SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION , CAPE TOWN
Case No: 11318/23
REPORTAB LE
In the matter between:
SHAMEEGAH ISMAIL Applicant
and
JULIA CLAIRE JANTJIES NEE VERTUIN First Respondent
WILLIAM JOSEPH VERTUIN Second Respondent
PATRICK BENNET SWARTZ Third Respondent
THE REGISTRAR OF DEEDS Fourth Respondent
Judgment delivered: 6 March 2025
Date of Argument : 5 December 2024
______________________________________________________________
JUDGMENT
MTHIMUNYE AJ
Introduction
[1] This is an opposed application for a declarator in terms of which the applicant
is seek ing an order in the following terms:
“1. The purported Sale and Deed of Sale concluded between the First and
Second Respondents, a s well as the Third Respondent be declared
null and void ;
2. The Deed of Sale be set aside, and the following property be
transferred to the Third Respondent in accordance with the
aforementioned Sale:
REMAINDER OF ERF 6[...], DELFT
ALSO KNOWN AS 1 […] D[…] DRIVE, DELFT
IN THE CITY OF CAPE TOWN
WESTERN CAPE PROVINCE
IN EXTENT: 350 (THREE HUNDRED AND FIFTY) square meters
3. That the Applicant be declared the lawful owner of the abovementioned
property at paragraph 2 hereinabove;
4. The Fourth Respondent be directed to rectify its records and the Title
Deed to the abovementioned property by:
4.1 Cancelling the transfer and registration of the said property in the name
of the Third Respondent under Title Deed T00046585/2021;
and
4.2 Transferring and registering the abovementioned property at paragraph
2 hereinabove in the name of the said Applicant, Shameegah Ismail (Id
No : 9 […]).
5. In the alternative to paragraph 4 above, the First to Third Respondents
are to sign all the necessary documents presented to them in order for
a conveyancer to give effect to paragraph 4 hereinabove and to have
the property transferred to the Applicant.
6. Should the First to Third Respondent refuse or fail to sign, any Sheriff
of the Honour able Court is authorised to sign any such documents on
their behalf.
7. The First to Third Respondents is to pay the costs of the application, if
opposed.
8. Further and / or alternative relief that the Honourable Court may deem
fit.”
[2] This matter concerns 2020 and 2021 contractual agreement s in terms of
which the abovementioned property (‘the property”) was sold.
[3] In order to grant the relief sought by the applicant , this court will first have to
determine wh ether the applicant has satisfied this court that she has a
legitimate legal interest in the matter before the cour t. The court will have to
determine whether the 2020 sale agreement upon which the applicant , Ms
Shameegah Ismail (“Ms Ismail”) , relies for her claim , is a valid and
enforceable contractual agreement between her and the first respondent ,
Julia Jantjies (“Ms Jantjies”) .
[4] For the sake of consistency I will refer to the applicant as Ms Ismail and the
first respo ndent as Ms Jantjie s.
Background
[5] On 30 August 2004, Ms Jantjies and second respondent , Mr William Joseph
Fortuin (“Mr Fortuin”) divorced . In terms of the divorce order, the property was
awarded to Ms Jantjies as her sole and exclusive property.
[6] On or about 2013, Ms Ismail’s father, Mr Soleiman leased the property in
terms of an oral agreement on a month -to- month bases (“lease agreement”)
from Ms Jantjies . The monthly rental was about R1 000.00 .
[7] On 21 October 2014, Mr Fortuin passed away. Consequently Ms Jantjies was
appointed as the Master’s representative of Mr Fortuin’s deceased’s estate.
[8] On 8 March 2017, Ms Jantjies married Mr Frederick Cornelius Jantjies in
community of property and the marriage still subsists .
[9] In November 2020, Ms Ismail and Ms Jantjies signed an agreement of sale
citing both Ms Jantjies and the late Mr Fortuin as the sellers. However no
transfer of the property to Ms Ismail had taken place.
[10] In January 2021 Mr Soleiman passed away, resultin g in the termination of the
lease agreement between him and Ms Jantjies .
[11] On 16 March 2021, Ms Jantjies erstwhile attorney of record, Mr Bester
informed Ms Ismail that the 2020 agreement was invalid due to Mr Jantjies not
signing for the alienation of the joint property . Accordingly in March 202 1 Ms
Jantjies attorney issued a notice to vacate, informing Ms Ismail that she had
to vacate the property by 2 April 2021 as Ms Jantjies believed that Ms Ismail
was occupying the property without a lease agreement . Ms Ismail failed to
vacate the property.
