IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN

Case No: 2025-119985

In the matter between:

SPR Applicant

and

NV Respondent

Neutral citation: SPR v NV (Case no 2025-119985) [2025] ZAWCHC…(13
August 2025)

Coram: LEKHULENI JD
Heard: 29 July 2025
Delivered: Electronically on 13 August 2025

Summary: Family law - Urgent Application to enforce a Regional Court order- Matter
not urgent – Regional Court better placed to the hear matter – Application struck off
the roll – Applicant ordered to pay the costs of the application.


ORDER
___________________________________________________________________

1. The applicant’s application is struck off the roll for lack of urgency.
2. The applicant is ordered to pay the costs of this application on a party and
party scale, including the costs of counsel on Scale B.


JUDGMENT
___________________________________________________________________

LEKHULENI J:

Introduction

[1] The applicant brought an application on an urgent basis in which he seeks an
order declaring that the respondent failed to comply with paragraph s 3.7.1 to 3.7.7 of
the final order of divorce granted by the Regional Court f or the Regional Division of
the Western Cape, held at Bellville, dated 25 November 2021, under case number
RCC/BELL 1034/20. The applicant also seeks an order that the respondent be
compelled to sign within 24 hours from granting of the order, Powers of At torney to
effect transfer of three sectional title units in the scheme known as Victoria and Van
Riebeeck Courts in Parow, (Victoria Properties) owned by the applicant and the
respondent into the name of the purchaser, Omega Sibanda.

[2] In addition, the applicant seeks an order that should the respondent fail and or
refuse to sign such Powers of Attorney to effect transfer of the Victoria properties as
prayed for above, within 24 hours from granting of the order, the applicant be
authorised to sign such Powers of Attorney on behalf of the respondent and also to
sign all other document s necessary to effect transfer of the properties to the
purchaser. The applicant also seeks an order that, should the Victoria properties not
be transferred to the purchaser, these properties be sold at the current or reduced
price, and that the net proceeds be dealt with in accordance with their consent paper.

[3] In the alternative, the applicant seeks an order that pending the outcome of
the action launched by the respondent at the Regional Court for the Regional
Division of the Western Cape , in Bellville under case number: RCC/BELL438/2024,
the net proceeds of th e Victoria properties be held in trust by the applicant’s
attorneys of record in an interest bearing account after deduction of the agent’s
commission and the relevant costs including payments of municipal accounts, levies,
and bond cost made by the applic ant on the Victoria properties since date of
signature of the consent paper in the divorce action.

[4] In the further alternative, the applicant seeks an order that, should the court
find that the respondent is not in breach of the Regional Court order or that the order
cannot be enforced, that:

4.1 The applicant and the respondent’s co -ownership of the properties be
terminated;
4.2 The properties be sold in accordance with the terms of the consent paper.

[5] The respondent opposed the applicant’s applic ation and filed the necessary
answering affidavit.

Background Facts

[6] The applicant and the respondent were married on 22 February 1992, at
Franschoek, out of community of property with the inclusion of the accrual system.
The bonds of marriage between the applicant and the respondent were dissolved
when the Regional Court for the Western Cape, sitting in Bellville, granted the final
divorce order on 9 November 2020, incorporating the terms of a consent paper and
an addendum to the consent paper, both signed by the applicant and the
respondent.

[7] During the subsistence of the marriage between the applicant and
respondent, the parties from time to time purchased immovable properties, which
they held as co -owners in divided shares. At the time of granting the final divorce
order, the various immovable properties that the parties jointly owned were dealt with

in the consent paper and the addendum thereto, which were incorporated into the
final divorce order. Some properties owned by the parties hav e since been sold, and
the proceeds have been divided according to the terms of the consent paper. The
respondent provided written Powers of Attorney to transfer three properties that were
sold immediately after the divorce order was granted.

[8] The Vic toria properties forming the basis of this application have been
purchased by the respondent and the applicant during the subsistence of their
marriage as investment properties, and the parties never resided in these properties
during the subsistence of the marriage or thereafter. These properties were recorded
in the consent paper to have already been placed on the market for sale by
agreement between the parties. However, the parties were unable to successfully
market the Victoria properties for sale before the final divorce order was granted. The
respondent had previously provided Powers of Attorney for the transfer of the
Victoria properties. In the said Powers of Attorney, the respondent's status was
recorded as divorced, which was her status at the time she signed those documents.

[9] The applicant asserts that after entering into the agreement of sale with
Omega Sibanda, in respect of the Victoria properties, it, however, came to the
attention of the applicant and the conveyancer that the respondent had, since the
granting of the final divorce order, entered into a marriage with one JAV. As such, the
Powers of Attorney to effect transfer had to be amended to re flect the current marital
status of the respondent. The applicant's attorney requested the respondent to
confirm her marital status and to provide a copy of her marriage certificate along with
details of her marital regime. The respondent did not respond.

