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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH -AFRICA
GAUTENG DIVISION, PRETORIA
SIGNATURE Case Number: 077838/25
Heard on: 29 May 2025
Judgment: 10 June 2025
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE 10 June 2025
In the matter between:
LIJUN GAO First Applicant
YINYING ZHENG Second Applicant
and
MATHYS JOHAN LOUW NO First Respondent
THE REGISTRAR OF DEEDS, PRETORIA Second Respondent
LOUW LOUW INCORPORATED ATTORNEYS Third Respondent
JUDGMENT
STRIJDOM , J
[1] In this matter the applicant s have, on an urgent basis, launched an application
seeking an interim interdict restraining the transfer of the property known as
Section Number 39 /2006 (Flat Number 2 […]) Measuring 208 square metres. In
the building known as Nikita’s View Complex, situated at S […], Ext 6, Erf 1 […],
E[…] Golf Estate, Vanderbijlpark,) (“the property”) pending the outcome of
action under case number 075197/2025.
[2] At the commencement of the application, I ruled that the application is urgent.
[3] The application is opposed by the first and third respondent.
[4] The factual matrix underpinning the applicants’ case can be summarised as
follows:
4.1 On 10 September 2024 applicants and first respondent entered into an
agreement of sale in terms whereof the applicants purchased the
property from first respondent.
4.2 It is common cause that applicants complied with their contractual
payment obligations by 12 November 2024.
4.3 Despite numerous endeavours, the first respondent, through third
respondent (i.e. the transferee attorney) was unable to affect or
achieve registration and transfer within a reasonable period.
4.4 On 2 April 2025 the applicants’ attorney sent a letter to the third
respondent to inform them that their conduct constitutes a breach of
the agreement and afforded first respondent 30 days within which to
remedy the breach.
4.5 As a result of first respondent’s continued inability to achieve
registration and transfer of the property the agreement was
consequently terminated on 2 May 2025 as per annexure “D” to the
founding affidavit.
4.6 Applicants consequently instituted action against first respondent which
combined summons was served on first respondent on 23 May 2025.
4.7 Despite service of the summons in terms whereof an order was sought,
inter alia, confirmation of cancellation of the agreement, first
respondent continued to lodge the registration documents with the
second respondent on 26 May 2025.
[5] The case for the respondents can be summarised as follows:
5.1 The current proceedings were only instituted on the very same day that
the respondent’s gave formal notice – on 23 May 2025 – that
lodgement would proceed on 26 May 2025;
5.2 In terms of the agreement of sale first respondent agreed that the
purchase price would be payable within three months of signature with
the latest date being 5 December 2024;
5.3 The full payment, including the transfer fees was made on 12
November 2024. Only thereafter could the transfer process
commence.
5.4 The respondents took all reasonable and timeous steps to prepare the
matter for lodgement, including :
5.4.1 Having the purchasers sign the transfer documents on 20
November 2024;
5.4.2 Locating the original title deed, and subsequently obtaining the
missing second page from the Pretoria Deeds Office on 21
January 2025;
5.4.3 Securing the Executor’s signature on 23 January 2025;
5.4.4 Rates clearance figures were obtained and paid on 23 January
2025 ;
5.4.5 Submitting the Power of Attorney to the Master on 27 January
2025, endorsed on 10 February 2025 ;
5.4.6 Paying transfer duty to SARS on 28 January 2025 ;
5.4.7 Levy clearance figures were obtained and paid on 11 February
2025, and the levy clearance certificate was issued on 18
February 2025. Shortly thereafter, the transfer documents were
forwarded to the correspondents in Pretoria in preparation for
lodgement, while awaiting electronic issuance of the rates
clearance certificate ;
5.4.8 The only outstanding item preventing lodg ement was the rates
clearance certificate which could not be obtained due to delays
caused by Emfuleni Local Municipality. The Municipality
incorrectly alleged that the Body Corporate was in arrears for
the entire scheme. Upon further investigation it was confirmed
that the issue arose not from actual arrears, but from the
Municipality’s failure to allocate payments correctly ;
5.4.9 On 5 March 2025, the applicants were advised via email that the
respondents were encountering difficulties obtaining the rates
clearance certificate and were making every effort to resolve the
issue. In good faith the respondents offered the applicants early
occupation without charging occupational rent of the property.
This offer was not accepted ;
5.4.10 The respondents issued a formal letter of demand to the
Municipality, threatening legal action if the matter was not
resolved. The matter was finally resolved, and the respondents
reapply for rates clearance figures expired. This ultimately led
to the issuance of the certificate.
[6] The respondents contend that the transfer was ready for lodgement within a
reasonable time, and that the delays experienced were entirely attrib utable to a
third-party administrative failure, for which the first respondent cannot be held
responsible.
[7] If the interdictory relief sought is interim in effect, f orm and substance the
applicant must establish the following to succeed:
(a) A right prima facie even though open to some doubt ;
(b) A well -grounded apprehension of irreparable harm if the interim relief is not
granted ;
(c) A balance of convenience in their favour; and
(d) The lack of another remedy adequate in the circumstances.