[12] On 19 May 2021, Ms Jantjies and Mr Jantjies, as co -owners of the property,
concluded the 2021 sale agreement with the third resp ondent. Consequently
the property was transferred into the third respondent’s name on 17
September 2021 .
[13] On 29 November 2022, the third respondent instituted eviction proceedings
against the applicant in the Bellville Magistrate’s Court under case nu mber
8224/2022. The eviction proceedings have been stayed pending the
determination of the present application.
[14] The first respondent raised 2 points in limine. Firstly, that Ms Ismail failed to
join the parties that had a direct and substantial interest in this matter.
Secondly, that Ms Ismail’s application lacks a cause of action.
[15] After the parties had addressed the court regarding the points in limine on 4
November 2024 , it transpired that a joinder and substitution application had
already been granted . This application involved the addition of the fifth
respondent, Mr Jantjies , to the proceedings and substituting Mr Fortuin with
the Masters representati ve, Ms Jantjies . Consequently, the only point in limine
that remains to be considered is whether the applicant’s application lacks a
cause of action.
[16] The respondent avers that the applicant’s application lacks a cause of action,
in that prayer 1 sought by the applicant ’s notice of motion is not competent as
no sale had taken place between the second respondent , the applicant , and
third respondent.
“the purported sale and deed of sale concluded between the first and
second respondents (as the Sellers ), and the third respondent (the
purchaser) be declared null and voi d.”
[17] Ms Jantjies avers that the third respondent acquired ownership of the property
in terms of a written deed of sale concluded between the third respondent as
purchaser and herself and her current husband Mr Plaaitjies as seller s and
co-owners of the property. Furthermo re, she did not sign the 2020 agreement
in her capacity as the Master's representative on behalf of the late second
respondent's estate. Accor dingly, the 2020 agreement fails to satisfy the
requirements in terms of section 2(1) of the Alienation of Land Act 68 of 1981
and is thus void.
[18] The respondent further avers that her erstwhile attorney , Andre Bester ,
subsequent to her signing the 2020 agreement , informed the applicant on 12
May 2021 , that the agreement had been cancelled. In addition, Mr Bester on
29 March 2021 , dispatched a notice to the applicant and other occupiers
directing them to vacate the premises . Furthermore, the applicant has to date
not filed any legal action to dispute the cancellation in order to reinstate the
2020 Agreement. Consequently, the applicant fails to disclose a cause of
action due to the lack of a binding agreement between her and the
respondent.
[19] In order to determine whether the applicant’s application does not disclose a
cause of action , and whether the 2020 or 2021 agreeme nt was valid the court
consequently referred the matter for oral evidence to be heard on 14
November 2024 .
[20] In order t o contextualise the issue s in dispute, I will have to look at the
surrounding circumstances and background of this matter. Accordingly, I first
turn to deal with each part y’s case as set out in their papers.
The Applicant’s Case
[21] In her founding affidavit t he applicant, Ms Ismail, avers that t he property is
currently owned by Ms Jantjie s. She has been residing at the property for 17
years. Ms Jantjies together with her late husband, Mr Fortuin offered to sell
the property to Ms Ismail in 2020 .
[22] On or about 25 November 2020 the late Mr Fortuin and Ms Jantjies entered
into a sale agreement with her. In terms of the agreement the property was
sold to her at a purchase price of R130 000.00. In terms of the purchase
agreement she was to pay an amount of R90 000.00 with the balance of R40
000.00 to be paid into the transferring attorneys trust account upon the
registration of transfer.
[23] Subsequently, while waiting for further communication fro m Ms Jantjies and
the late Mr Fortuin regarding the registration of the property, she was
informed by the third respondent that he was now the owner of the property
as he acquired it on 19 May 2021 from Mr and Ms Jantjies . As a result the
property was now registered in his name on 17 September 2021.
[24] Ms Ismail further averred that she has a clear right in that she entered into a
valid sale agreement with Ms Jantjies and the late Mr Fortuin . Furthermore,
that the Deed of Sale was never cancelled, neither was she giv en any
indication by Ms Jantjies and the late Mr Fortuin that the balance of R40
000,00 had to be paid in order to effect transfer of the property. In addition,
she never received her R90 000.00 which she had paid to the Ms Jantjies
when she entered into t he agreement on 25 November 2020.
