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
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO: D12267/2024
In the matter between:
BHIJAL PROPERTIES (PTY) LTD FIRST APPLICANT
ABDUL KHALIQ NABEEBUCCAS SECOND APPLICANT
and
TONGAAT PAPER COMPANY (PTY) LTD FIRST RESPONDENT
AGAMBARUM CHENGAPPA NAIDOO SECOND RESPONDENT
VASAGEE NAIDOO THIRD RESPONDENT
VANASVERI NAIDOO FOURTH RESPONDENT
PAPERQUEST CC FIFTH RESPONDENT
LOOK TOWER CONSTRUCTION CC SIXTH RESPONDENT
SANTHAN RAVINDRAN MOODLEY N.O SEVENTH RESPONDENT
ORDER
The following order is made:
1. The points in limine pertaining to lack of urgency and lis alibi pendens are
upheld.
2. The current proceedings are stayed pending the finalisation of the
consolidated proceedings under case numbers D2261/2021 and D5045/2021.
3. The applicants are ordered to pay costs on scale C.
JUDGMENT
Sibiya AJ
Introduction
[1] This application arises against the backdrop of a series of ongoing litigation
between the applicants and the first t o fourth respondents, concerning the
interpretation and enforcement of two agreements: namely, Agreement of Sale of
Shares in Private Company (the 'Sale of Shares Agreement'), concluded in July
2016, and a subsequent Refresher Agreement, concluded in October 2017.
[2] The applicants, in the notice of motion, seek urgent interim relief in the
following terms:
'2.1 Pending the final determination of the action under case number
D2261/2021:
2.1.1 The First Applicant is authorised to lease the immovable prope rty
described as 2[…] E[...], M[...] Road, Tongaat, Kwazulu-Natal (the property);
2.1.2 Any lease agreement concluded by the First Applicant in terms of
paragraph 2.1.1 above shall terminate upon the action under case number
D2261/2021 being determined in favour of the First to Third Respondents.
2.2 Clauses 7 and 8.1 of the Rectified Refresher Agreement (annexed to
the notice of motion) are declared unenforceable;
2.3 The respondents, and any other party who oppose the application, are
directed to pay the costs, jointly and severally, one paying the others to be
absolved, such costs to be on a scale to be determined by the court in terms
of Uniform Rule 69(7).'
[3] No order is sought against the third and fifth respondents.
[4] The application is opposed by the first, fourth, sixth and seventh respondents
(hereinafter collectively referred to as the 'respondents') on two grounds: firstly, lack
of urgency, and secondly, the principle of lis alibi pendens.
[5] The respondents' principal contention is that a determination of ownership and
the right of occupation of the property, as well as the validity of clause 7 and 8.1 of
the Rectified Refresher Agreement, is already pending determination in the action
under case number D2261/2021.
[6] In the action under case number D2261/2021, the first to third respondents,
as plaintiffs, seek, inter alia, an order for the rectification of the Sale of Shares
Agreement and the Refresher Agreement. They further seek a declaratory relief to
the effect that the third respondent is entitled to occupy the property for purposes of
giving effect to the agreement between the parties, as rectified.
[7] The tw o salient clauses of the Rectified Refresher Agreement, which the
respondents, as plaintiffs, seek to have ratified by the court under case number
D2261/2021, read as follows:
'7. The Lease and Occupation Agreement is hereby cancelled, and it is
agreed th at Tongaat Paper will occupy Bhijal's premises on terms and
conditions which are to be negotiated and finalized in due course.
8.1 On signature hereof Paperquest and Tongaat Paper will immediately
occupy Bhijal's premises. It is recorded that Tongaat Paper was already in
occupation of the aforesaid premises prior to the signature of this agreement
and that it shall continue to occupy the premises pending the negotiation and
finalization on the terms and conditions of such lease with the parties.'
[8] In r esisting the action, the applicants, Farhana Nabeebuccas (the second
applicant's wife) and Paperquest, as defendants, in their plea, deny that the Sale of
Shares Agreement and the Refresher Agreement are susceptible to rectification.
