded substantial redress. If they cannot be
afforded substantial redress in due course, the matter should be enrolled and heard
on an urgent basis.
[22] If there is a delay in instituting the proceedings, an applicant has to explain
the reasons for the delay and why despite the delay they claim that they cannot be
afforded substantial redress at a hearing in due course.
[23] The fact that the applicant wants to have the matter resolved urgently does
not render the matter urgent. The urgency of a matter depends on the relief sought
seen in context with the facts of a case. This calls for courts to determine urgency
on a case -by-case, context specific basis.
[24] It is this determination of urgency within a given context which renders the
factual matrix of a case relevant in determining its urgency. The factual matrix should
at no stage be confused with merits determination. The factual matrix is an
intertwined blend of facts and circumstances that determine legal outcome. It refers
to the context and circumstances underlying the controversy. Merits of a case are
the important facts and reasons that help determine the outcome of a case. It is the
quality of being particularly good or worthy, especially so as to deserve praise or
1 [2006] ZASCA 5;2006(4) SA 292 (SCA)
2 East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite Pty Ltd and Others
(11/33767[2011] ZAGPJHC 196 (23 September 2011)
reward. The factual matrix is an adaptable tool that can be used at any stages of the
litigation.
[25] The court could therefore consider the factual matrix for purposes of
determining urgency, without making a decision on the merits, that is, without
rewarding or punishing any of the parties.
[26] In casu , the applicant and the first respondent had concluded an agreement. It
is not argued that the agreement is invalid. The applicant had all along been
performing in accordance with the terms of the agreement.
[27] It has been brought to the attention of the applicant that the property for which
she paid the purchase price is about to be foreclosed. This will render her homeless.
Had the first respondent not refused to sign the documents, the property could have
been transferred t o the applicant. The applicant is, therefore, enjoined to act swiftly
in order to remedy the wrong or infringement.
[28] I am thus satisfied that the applicant acted with the urgency called upon by
the circumstances of this case.
The law
[29] Our law of contract is governed by the pacta sunt servanda principle , which
means that agreements must be kept or honoured. It is a fundamental principle of
international law stating that treaties and contracts are binding on the parties that
entered into them, and they must be performed in good faith. Thus, t he pivots of the
South African law of contract, are good faith, freedom of contract, sanctity of contract
and privity of contract.
[30] Parties are to observe and perform in terms of their agreement and should
only be allowed to deviate therefrom if it can be demonstrated that the contract is
tainted with fraud or a particular clause in the agreement is unreasonable and /or so
prejudicial to a party that it is against public policy.
[31] The Constitutional Court in Beadica 231 CC and Others v Trustees for the
Time Being of Oregon Trust and Others3 emphasized the principle of pacta sunt
servanda and stated the following:
“[84] Moreover, contractual relations are the bedrock of economic activity and
our economic development is dependent, to a large extent, on the willingness
of parties to enter into contractual relationships. If parties are confident that
contracts that they enter into will be upheld, then they will be incentivised to
contract with other parties for their mutual gain. Without this confidence, the
very motivation for social coordination is diminished. It is indeed crucial to
economic development that individuals should be able to trust that all
contracting parties will be bound by obligations willingly assumed.
[85] The fulfilment of many of the rights promises made by our Constitution
depends on sound and continued economic development of our country.
Certainty in contractual relations fosters a fertile environment for the
advancement of constitutional rights. The protection of the sanctity of
contracts is thus essential to the achievement of the constitutional vision of
our society. Indeed, our constitutional project will be imperilled if courts
denude the principle of pacta sunt servanda.”
[32] The Court in Wells v South African Alumenite Company4 held as follows :
“If there is one thing which, more than another, public policy requires, it is that
men of full age and competent understanding shall have the utmost liberty of
contracting, and that their contracts, when entered into freely and voluntarily,
shall be held sacred and enforced by the courts of justice.”
[33] The decision in We lls was quoted with approval i n Moha med’s Leisure
Holdings (Pty) Ltd v Southern Sun Hotel Interests (Pty) Ltd5 wherein the Supreme
Court of Appeal , reaffirm ing the principle of the privity and sanctity of the contract ,
stated the following:
“[23] The privity and sanctity of contract entails that contractual obligations
must be honoured when the parties have entered into the contractual
3 (CCT 109/19) [2020] ZACC 13; 2020 (5) SA 247 (CC)
4 1927nad 69
5 (183/17)[2017] ZASCA 176 (1 December 2017); 2018 (2) SA 314 (SCA)
agreement freely and voluntarily. The notion of the privity and sanctity of
contracts goes hand in hand with the freedom to contract, taking into
considerations the requirements of a valid contract, freedom to contract
denotes that parties are free to enter into contracts and decide on the terms of
the contract. ”
Evaluation
[34] The applicant and the first respondent entered into a valid , enforceable
contract, doing so freely and voluntarily . The applicant performed in accordance with
the terms and provisions of the contract.
[35] The first respondent derived benefits from the performance by the applicant.
One would expect the first respondent to discharge his obligations under the
contract. There is no valid reason given by the first respondent for his failure to
perform. He cannot try to resile from the contract by virtue of the transfer of the
property being delayed by circumstances of his own creation.
[36] The delay was not occasioned by any conduct on the part of the applicant. It
was by an encroachment and by issues related to the first respondent’s divorce.
[37] It would be undermining the spirit of the principle of pacta sunt servanda to
allow the first respondent not to honour the contract.
[38] The R10 000 paid by the applicant, for water supply reconnection , should be
repaid to the applicant.
[39] I thus find that the applicant has made out a case for the sought relief.
[40] Consequently, the following order is made:
1. The application is found to be urgent;
2. The first respondent is ordered to sign all documentation within 48
hours after the granting of this order, necessary to ensure the registration of
the transaction and transfer of the property into the applicant’s name at the
office of the fifth respondent and to enable the fourth respondent to proceed
with the lodgement of the papers to effect transfer of the property by the fifth
respondent into the name of the applicant.
3. If the first respondent fails to comply with the order set out in paragraph
2 above, the second respondent or its representative is authorised to sign all
the documentation on behalf of the first respondent necessary to ensure the
registration of the transaction and transfer of the property into the applicant’s
name in the office of the fifth respondent and to enable the fourth respondent
to proceed with the lodgement of the papers to effect transfer of the property
into the name of the applicant by the fifth respondent.
4. The first respondent is ordered to pay all outstanding fees in respect of
the transfer to the fourth respondent within 48 hours after the granting of this
order; this includes the amount of R10 000 the applicant already paid on the
arrear water usage forming part of the rates and taxes owed and payable on
the property.
5. Should the first respondent not make payment of the outstanding costs
due, the fourth respondent is authorised and ordered to make payment of the
outstanding fees from any excess available after the cancellation of the bond
which the first respondent had with the third respondent in respect of the
property, upon cancellation of the bond with the fifth respondent.
6. First respondent is ordered to pay the costs of this application on a
party and party Scale C , including the costs of Counsel
SHAI AJ
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MBOMBELA
APPEARANCES
Counsel for the Plaintiff: Adv J Van den Bergh
Instructed by: DK Attorneys
Counsel for the Defendant: Adv T Ngwenya
Instructed by: JF Shabangu Attorneys
Date of Hearing 18 March 2025
Date of Judgment: 27 March 2025
This judgment was handed down electronically by circulation to the parties’
representati ves by email and release to SAFLII. The date and tim e for hand -down is
deemed to be 11h00 on 27 MARCH 2025 .