[25] Ms Ismail averred that if this Court should not grant the relief s ought in her
notice of motion she will suffer irreparable harm, as she and her family will
lose the property without being compensated, due to the fraudulent conduct of
Ms Jantjies and the late Mr Fortuin. She is concerned that the third
respondent will sell th e property and this poses an imminent danger to her
and her family being evicted from the property.
[26] Ms Ismail further avers that she was advised that there is no alternative
remedy available to safeguard the rights of her and her famil y, other than for
this court to grant the relief sought.
The First Respondent’s Case
[27] In response to the applicant’s averments, Ms Jantjies deposed to an affidavit
on behalf of the third respondent and herself. Ms. Jantjies' allegations
regarding him were corroborated by the third respondent in a confirmatory
affidavit. The following is a concise summary of these affidavits :
[28] Ms Jantjies opposes the relief sought by the applicant on the grounds that:
28.1 The third respondent’s Agreement of Sale (“2021 Agreement”) is valid
and enforceable.
28.2 Ms Ismail’s purported Agreement of Sale (“2020 Agreement”) fails to
satisfy the requirements in terms of section 2 of the Alienation of Land
Act 68 of 1981.
28.3 The 2020 Agreement fails to satisfy the requirements in terms of
section 15(2)(b) of the Matrimonial property Act 88 of 1984.
28.4 The 2020 Agreement was cancelled by their erstwhile attorney.
28.5 At the time of the cancellation of the 2020 Agreement, the applicant
failed to make any or all payment as alleged to the first respondent
and/or to their erstwhile attorney.
Evidence during oral evidence
Applicant’s oral evidence
[29] Ms Ismail called two witnesses, herself and Ms Soraya Ismail whose evidence
was not relevant to the issue referred to oral evidence pertaining to the 2020
and 2021 sale agreement . The court subsequently excused her and therefore
her evidence needs no further consideration.
[30] The evidence of Ms Ismail’s can briefly be succinctly summarised as follows:
She confirms that she resides at the property with her sister and children. She
further provides an account as to how the property was acquired, which is
corroborated by her founding affidavit. She further admitted that Mr Saban,
her erstwhile attorney, represented her at the time the 2020 sale agreement .
[31] She confirms that Mr Saban drafted the 2020 sale agreement and that it was
subsequently signed by herself and Ms Jantjies in his office , in the presence
of her self, her father, sister , the first respondent and the fourth respondent .
She further confirms that Mr Saban who was also a conveyancer , was to
effect the transfer of the property upon her settling the balance , and that this
appeared on the face of the contract.
[32] She further testified that she had no knowledge of any correspondence sent
to Mr Saban by Mr Bester, Ms Jantjies ’ attorney , regarding the cancellation
and invalidity of the 2020 agreement. She then further testified that she and
her attorney Mr Saban w ere informed that Mr Fortuin, Ms Jantjies ’s previous
husband , had passed away .
[33] She further testified that she was aware that the fourth respondent , Mr
Jantjies , was the current husband of Ms Jantjies and that he was present on
the day that the 2020 agreement was signed. She further testified that
payments had already been made in lieu of the sale of the property to Ms
Jantjies , and that it was recorded in the 2020 agreement that she only had to
pay the balance of R40 000,00 before the property could be transferred in her
name.
Respondents oral e vidence
[34] In contrast, Ms Jantjies testified that the payments she had received w ere for
arrear rental and not in lieu of purchase price of the property . She testified
that at the time she signed the 2020 agreement, she was unsure what she
signed. She referred to the 2020 agreement as a deed of sale, which she later
rectifies during re -examination as being a title deed. She further testified that
after the 2020 agreement was signed she took it to her erstwhile attorney Mr
Bester who informed her that the agreement was invalid.
[35] She then testified that Mr Bester sent letters to Ms Ismail’s attorney , Mr
Saban , informing Mr Saban of the invalidity of the agreement. She testified
that she understood that the property had not been so ld in terms of the 2020
agreement due to its invalidity.
[36] She further testified that she has difficulty reading and takes time to
understand what is being explained to her. During her testimony she
contradicted her affidavit, that she did not have the intention from the outset to
sell the property to Ms Ismail , whereas in her founding affidavit it is apparent
that she had the intention to enter into the agreement with Ms Ismail. She
further testified that she does not deny the contents of her affida vit in its
entirety , but only denies the aspect of her selling the property to Ms Ismail.
Third Respondent’s oral evidence
[37] The third respondent, Mr Swart s, evidence was briefly that he signed the 2021
sale agreement in respect of the property while being unaware that there was
any other agreement in place between Ms Ismail and Ms Jantjies.