They further dispute t hat the first respondent possesses any lawful entitlement to
occupy the property.
The parties
[9] The first applicant, Bhijal Properties (Pty) Ltd ('Bhijal'), is a private company
duly registered and incorporated in terms of the old Companies Act 61 of 1 973, and
has its registered office at 2 […] E[...], M[...] Road, Trurolands, Tongaat. It is the
registered owner of this property.
[10] The second applicant, Abdul Khaliq Nabeebuccas ('AK Nabeebuccas') is an
adult businessman and the current sole shareholder and director of Bhijal. He is also
the sole director of the fifth respondent, Paperquest CC ('Paperquest').
[11] The first respondent, Tongaat Paper Company (Pty) Ltd ('Tongaat Paper'), is
a company duly registered and incorporated in terms of the old Companies Act 61 of
1973, and has its registered offices at 3 rd Floor, Corporate Place, […] G[…]Street,
Durban.
[12] The second respondent, the late Agambarum Chengappa Naidoo ('AC
Naidoo'), prior to his passing on 6 February 2023, was a shareholder and d irector of
various entities collectively described as ACN Group Companies ('ACN Group')
which included the following entities:
(a) Bhijal Properties (Pty) Ltd;
(b) Hemal Properties (Pty) Ltd;
(c) Papco Paper Mills (Pty) Ltd;
(d) Rohini Properties (Pty) Ltd;
(e) Tongaat Paper (Pty) Ltd; and
(f) Spiral Paper (Pty) Ltd.
[13] The third respondent, Vasagee Naidoo, was married to the late AC Naidoo in
community of property.
[14] The fourth respondent, Vanasveri Naidoo ('Vanasveri'), is the daughter of the
late AC Naidoo and the sole director of Tongaat Paper. No order is sought against
her personally.
[15] The fifth respondent, Paperquest CC, is a close corporation with registere d
offices at 1 […] T[…] Place, Desainager, Tongaat. AK Nabeebuccas is its sole
member of the corporation.
[16] The sixth respondent, Look Tower Construction CC, is a close corporation
with registered offices at 2 […] C[…] Crescent, Buffelsdale, Tongaat. It is cited as an
interested party due to its alleged right of retention on the property in respect of
repairs and renovations it conducted.
[17] The seventh respondent, Santhan Ravindran Moodley N.O ('Moodley N.O') is
a nominated executor of the estate of t he late AC Naidoo. He is cited as an
interested party due to his application to the Master of the High Court to be
appointed the executor.
Background facts
[18] The factual matrix giving rise to the conclusion of both the Sale of Shares
Agreement and the Refresher Agreement is largely common cause and is recorded
in the agreements themselves. The principal issue in dispute pertains to the proper
interpretation and enforceability of the terms contained therein.
[19] Prior to 2016, Paperquest was involved in the business of supplying raw
materials and wastepaper to ACN Group on a monthly basis. The ACN Group was
involved in manufacturing toilet tissue paper by converting raw materials and waste
paper into bulk paper rolls. The paper rolls are then supplied to Paperquest to sell to
its customers at a price determined by Paperquest. On receiving payments from
customers, Paperquest would pay ACN Group what is due to it. As at 31 January
2016, Paperquest had determined that ACN Group was indebted to it in excess of R
4.5 million.
The Sale of Shares Agreement
[20] As a result of ACN Group's inability to discharge its indebtedness to
Paperquest, AC Naidoo, on 21 July 2016, entered into the Sale of Shares
Agreement, pursuant to which he sold his shares in Bhijal t o AK Nabeebuccas, for a
purchase price of R4.5 million.
[21] It is a term of the Sale of Shares Agreement that the purchase price shall not
be paid by AK Nabeebuccas, but shall be set off against the debt owed to
Paperquest, and once the final amount owed to Paperquest is accurately determined
and agreed on, the remaining debt will be repaid either by way of agreed monthly
instalments or by the parties taking the reconciled amount into consideration when
the resale of shares in Bhijal takes place.