[10] The applicant further stated that the status of the sales of the Victoria
properties from the respondent and himself to the purchaser, Omega Sibanda, is that

properties from the respondent and himself to the purchaser, Omega Sibanda, is that
they have become perfecta as Omega Sibanda obtained a bond approval from
Nedbank, with Nedba nk having appointed Milton Matsemela Attorneys to register a
bond in favour of Nedbank on the date of registration. Furthermore, the applicant
asserted that the conveyancer cannot proceed with the transaction because the
respondent consistently fails or refuses to sign the necessary Powers of Attorney.

[11] According to the applicant, the fear is that Nedbank may soon withdraw its
bond approval because of the seller's failure to pass transfer. In the applicant’s view,
this will cause him significant damag e, as it has taken more than four years to
successfully market and sell the Victoria properties. It is likely that, should the
transfer not be passed in terms hereof, it will take the applicant years to obtain
alternative purchasers.

[12] On 20 May 2025, the conveyancer requested the respondent to sign the
Powers of Attorney by Friday, 23 May 2025, and the conveyancer received no
response. The applicant states that the purchaser, through her estate agent, again
inquired on 3 June 2025 as to the progr ess in having the respondent sign the
Powers of Attorney and the estate agent was informed that the conveyancer was not
receiving cooperation from the respondent and advised the purchaser of her rights in
terms of the agreement of sale.

[13] On Monday, 2 1 July 2025, the estate agent, in an email correspondence,
notified the applicant's attorneys of record that the purchaser was placing the seller s
on terms and attached the breach letter to the email. Upon receiving the breach
letter, the applicant's attor ney forwarded the estate agent's correspondence to the
respondent and her attorneys, demanding cooperation and the signature of the
Powers of Attorney by 15 h00 on Tuesday, 22 July 2025. It was also stated that an
urgent application would be issued if such cooperation and signature were not
received.

[14] The applicant stated that he feared that the purchaser intended to enforce the
terms of the sale agreement should the sellers fail to cure their breaches. When
there was no response, the applicant brought this application on an urgent basis.
The applicant prayed the court to grant the relief sought in the notice of motion o r
terminate the co -ownership of the Victorian propert ies between him and the
respondent.

terminate the co -ownership of the Victorian propert ies between him and the
respondent.

[15] The respondent opposed the application and impugned the urgency with
which the application was brought. The respondent averred that the agreement of
sale in respect of the immovable properties to which this application relates has not

been countersigned by her in her capacity as the joint owner of those properties. As
a result, the respondent opined that the sale agreement s have always been
incomplete, invalid and unenforceable to the knowledge of the applicant and the
purchaser, since the date of signature in November 2024, more tha n eight months
ago. In the respondent's view, to use the unilateral signing of th ese agreements of
sale by the applicant more than eight months ago to make out a case for urgency is
simply wrong.

[16] Moreover, the respondent questioned the urgency with which this application
was brought and submitted that the chronology of event s leading to the launching of
this application clearly shows that the urgency with which this application was
instituted was self-created.

[17] The respondent also emphasised th at the applicant is seeking a declaratory
order relating to the divorce order granted by the Regional Court of the Western
Cape, Bellville, under case number RCC/BELL1034/2020. Alternatively, the applicant
is seeking relief by way of the actio communio dividundo, which cannot possibly be
urgent, and which cannot be applied given the contents of the order that the
Regional Court has already granted. According to the responde nt, it is abundantly
clear that the court with the necessary jurisdiction to hear this application is the court
which granted the order in the first place, namely the Regional Court.

[18] The respondent also pointed out that there is a pending action in t he Regional
Court that deals explicitly with the validity and enforceability of the consent paper,
which the applicant is now asking th is Court to rule upon and enforce. In the
Regional Court, the respondent seeks a rescission of the consent paper and that
spousal maintenance be determined and recalculated, as the applicant caused her
to sign the consent paper and the addendum thereto while she was admitted for
severe depression and anxiety at West Beach Psychiatric clinic. According to the

severe depression and anxiety at West Beach Psychiatric clinic. According to the
respondent, should the order in this application be granted, it will render the Regional
Court action nugatory, in the sense that the very order which is to be set aside in the
Regional Court would by then be enforced by this court. The respondent applied that
the applicant's application be struck from the roll.

Discussion

[19] As discussed above, the respondent challenged the urgency with which this
application was brought. The respondent also contended that the applicant is
seeking an order enforcing the consent paper granted by the Regional Court. To this
end, the respondent s ubmitted that the court with the necessary jurisdiction to hear
this application is the court that granted the order, which is the Regional Court. I
consider it prudent to address these two preliminary points first, as, in my view, they
are dispositive of this application.