Accordingly, he accepted the offer to purchase the property from Ms Jantjies.
He further testified that he was info rmed to approach the offices of Mr Saban
and to inform Mr Saban to seize any correspondence with M s Jantjies as he
has appointed an attorney to deal with the eviction of Ms Ismail. There was no
dispute in relation to Mr Swarts evidence.
Applicable Legal Principles
[38] For a valid contract under the common law the following requirements are
applicable:
(a) Consensus : the parties must agree to the terms of the contract
(b) Capacity: the parties must be of sound mind, not minors, and not
disqualified by law.
(c) Certainty: the subject matter of the contract must be clear.
(d) Possibility: the contract must be possible to perform.
(e) Legality: the object of the agreement must b e legal and not against
public policy.
(f) Formalities: the contract must meet certain formalities.
[39] Other essential elements include an offer and acceptance, consideration ,
authority and the intention to create a legal agreement.
[40] It is common cause when immovable property is being sold , the Alienation of
Land Act 68 of 1981 (“the Act”) is applicable. Section 2(1) of the Act read as
follows :
“(1) No alienation of land after the commencement of this section
shall, subject to the provisions of section 28, be of any force or
effect unless it is contained in a deed of alienation signed by the
parties thereto or by their agents acting on their written authority.
[41] Section 28 of the Act deals with the consequences of deeds of alienation
which are void or are terminated. It reads as follows:
“ (1) Subject to the provisions of subsection (2), any person who has
performed partially or in full in terms of an alienation of land which is of
no force or effect in terms of section 2(1), or a contract which has been
declared void in terms of the provisions of section 24(1)(c), or has been
cancelled under this Act, is entitled to recover from the other party that
which he has performed under the alienation or contract , and -
(a) the alienee may in addition recover from the alienator…
(b) the alienator may in addition recover from the alienee…
(2) Any alienation which does not comply with the provisions of section
2(1) sha ll in all respects be valid ab initio if the alienee had performed
in full in terms of the deed of alienation or contract and the land in
question has been transferred to the alienee. ”
[42] Where people are married in community of property , the Matrimonial Property
Act 88 of 1984 finds application (“ Matrimonial Act”) . Section 15 of the
Matrimonial Act deals with the alienation of property by spouses married in
community of property. The relevant parts of section 15 read as follows:
“15. ( 1) Subject to the provisions of subsections (2) , (3) and (7), a spouse in a
marriage in community of property may perform any juristic act with regard to
the joint estate without the consent of the other spouse.
(2) Such spouse shall not without the written consent of the other spous e-
(a) alienate, mortgage, burden with a servitude or confer any
other real right in any immovable property forming part of
the joint estate.
(b) enter into any contract for the alienation, mortgaging,
burdening with a servitude or conferring of any other real
right in any immovable property forming part of the joint
estate .”
Analysis
[43] Counsel for the respondent s submitted during argument that Ms Ismail in her
oral evidence failed to address the crux of the issue that this court referred to
oral evidence . That she failed to deal with the point in limine , whether her
application sets out a cause of action for the r elief sought in prayer 1 of her
notice of motion. In other words whether the 2020 agreement between herself
and Ms Jantjies was valid , consequently resulting in the 2021 sale agreement
between Mr Swarts and Ms Jantji es being null and void.
[44] I am inclined to agree with counsel for the respondent s, as Ms Ismail failed to
lead any evidence on the correspondence between the erstwhile attorney of
Ms Jantjies, Mr Bester , and her attorney , Mr Saban , regarding the validity and
the cancellation of the 2020 contractual agreement . She admits that at the
time Mr Saban was her attorney of record , However, wants this court to
believe that she had no knowledge of the correspondence between Mr Saban
and Mr Bester.
[45] She did not deny that the 2020 sale agreement was cancelled and invalid ,
rather tried to raise a defence by stating that she had no knowledge of such
cancella tion or invalidity of the agreement. In addition, it is important to note
that it was common cause that this agreement was dra fted and signed by Ms
Ismail while Mr Saban was still acting in his capacity as Ms Ismail’s attorney.
She further failed to explain to this court during her testimony why she never
follow ed up with her attorney, Mr Saban when the transfe r of the property was
to take place as his firm was appointed to deal with the transfer . Clearly not
taking the court into her confidence as to her knowledge with regard to the
cancellation of the agreement.