[22] The parties agreed that AC Naidoo has a right to repurchase his shares within
a period of three years from the date of conclusion of the agreement, and upon the
exercise and implementation of this right, the parties shall be obliged to execute and
conclude a new repurchase of shares agreement, pursuant to which the purchase
price shall be calculated on a base amount of R4.5 million, subject to an annual
escalation of 15%.
[23] On 21 July 2016, Paperquest and Papco Mills concluded a written agreement
for the supply of raw materials and manufacture of toilet tissue paper ('The Toilet
Tissue Paper Agreement') while Bhijal, Tongaat Paper, and Paperquest concluded a
Tissue Paper Agreement') while Bhijal, Tongaat Paper, and Paperquest concluded a
written lease agreement pertaining to the property ('The Lease and Occupation
Agreement'). I am not privy to the terms of the two agreements, because they were
not submitted for my consideration.
The Refresher Agreement
[24] It is recorded in the Refresher Agreement that, on 15 May 2017, AK
Nabeebuccas and Bhijal, as applicants, instituted legal proce edings out of this court
under case number 5329/2017, alleging the non -fulfilment of obligations in terms of
the Toilet Tissue Paper Agreement and the Lease and Occupation Agreement. The
court papers were however, not placed before me.
[25] On 11 October 2017, AC Naidoo and AK Nabeebuccas, in an effort to resolve
the disputes which had arisen, entered into fresh negotiations and concluded the
Refresher Agreement.
[26] It is an express term of the Refresher Agreement that the Sale of Shares
Agreement would remain of full force and effect and would not be varied by the
conclusion of the Refresher Agreement. It was further agreed that AC Naidoo would
resign as director of Bhijal and, within seven days of signature of the Refresher
Agreement, wou ld instruct his accountant, Prushotham Subramoney Pillay (also
known as 'Kanthan'), to take all necessary steps to effect transfer of the shares to AK
Nabeebuccas, who would thereafter be appointed as the new director of Bhijal.
[27] The Toilet Tissue Pap er Agreement and the Lease and Occupation
Agreement were duly cancelled and superseded by the terms set out in clause 8 of
the Refresher Agreement.
[28] In terms of clause 8.1 of the Refresher Agreement, the parties agreed that on
signature of the Refresh er Agreement, Paperquest would immediately occupy the
premises of Bhijal.
[29] In terms of clause 9, it was resolved that, upon obtaining possession of the
share certificate evidencing his ownership of the shares in Bhijal, AK Nabeebuccas
shall withdraw t he legal proceedings instituted under case number 5329/2017, with
each party bearing their own costs of litigation.
Action under case number D2261/2021
[30] On 17 March 2021, the first to third respondents, as plaintiffs, instituted an
action under case number D2261/2021, in which they pleaded that the terms of the
Sale of Shares Agreement and the Refresher Agreement, in their current form, do
not accurately reflect the true and common intentions of the parties due to a bona
tide mutual error. They conten ded that the conclusion of the Sale of Shares
Agreement was intended solely to serve as security for indebtedness owed by the
ACN Group to AK Nabeebuccas, and was not intended to constitute an outright
disposal of AC Naidoo's shares in Bhijal.
Urgent application under case number D5045/2021
[31] While the action under case number D2261/2021 remains pending, the
applicants instituted an urgent interlocutory application under case number
D5045/2021 against Tongaat Paper, Vanesveri and Look Tower Constructio n CC, in
which they seek relief for the restoration of access to, and possession of the property.
This application has since been consolidated with the action under case number
D2261/2021.