Urgency

[20] The legal principles applicable to the question of urgency are well -established
in our law. Urgency in applications primarily involves the abridgement of times
prescribed by the rules, and secondarily, the departure from established filing and
sitting times of the court. 1 Rule 6(12) of the Uniform Rules of Court confers courts
with a wide discretion to decide whether an application justifies enrolment on the
urgent court roll based on the facts and circumst ances of each case. 2 It is
peremptory that an applicant set out explicitly the circumstances on which he relies
to render the matter urgent, and the reason why he claims that he cannot be
afforded substantial relief at a hearing in due course. In other wo rds, an application
is urgent when an applicant cannot obtain substantial redress in due course. 3 The
degree of departure from the modes of service and time frame in the Uniform Rules
must be commensurate with the urgency in each case.4

[21] It is also trite that an applicant in an urgent application must give proper
consideration to the degree of urgency of his application, and tailor the notice of
motion to that degree of urgency. The degree of relaxation of the Rules and the
ordinary practi ce of a court depends upon the degree of urgency of a case. The

1 See Rule 6(12) (a) and (b) of the Uniform Rules.
2 Mogalakwena Local Municipality v Provincial Executive Council, Limpopo [2014] 4 AII 67 (GP) at

para 63; Caledon Street Restaurants CC v D’ Aviera 1998 JDR 0116 (SE) at 8.
3 Dlamini v City Manager of the City of Ekurhuleni Metropolitan Municipality [2023] ZAGPJHC 147 at
para 27.
4 Republikeinse Publikasie (Edms) Bpk v Afrikaanse Pers Publikasie (edms) Bpk 1972 (1) SA 773 (A)
at 782A-G.

degree of urgency and the relaxation of the Rules should not be greater than the
exigencies of the case demand.5

[22] In the present matter, it is common cause that the applicant signed
agreements of sale in respect of the Victoria Properties on 20 November 2024. The
respondent did not sign the said agreements as the seller of the properties. A letter
of demand was written to the respondent on 24 January 2025, in which it was
demanded that the respondent provide certain information and sign the Powers of
Attorney by 27 January 2025 to effect the transfer of the properties. Another
correspondence was sent to the respondent on 20 March 2025, in which it was
demanded that the Powers of Attorney be signed by the respondent by no later than
27 March 2025; failing which, court action would follow.

[23] On 20 May 2025, the conveyancer forwarded correspondence to the
respondent, requesting that the respondent sign the Powers of Attorney by 23 May
2025, failing which it would be accepted that the respondent and her current
husband, JAV, were not going to provide their cooperation and were not going to sign
the Powers of Attorney. The conveyancer received no response from the respondent,
her husband, or her attorneys.

[24] On 21 July 2025, the estate agent acting on behalf of the purchaser of the
properties sent a letter of breach and placed the sellers on terms , and subsequently,
the applicant brought this matter to court on an urgent basis. Mr Smit, counsel for the
applicant, argued that the urgency of this matter only arose on 21 July 2025, when
the letter of breach was sent. Upon careful consideration, I do n ot agree with this
proposition for several compelling reasons, which I will outline in detail below.

[25] The chronology of events described above clearly demonstrates that the
urgency in this application was self -created. Eight months before filing this
application, the applicant and the purchaser were aware that the respondent had not

application, the applicant and the purchaser were aware that the respondent had not
signed the sale agreement s or the Powers of Attorney. The applicant did nothing
other than send letters that the respondent must sign the Powers of Attorney. In the

5 Luna Meubel Vervaardigers (Edms) Bpk v Makin 1977 (4) SA 135 (W) at 137F.

letter of 20 March 2025, the applicant's legal representative requested the
respondent to sign the Powers of Attorney by no later than 27 March 2025, failing
which the applicant threatened to proceed with such actions as may be required,
including approaching the court for an order of actio communi dividundo, the cost of
which the respondent would be held liable.

[26] Notwithstanding, the applicant did not institute those intended proceedings.
The applicant only instituted these proceedings on an urgent basis after the estate
agent sent a letter of breach on 21 July 2025, in which the purchaser was enforcing
the purported sale agreements. As foreshadowed above, Mr Smit asserted that this
matter became urgent after the letter of breach was sent. In my view, this matter is
not urgent, and the letter of breach lacks substance to satisfy the requirement of
Rule 6(12) of the Uniform Rules. It is essential to emphasise that urgent applications
must be launched at the earliest opportunity, and valid and compelling reasons must
justify any delays. Additionally, an applicant is not allowed to create his/her own
urgency.6

[27] The applicant's difficulties do not end there. There is an insurmountable
hurdle on the applicant's path. The applicant relies on the letter of breach sent on 21
July 2025 as the basis for bringing this application on an urgent basis. In that
correspondence, the estate agent acting on behalf of her client, Omega Sibanda (the
purchaser), notes that should the Powers of Attorney not be signed within the
stipulated 10-day period, and should the transfers not proceed accordingly, her client
reserves the right to enforce its rights in terms of clause 7.2 of the respective
agreements of sale without further notice.