[46] Counsel for the respondents further pointed out during argument that
according to Ms Ismail’s testimony and the submissions made by her counsel
during argument was that Ms Ismail was of the opinion that the agreement
she signed was a sale agreement in respect of the property. It is trite that for
any contractual agreement to be valid , both parties must have consented to
the terms of the agreement . It appears that Ms. Ismail was the sole individual
who intended to acquire ownership of the property, as in dicated by her
evidence.
[47] Counsel for the respondents further argued that the contention by Ms Ismail
that she signed the agreement with the owner of the property is incorrect as
Ms Ismail does not dispute th e registrar of deeds report that confirms that the
owners of the property was Mr and Ms Jantjies jointly . Accordingly there could
never have been consensus between the parties when the 2020 agreement
was signed. I am inclined to agree with counsel for the re spondent that the
oral evidence led by Ms Ismail cannot validate an agreement that does not
satisfy the requirements for a valid contractual agreement.
Requirements of a valid agreement
Consensus
[48] In order f or the parties to reach consensus to regarding any agreement, the y
must concur with rights and obligation that are created in terms of the
contract. This must be conveyed in the form of an offer and acceptance . The
offer must be made with the intention to be bound by the acceptance. The
acceptance is then made with the intention to enter into a legal agreement.
Ms Jantjies during her testimony contradicted herself on the material aspect of
her intention to sell the property to Ms Ismail. In her founding affidavit she
does not deny that her intention was to sell the property to Ms Ismail, however
during cross -exam ination she denied that th is was her intention from the
outset.
[49] It is trite that an applicant will stand and fall by its pleadings in their founding
papers. I therefore , find that when Ms Jantjies signed the 2020 agreement
together with Ms Ismail, Ms Jantjies had the intention to sell the property to
Ms Ismail. However , this is not the conclusion of the matter as this court
must still determine whether the agreement complied with the other statutory
requirements of a valid contract.
Capacity
[50] It is not in dispute that both Ms Ismail and Ms Jantjies had the necessary
capacity to enter into this agreement.
Formalities of a contract
[51] It is not in dispute that the 2020 agreement was in writing and signed by both
Ms Ismail and Ms Jantjies. It is also not in dispute that Ms Jantjies did not sign
the agreement in her capacity as the Master’s representative on behalf of her
late husband Mr Fortuin , or that Ms Jantjies current husband Mr Jantjies did
not sign the agreement.
[52] In terms of section 15 of the Matrimonial Act it is a statutory requirement that
a spouse that is married in community of property cannot alienate, sell
immovable property or enter into a contact without the consent of the other
spouse. Ms Jantjies testifie d that she and Mr Jantjies are married in
community of property. Accordingly when Ms Ismail and Ms Jantjies entered
into the 2020 agreement they did so without there being compliance with the
Matrimonial Property Act. No evidence had been led or stated in the founding
affidavit that Mr Jantjies consented to the alie nation of the property.
[53] More importantly both Ms Ismail and Ms Jantjies testified that there had been
no compliance with the Alienation of Land Act . Counsel for the respondents
referred the court to the Supreme Court of Appeal matter of Cooper NO and
Another v Curro Heights Properties (Pty) Ltd (1300/202 1) [2023] ZASCA
66 (16 May 2023) at para 15, where it was held :
“The result of non -compliance with section 2(1), is ‘that the agreement
concerned is of no force or effect. This means that it is void ab initio
and cannot confer a right of action’22”
[54] Counsel for the respondents argued that for the 2020 agreement to have
been valid it must have been signed by all parties . Furthermore, that it was
common cause that it was not signed by Mr Jantjies nor by the Master’s
representative on behalf of the late Mr Fortuin ’s deceased estate. I am
inclined to agree with counsel for the respondents that there has been no
compliance with section 2(1) of the Alienation of Land Act or with section 15 of
the Matrimonial Property Act , as neither the Master’s representative on behalf
of the deceased estate of Mr Fortuin, neither Mr Jantjies who se rights as to
alienation of immovable property of spouses married in community of property
is afforded protection gave their consent for such alienation of the property .
[55] What is concerning in this matter is that not only was Ms Ismail legally
represented during the signing of this agreement , after her attorney became
aware of the non -compliance with the statutory requirements , Ms Ismail and
or her attorney failed to take reasonable steps to rectify the agreem ent, by
obtaining Mr Jantjies consent in order to validate the agreement.
[56] The aspects of P ossibility of Performance and Certainty which are the
remaining requirement for a valid contract are not in dispute. For the reasons
set out above it is appar ent that Ms Ismail failed to comply with that statutory
requirements for a valid contract and as such does not have a legitimate stake
to bring this application.