[32] In terms of the court order dated 14 September 2024, under ca se number
D5045/2021, the parties were ordered and directed as follows:
'1. The First and Second Respondents are directed to furnish the Applicants
with a set of keys to the gate and premises at 2 […] E[...] M[...] Road (the
premises);
2. (That) the Applicants are ordered that:
2.1 (that) they and any person accompanying them may only access the
premises during the hours 08h00 and 16h30;
2.2 they shall at all times during the inspection be accompanied by a
supervisor or a designated representative of the Se cond Respondent which
supervisor/ representative shall remain out of earshot.
3. It is recorded that the Applicants shall give 24 hours' notice of their
intention to access and inspect the premises.
4. The Applicants are granted leave to file a counterclaim in case
D2261/2021 within 20 days of the grant of this order.
5. The parties to D2261/2021 are directed to convene a mediation and to
make discovery within 20 days of the filing of the plea to the cou nterclaim
failing which (the) parties' rights to proceed in terms of the Uniform Rules of
Court are reserved.
6. The parties shall agree (on) the identity of the mediator within 10 days
of filing of the plea in case D2261/2021 failing which the chairman of the bar
counsel shall appoint a qualified mediator.
7. The applicants are ordered to give the Respondents' attorneys K.
Maharaj Incorporated 10 working days written notice of their intention to
implement the terms of any contract for the sale of the premi ses or the sale of
the shares in the First Applicant.
8. The costs of D5045/2021 are reserved for determination by the
mediator or the court or an arbitrator who finally disposes of D2261/2021.'
[33] Pursuant to the aforementioned court order granted, th e parties have
conducted a joint inspection of the property. The legal representatives have
convened a pre -trial conference in terms of Uniform Rule 37, however the parties
have not convened mediation.
[34] Ms Deoduth, on behalf of the respondents, submit ted that the aforementioned
consolidated matter is presently awaiting enrolment for judicial case management
and allocation of a trial date.
[35] Bhijal has since delivered its counterclaim under case number D2261 /2021,
in which it claims, inter alia, an order for vacant occupation of the property as well as
payment of damages quantified as occupational rental, together with interest thereon.
payment of damages quantified as occupational rental, together with interest thereon.
In its pleadings, Bhijal avers that certain machinery and equipment owned by
Tongaat Paper remains situated on the premises, and that, as a consequence
thereof, Bhijal has been precluded from leasing its immovable asset to prospective
tenants.
Issues
[36] The issues for determination, in the present application, are the following:
(a) Whether the applicants have established grounds justifying the
enrolment of this matter on an urgent basis; and
(b) Whether the defence of lis alibi pendens is applicable.
Urgency
[37] It is trite law that a party seeking relief on an urgent basis bears the onus of
satisfying the court that the matter warrants deviation from the ordinary procedural
timelines. In terms of Uniform Rule 6(12)(b) the applicants are required to e xplicitly
set out the circumstances which they contend render the matter urgent, as well as
the reasons they allege they will not be afforded substantial redress at a hearing in
the ordinary course.
[38] The applicants' contention, in the founding affidav it, is that Bhijal, as the
owner of the property, and AK Nabeebuccas, by virtue of his financial contributions
towards the acquisition of the property and consequent legal interest therein, are
entitled to take steps to protect and preserve the commercial asset pending the final
determination of the parties' respective rights under case number D2261/2021.
[39] The applicants' primary contention is that the property is abandoned by
Tongaat Paper and is presently in a significant state of disrepair. On this basis, and
premised upon grounds of urgency, they seek vacant occupation of the property to
enable them to effect renovations and thereafter to lease the property to a third party.
The intended effect, they submitted, is the preservation and safeguarding o f the
property as a commercial asset, pending the final determination of the parties'
respective rights, in the pending action.
[40] The respondents have submitted, in limine, that the application falls to be
dismissed for lack of urgency, averring that the applicants unduly delayed in
instituting the proceedings. They contended that AK Nabeebuccas only deposed to
the founding affidavit on 07 October 2024, four days after the draft application
papers had been delivered and the certificate of urgency had been issued by
counsel, and that an additional day thereafter elapsed before the applicants caused
the application papers to be issued at court on 08 October 2024.