[28] It must be stressed that the sale agreements in respect of the Victoria
properties to which this application relates have not been countersigned by the
respondent in her capacity as the joint owner of those properties. No representative

respondent in her capacity as the joint owner of those properties. No representative
or agent acting on the written authority of the respondent sign ed the agreement on
behalf of the respondent. To this end, I agree with the views expressed by Mr
Engela, the respondent's counsel, that the agreements of sale in respect of the

6 Venter and Another v Els and Another 2024 (4) SA 305 (WCC) at par para 19.

Victoria properties have always been incomplete, invalid and unenforceable to the
knowledge of the applicant and the purchaser since their date of signature in
November 2024, more than eight months ago.

[29] Most importantly, section 2(1) of the Alienation of Land Act 68 of 1981
(Alienation of Land Act), provides that no alienation of land after the commencement
of this section shall 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. The result of non-compliance with section 2(1) of the Alienation of Land Act
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 .7 In Johnston v Leal,8 the Appellate Division,
as it then was, observed that the reason why the legislature selected, inter alia ,
contracts for the sale of land for such special treatment as far as formalities of
contract are concerned, was, no doubt, that it recogni sed that such contracts are
generally transactions of conside rable value and importance and that the terms and
conditions attached thereto are often intricate.9

[30] As previously mentioned, the alleged sale agreements have not been signed
by the respondent or her agent acting on her written authority. These sale
agreements are therefore, incomplete, invalid and unenforceable . Consequently,
given that the sale agreements were to the purchaser's and the applicant's
knowledge not countersigned by the respondent, the co -owner of the properties, the
letter of breach dated 21 July 2025 sent by the estate agent to the applicant has no
legal effect and is of no consequence. Thus, to use the unilateral signing of these
purported agreements of sale by the applicant more than eight months ago in an
attempt to make out a case for urgency is simply mistaken and cannot be sustained.
A proper case has therefore not been made out for urgency at all.

Jurisdiction

A proper case has therefore not been made out for urgency at all.

Jurisdiction


7 Johnston v Leal 1980 (3) SA 927 (A) at 939A-939D.
8 Ft 7 above, at 939D.
9 1980 (3) SA 927 (A) at 939A-939D.

[31] Regarding the question of jurisdiction, I appreciate that this court enjoys
inherent jurisdiction and has the authority to enforce decisions of the Regional Court.
I also appreciate that a rescission application does not suspend a court order.
However, from the affidavits of the parties filed on record, it is evident that the
pending proceeding s in the Region al Court explicitly address the validity and
enforceability of the consent paper, which the applicant seeks to enforce in this court.
Should the order in this application be granted, it will render the Regional Court
action nugatory in the sense that the very court order which is impugned in the
Regional Court would by then be enforced by this court.

[32] Notably, from the affidavits in these proceedings, it is apparent that the
pleadings in the Regional Court matter have reached t he stage of litis contestatio. In
my opinion, the facts of this matter do not justify the hearing of this matter in this
court. The Regional Court is well suited to address the issues raised by the parties.
This conclusion is further supported by the appli cant's prayer in this application for
payments of municipal rates, taxes, levies, insurance, utilities, and bond costs
related to the Victoria properties, which he claims he made after the final divorce
order was granted. The respondent, however, disputes this claim. Thus, it is evident
that there is a dispute of facts that can only be properly addressed by hearing viva
voce evidence.

[33] In conclusion, it is essential to remind ourselves that i n terms of section
29(1B)(a) of the Magistrates Court Act 32 of 19454, a court for a regional division, in
respect of causes of action, has jurisdiction to hear and determine suits relating to
the nullity of a marriage or a civil union and relating to divorce between persons and
to decide upon any question arising therefrom, and to hear any matter and grant any
order provided for in terms of the Recognition of Customary Marriages Act 120 of

order provided for in terms of the Recognition of Customary Marriages Act 120 of
1998. Moreover, a court for a regional division hearing a matter referred to in
paragraph (a) of section 29(1B) has the same jurisdiction as any High Court in
relation to such a matter.

Order

[34] Given all these considerations, the following order is granted.

34.1 The applicant’s application is hereby struck off the roll for lack of
urgency.
34.2 The applicant is ordered to pay the costs of this application on a party
and party scale, including the cost of counsel where so employed, on
Scale B.


_________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT


APPEARANCES:

For the applicant: Adv. Smit
Instructed by: Kemp Nabal Inc

For the Respondent: Adv Engela
Instructed by: Enderstein Malumbete Inc