Failure by Applicant to make payments
[57] Counsel for the respondents argued that Ms Ismail failed to make out a case
with regard to the R90 000,00 that she allege in her founding papers and
during oral evidence to have paid to Ms Jantjies in lieu of the sale of the
property. I am inclined to agree with counsel for the respondents that Ms
Ismail did not seek repayment of the money that she had paid to Ms Jantjies,
but deem it necessary to point out that even though Ms Jantjies tries to deny
that she had been paid R 90 000,00 by Ms Ismail in lieu of purchasing the
property, this denial holds no water as the signed 2020 sale agreement
attached to the applicant’s paper s confirms that Ms Jantjies had already been
paid R70 000, 00 when contract was signed , a further R20 000, 00 had to be
paid on registration of transfer of the property . To substantiate this contention
I refer to clause 1 of the 2020 agreement which read as follows:
“1 PURCHASE PRICE
The purchase price is the sum of R130 000. 00 (One Hundred and Thirty
Thousand Rand) (hereinafter referred to as the PURCHASE PRICE ) payable
by the Purchaser to the Sellers as follows:
1.1 R70 000 . 00 (Seventy Thousand Rand) has already been paid in
respect of the purchase price, and amount of R20 000. 00 (Twenty
Thousand Rand ) shall be payable to the transferring attorney s trust
account upon registration of transfer.
1.2 The balance of the purchase price in the amount of R40 000 ,00 (Forty
Thousand Rand ) shall be paid to the transferring attorneys trust
account upon registration upon registration of transfer. ”
[57] I believe it is prudent to emphasise that, in accordance with section 28(2) of
the Alienation of Land Act, Ms. Ismail would still be entitled to recover from
Ms. Jantjies, who had not performed in full the terms of the 2020 agreement,
that which Ms. Ismail had performed in accordance with the 2020 agreement,
despite the fact that the 2020 agreement is deemed to be void. This is in
reference to the same Alienation of Land Act on which the respondents based
their defence. In other words, the R70,000.00 that M s. Ismail had already paid
in accordance with the 2020 agreement for the purchase price of the property
can be reco vered in accordance with section 28(2) of the Alienation of Land
Act.
[58] With regard to Ms Ismail’s averment in her founding papers that she was
advised that there is no alternative remedy available to safeguard the rights
of her and her family, other than for this court to grant the relief sought, this
court does not agree with. As demonstrated above Ms I smail has various
remedies availa ble to her, for instance bringing an application to have the
2020 agreement rectified , or to bring an application for unjustified enrichment
against the Ms Jantjies for the return of the money she had already paid in
terms of the agreement .
[59] Lastly I now turn to the validity of the 2021 agreement.
[60] Counsel for Ms Ismail argued that the subsequent 2021 agreement is invalid
as Ms Ismail has a clear right to the property in terms of the 2020 agreement.
Counsel for the respondents argued that the 2021 agreement between Mr
Swarts and Mr and Mrs Jantjies was lawfully concluded and that Ms Ismail
provided no legal basis in law to assert that the content of the 2021
agreement is null and void. Mr Swarts was a good and consistent witness who
testif ied that at the time he signed the 2021 agreement he was unaware that
there was another agreement in place. He testified that he informed Ms
Ismail’s attorney that he was the new owner of the property . The title deed of
the property is also registered in his name. There is no evidence to the
contrary that this agreement did not comply with the statu tory requirements of
a valid agreement, accordingly I am of the view that the 2021 agreement is
valid and enforceable.
Conclusion
[61] For all t he reasons advanced , I am of the view that the applicant has failed to
satisfy the requirements for the relief sought. As the applicant is not the owner
of the property and the 2020 agreement had been validly cancelled due to
non-compliance with the Alienation of Land Act and the Matrimonial Property
Act, I am not satisfied that the applicant has a legitimate legal stake in the
matter before the court.
[62] In the circumstances I make the following order:
1. The ap plication for the relief sought in terms of the applicant’s notice of
motion is dismissed with costs on a party and party scale A.
________________________
MTHIMUNYE AJ
JUDGE OF HIGH COURT
Attorney for Applicant : Mr T Swartz info@swartzattorneys.co.za
Counsel f or Respondents: Adv U Mahilall ureesamahilall@capebar.co.za
Attorney for Respondents : Brits & Mathee Aattor neys La-Rissa @mweb . co.za