[41] The respondents contended further that the present application forms part of
a recurring pattern of urgent applications brought annually by AK Nabeebuccas,
purportedly with the intention of exhausting the respondents' fina ncial resources and
obstructing the progression of the pending legal proceedings, notwithstanding the
respondents' full knowledge that the issues pertaining to ownership and occupation
of the property remain unresolved and are the subject of adjudication in case number
D2261/2021.
[42] In reply, AK Nabeebuccas denies that there was any undue delay in the
institution of the urgent application. He submitted that, as at 03 October 2024, when
the draft application papers were delivered for his attention, he wa s out of town and
only returned during the course of the ensuing weekend. He was accordingly only in
a position to attend to the signature of the application papers on Monday, 07 October
2024, when a commissioner of oaths was available.
[43] Mr Veerasamy , on behalf of the applicants, submitted that the dispute
regarding urgency is relevant solely for the purposes of determining the issue of
costs, as the further conduct of the urgent application was regularised by consent in
terms of the court order granted on 25 October 2024.
[44] Ms Dheoduth, on behalf of the respondents, submitted that the respondents'
contention has always been that, due to the duplicity of the proceedings and
contention has always been that, due to the duplicity of the proceedings and
disputes of facts pertaining to the issues raised, this matter was not supp osed to be
instituted by way of an urgent application.
[45] In New Model Projects v Levenbro Centre (Pty) Ltd and Another, 1 the court, in
dealing with the determination of urgency, held that an owner of a property is entitled
to take urgent action to prevent the destruction of its property and if the applicant is
able to prove all the elements of its case, the matter is urgent.
[46] In the case of Volvo Financial Servi ces Southern Africa (Pty) Ltd v Adamsas
Tkolose Trading CC, 2 the court held that the 'destruction of property, or even
crippling commercial loss,' fall within a class of factors likely to justify urgency.
[47] The issues raised in the present application pertaining to urgency are
inextricably linked to the merits of the application. In the event the applicants
succeed in proving their case on the meri ts, such finding would militate in favour of a
conclusion that the matter is indeed urgent and that the applicants have discharged
the onus of establishing urgency. The converse, however, would equally hold true.
[48] I am in agreement with Mr Veerasamy's submission that a determination of
urgency is linked to the issue of costs to be awarded. I will revert to this point later in
the judgment when I deal with the issue of costs.
[49] Having addressed the issue of urgency in part, I now turn to consider th e
issues pertaining to the defence raised.
Lis alibi pendens
[50] The respondents submitted that the applicants, in their founding affidavit,
failed to disclose to the court that there are six pending matters before this court,
under different case numbe rs, pertaining to inter alia, the interpretation and
enforcement of the terms of the Sale of Shares Agreement and the Refresher
Agreement, and determination of ownership and occupancy of the property.
1 New Model Projects v Levenbro Centre (Pty) Ltd and Another 2025 JDR 0744 (GJ) para 5.
2 Volvo Financial Services Southern Africa (Pty) Ltd v Adamas Tkolose Trading CC 2023 JDR 2806
(GJ)para 6.
[51] The respondents submitted further that the enforceability and interpretation of
the Refresher Agreement, as rectified, are the subject of adjudication in case number
D2261/2021, consolidated with case number D5045/2021. Accordingly, they argue
that the rel ief presently sought in the notice of motion, if granted, would in effect
constitute a dismissal of the pending action under the aforementioned case number.
[52] The respondents averred that the summons under case number D2661/2021
seek to interrogate the clauses of the Refresher Agreement in their entirety and as
such the validity or invalidity of clause 7 and 8.1 require extrinsic evidence, in the
form of oral evidence, in order to determine and to give effect to the true intentions of
the parties. They averred that AK Nabeebuccas, by the present application,
intentionally avoids the finalisation of the pending matters because he seeks to deal
with the property on his own terms, to the prejudice of the respondents.