A CLEAR OR PRIMA FACIE RIGHT
[8] The applicants contend that they have a contractual right to seek cancellation
of the agreement in the event of a breach by the first respondent.1
[9] The respondents contend that the applicants have no prima facie right to halt
transfer due to the period of mora being unreasonable, and therefore the
cancellation being bad in law.
[10] The delay in transfer was not caused by the first respondent, but by the
Emfuleni Municipality’s failure to process and allocate payments correctly.
[11] Transfer was conditional on the issue of a rates clearance certificate, which is
entirely within the control of the local authority. The 1st respondent, through the
3rd respondent, took all necessary steps, made payments, and followed up
extensively to secure the certificate.
[12] It was stated in Trust Bank van Afrika Bpk v Western Bank 1978 (4) SA 281 (A)
that a party cannot place another in breach where the delay arises from
supervening impossibility or third -party failure.
[13] Under the doctrine of mora ex persona, the first respondent is not in default
unless and until proper demand is made in circumstances where performance
is reasonable possible – and it was already shown that demand was too short –
so there was no proper demand made.2
[14] In my view there is no satisfactory prima facie evidence of a right .
AN ACTUAL OR WELL -GROUNDED APPREHENSION OF IRREPARABLE LOSS
[15] It is trite that an interdict will only be granted if, in addition to a right prima facie
established, an actual or well -grounded apprehension of irreparable loss or
infringement of rights is proved as an objective fact based on substantive
grounds.
1 Caselines: 02 -1 page 10 para 38 FA
2 See Mahabeer v Sjarma NO 1985 (3) SA 729 (A)
[16] It was submitted on behalf of the applicants that they will be deprived of
enforcing their rights and will be forced into the agreement despite cancellation
and without having an opportunity to have the cancellation confirmed by a
competent Court.3
[17] It is common cause that the applicants have already issued summons and is
pursuing the matter on the merits for damages.
[18] The tran sfer of property is not irreversible.4
[19] There is no irreparable harm since the applicants are receiving value in the
form of an immovable property for their purchase price.
[20] In good faith the respondents offered the applicants early occupation of the
property without charging occupational rent pending transfer of the property.
The applicants did not accept the offer.
[21] In my view the applicants have failed to establish a reasonable apprehension of
irreparable harm.
BALANCE OF CONVENIENCE
[22] The balance of convenience is inextricably bound up with the discretion of the
Court. The exercise of the discretion ordinarily, or ultimately, turns on the
balance of convenience.
[23] The applicants contend that if the relief sought is not granted, they will have no
recourse as the action proceedings under case number: 075197/2025 would
become redundant. It was further submitted that the prejudice to be suffered by
them is far greater than the prejudice any of the respondents will suffer.5
3 Caselines:02 -1 page 11 para 47 FA
4 See Gundiv ana v Seko Development 2011 (3) SA 608 (CC)
5 Caselines: 02 -1 page 11 -12 paras 48 -49 FA
[24] The respondents contend that the balance of convenience favours the first
respondent being the executor of the estate, as he represents the interest of
many beneficiaries and creditors, and as the estate already paid the various
amounts to obtain various documents so that transfer may take place, as well
as the fa ct that winding up of the estate would be substantially delayed if the
interdict was granted.
[25] The first respondent and estate have complied with their obligations under the
sale agreement in that as executor the first respondent has: accepted the Offer
to Purchase; Received full payment, including transfer fees and transfer duty;
Signed all transfer documentation; Obtained the Master’s endorsement; and
Paid SARS and secured rates clearance.
[26] Any further delay in transfer will trigger further costs to the estate as clearance
figures and certificates will expire; and they will have to be obtained yet again at
costs to the estate, and to the beneficiaries and creditors of such estate.
[27] Under the circumstances I am of the view that there is greater possible
prejudice to the first respondent compared to the possible prejudice of the
applicants and that the balance of convenience favours the first respondent.
ALTERNATIVE REMEDY
[28] “… It is also clear that the grant of an interdict is a discretionary remedy. One
of the main factors which the Court is enjoined to take into account in deciding
whether to exercise its discretion is whether there is any other remedy open to
the applicant which can adequately protect him in his rights ...”6
[29] The applicants have already instituted action wherein they claim damages
which shows the existence of an alternative remedy.
6 Johannesburg Consolidated Investment Co Ltd v Mitchmor Investments (Pty) Ltd and Another
1971 (2) SA 397 (WLD) 404 E -F)
[30] It was decided in Gundwana v Steko Development7 that the transfer of
immovable property is not irreversible, which creates a further remedy for the
applicants.
[31] For the above reasons I conclude that the applicants failed to establish the
requirement for interim interdictory relief.
[32] In the result, the application is dismissed with costs on party and party Scale B.
JJ STRIJDOM
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
7 2011 (3) SA 608 (CC)
For the Applicant s:
Adv M Jacobs
Instructed by:
Coombe Commercial Inc
For the first and second Respondent:
Adv. GV Meijers
Instructed by: Louw Louw Inc
Attorneys