[53] The applicants dispute that the is sues raised in the present application are
already before the court in case number D2261/2021. They contended that for the
limited purpose of the present application, consideration of the issues for
determination should proceed on the respondents' own vers ion of the Rectified
Refresher Agreement. The contention is that, the court, in interrogating the terms of
the Rectified Refresher Agreement, ought to find that clause 7 and 8.1 thereof are
unenforceable to the extent that they provide for an agreement to agree in future
without providing a deadlock breaking mechanism.
[54] It is trite law that in order for a respondent to succeed with a plea of lis alibi
pendens, he/she must satisfy the court of the existence of the following essential
elements:3
(a) That there is litigation between the same parties;
(b) Based on the same cause of action; and
(c) That the same relief is sought in both.
3 Hassan and Another v Berrange NO 2012 (6) SA 329 (SCA) para 19.
[55] In Caesarstone Sdot -Yam Ltd v The World of Marbl e and Granite CC, 4 the
Supreme Court of Appeal in dealing with the principle of lis alibi pendens, held as
follows:
'[2] As its name indicates, a plea of lis a libi pendens is based on the
proposition that the dispute (lis) between the parties is being litigated
elsewhere and therefore it is inappropriate for it to be litigated in the court in
which the plea is raised. The policy underpinning it is that there sho uld be a
limit to the extent to which the same issue is litigated between the same
parties and that it is desirable that there be finality in litigation. The courts are
also concerned to avoid a situation where different courts pronounce on the
same issue with the risk that they may reach differing conclusions. It is a plea
that has been recognised by our courts for over 100 years.
[3] The plea bears an affinity to the plea of res judicata,which is directed at
achieving the same policy goals. Their close re lationship is evident from the
following passage from Voet 44.2.7:
"Exception of lis pendens also requires same persons, thing and cause. - The
exception that a suit is already pending is quite akin to the exception of res
judicata, inasmuch as, when a sui t is pending before another judge, this
exception is granted just so often as, and in all those cases in which after a
suit has been ended there is room for the exception of res judicata in terms of
what has already been said. Thus the suit must already ha ve started to be
mooted before another judge between the same persons, about the same
matter and on the same cause, since the place where a judicial proceeding
has once been taken up is also the place where it ought to be given its
ending."' (footnotes omitted)
[56] In Nestle (South Africa) Pty Ltd v Mars lnc, 5 the Supreme Court of Appeal, at
paragraph 16, held as follows:
'The defence of lis alibi pendens shares features in common with the defence
'The defence of lis alibi pendens shares features in common with the defence
of res judicata because they have a common underlying principle which is that
4 Caesarstone Sdot-Yam Ltd v The World of Marble and Granite CC 2013 (6) SA 499 (SCA)paras 2-3.
5 Nestle (South Africa) Pty Ltd v Mars Inc 2001 (4) SA 542 (SCA) para 16.
there should be finality in litigation. Once a suit has been commenced before
a tribunal that is comp etent to adjudicate upon it the suit must generally be
brought to its conclusion before that tribunal and should not be replicated (lis
alibi pendens). By the same token the suit will not be permitted to be revived
once it has been brought to its proper conclusion (res judicata). The same suit
between the same parties, should be brought only once and finally.'
[57] It is common cause that the consolidated matter under case number
D2261/2021 and D5045/202 is pending and is awaiting allocation of a judicial case
management and trial dates.
[58] The parties herein are the same as in the aforementioned consolidated
matters. In the case of Ceasarstone, 6 it was held that it is immaterial that the party
raising the plea of li s alibi pendens is the plaintiff in the other proceedings. In both
matters, the parties seek the interrogation of the Refresher Agreement in order to
give effect to the parties' respective rights to the occupation and ownership of the
property. On this basis the requirement of the same cause of action is satisfied.
[59] The applicants' contention that the analysis of the issues herein is distinct to
the interrogations sought in case number D2261/2021 is misplaced. In order for this
court to analyse the iss ues raised herein, and to find that clause 7 and 8.1 are
unenforceable, the court would be required to interpret the terms of the Refresher
Agreement and to make determinations pertaining to the right of occupancy and
ownership of the property. The same in terrogations await the court in the pending
consolidated matter, the subject matter being to give effect to the parties' true
intentions in concluding the Refresher Agreement.
[60] Ms Dheoduth submitted that, the applicants, having formulated the view tha t
the issues raised in the present application warranted urgent judicial intervention,
the issues raised in the present application warranted urgent judicial intervention,
and being fully aware that the interpretation of the terms of the Refresher Agreement,
as rectified, is currently pending judicial adjudication in case number D2261/2021,
ought to have approached a senior judge to seek authorisation for the expedited
6 Caesarstone Sdot-Yam Ltd ibid fn 4.
hearing of the consolidated action, rather than to duplicate the dispute by instituting
the present application.
[61] In the case of Eravin Construction CC v Twin Oaks Estat e Development (Pty)
Ltd,7 the court at paragraph 26, held that 'the principles behind the plea of lis alibi
pendens and res judicata are, like estoppal also founded on publ ic policy to avoid
multiplicity of actions in order 'inter alia' to conserve the resources of the courts and
litigants'.
[62] I have noted that, the applicants, while disputing the applicability of the
defence of lis alibi pendens, conceded that the effec t of the granting of the
declaratory relief sought would dispose of and effectively terminate the action
instituted under case number D2261/2021.
[63] Having found that the three essential elements pertaining to the defence of lis
alibi pendens are presen t in this case, I find that there will be duplication of litigation
processes to make determinations pertaining to occupancy of the property and to
allow the interrogation of clause 7 and 8.1 of the Rectified Refresher Agreement to
proceed herein.
[64] The parties are at liberty to deal with the merits of the present application
once litigation in the consolidated matter under case number D2261 /2021 and
D5045/2021 has been disposed of. Should they decide to proceed, it would be for
the court, at that st age, to determine whether the principle of res judicata is
applicable or not.
[65] Having considered the submissions made, the totality of the evidence and the
relevant case law, I come to the conclusion that the respondents have succeeded in
proving the existence of the three essential elements for the defence of lis alibi
pendens.
7 Eravin Construction CC v Twin Oaks Estate Development (Pty) Ltd [2012] ZANWHC 27.
[66] The applicants, having failed on the merits of their case, accordingly fail on
the issue of urgency.
Costs
[67] The respondents argued that costs be ordered on scale C.
[68] Costs follow the results. In determining the scale of costs applicable herein, I
considered the history of litigation between the parties and my finding that the
present application amounts to duplication of the court processes. The respondents
should not be put out of pocket by the applicants' ill -considered conduct of
duplicating court processes.
Order
[69] In the result, the following order is made:
1. The points in limine pertaining to la ck of urgency and lis alibi pendens are
upheld.
2. The current proceedings are stayed pending the finalisation of the
consolidated proceedings under case numbers D2261/2021 and
D5045/2021.
3. The applicants are ordered to pay costs on scale C.
SIBIYA AJ
CASE INFORMATION
For the applicants: I Veerasamy (Mr)
Instructed by: V Chetty Incorporated
Suite 3, 6 Rydall Vale Office Park,
Douglas Saunders Drive
La Lucia Ridge, Durban
Email: rev@vchetty.co.za
Ref: MR CHETTY/NG/N15149
For the first, third, fourth, sixth D Dheoduth (Ms)
and seventh respondents:
Instructed by: K Maharaj Incorporated
Unit 12, The Glass House
309 Umhlanga Rocks Dr
Umhlanga
Tel: 031 305 4925
Email: mahair@kmaharaj.co.za
Ref: RM/MG/N264
For the second respondent: No appearance
Email: mahair@kmaharai.co.za
Fifth respondent: No appearance
C/O V Chetty Inc
Email: rev@vchetty.co.za
Heard on: 25 April 2025
Delivered on: 31 July 2025