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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 2026-070920
In the matter between:
CARLA MELANIE SMITH Applicant
and
GREGORY JAMES PILLAY First Respondent
MIRANDA PILLAY Second Respondent
VAN DEVENTER AND VAN DE VENTER INC Third Respondent
CEIPROP CAPE (PTY) LTD T/A CHAS EVERITT
INTERNATIONAL PROPERTY GROUP Fourth Respondent
THE REGISTRAR OF DEEDS Fifth Respondent
Corum: Lekhuleni J
Summary: Application for interim interdict pending action for specific performance —
Requirements of interim interdict not established – election to abide or cancel contract -
conduct of the applicant abandoning claim for specific performance.
Heard: 2 April 2026
Delivered (electronically): 14 April 2026
JUDGMENT
LEKHULENI J:
Introduction
[1] This is an urgent application brought in terms of Rule 6(12) of the Uniform Rules
of Court for an interim order interdicting the first and the second respondents (‘the
respondents’) from transferring their property located at E […] close, Parow to any
person pending the finalisation of proceedings in this court in relation to a cla im for
specific performance for the transfer of the said property from the respondents to the
applicant. The respondents sold the impugned property to the first purchasers,
Mogamad and Reyana Nacerodien. The applicant is the second purchaser of the
said pr operty. The applicant’s offer to purchase was subject to the successful
cancellation of the first purchasers’ offer to purchase, which was subject to
suspensive conditions.
[2] The respondents opposed the applicant’s application. They averred that when th e
applicant signed the offer to purchase, she was fully aware that her offer constituted
a second offer and was expressly subject to the proper cancellation of the first offer
to purchase. The respondents asserted that first purchasers secured a mortgage
bond for the full purchase price of the property, thereby fulfilling the suspensive
condition in the offer to purchase. Accordingly, the sale of the property to the first
purchasers became unconditional and final, and the sale to the applicant lapsed by
operation of law. The applicant contests this assertion and has launched this
application to seek an interdict preventing the respondents from transferring the
property to the first purchasers.
The parties
[3] The applicant is a South African citizen who works and resides in San Francisco,
California, in the United States of America. The first and second respondents are
married in community of property and reside in Parow, Western Cape. The
respondents are currently the co -owners of the dispute d property. The third
respondent is Van de Venter and Van de Venter Inc, a company duly incorporated in
respondent is Van de Venter and Van de Venter Inc, a company duly incorporated in
accordance with the laws of South Africa and carrying on business as a firm of
attorneys, with its principal place of business located at High Street, R osenpark,
Tygervalley. The third respondent is cited in their capacity as the conveyancing
attorneys appointed by the sellers and as the primary agent through whom the
sellers would give effect to their intention to transfer ownership of the property. The
third respondent did not oppose the applicant’s application but instead filed a notice
to abide by the decision of this court.
[4] The fourth respondent is Ceiprop Cape (Pty) Ltd trading as Chas Everitt
International Property, a company duly incorporated in terms of the company laws of
South Africa and having its place of business located at […] T[…] Building,
Tygervalley, Western Cape. The applicant seeks no relief against Chas Everitt. Chas
Everitt is also cited due to the interest that they may have in these proceedings. The
fifth respondent is the Registrar of Deeds, Cape Town, the person in charge of the
Cape Town Deeds Registry and who is responsible for attesting, executing, and
registering deeds of transfer, as contemplated in the Deeds Registry Act 47 of 1937.
The applicant seeks n o relief against the Registrar, who is cited herein due to the
interest that they may have in these proceedings.
The applicant’s case
[5] In September 2025, the applicant and her family decided that she should relocate
from the US to South Africa. Accordingly, the applicant began searching for a house
in Cape Town in November 2025. The applicant’s sister contacted Henry White, an
estate agent employed by Chas Everitt, in December 2025 to inquire about the
property that i s the subject of the dispute. The applicant was notified that the
property was not available , as the respondents had entered into a purchase
agreement with the first buyer. Despite this, in January 2026, the applicant noticed
that the property was still li sted on Property24, and her sister subsequently
contacted Mr White again to ask whether the property was still available. In
response, Mr White informed the applicant’s sister that the property was back on the
response, Mr White informed the applicant’s sister that the property was back on the
market and conveyed the applicant’s interest i n purchasing the property and further
shared the applicant’s contact with Mr White.
[6] Mr White contacted the applicant on 7 January 2026. The parties discussed the
purchase price and deposit amount, and Mr White undertook to prepare the offer to
purchase the property. The applicant was informed that the first purchasers had
made an offer to purchase the same property. The applicant was also informed that
the first purchasers in respect of the same property had until 31 January 2026 to
obtain a bond, fail ing which their offer would be null and void. On 31 January 2026,
the applicant signed an offer to purchase, which was subsequently accepted by the
sellers, being the first and second respondents.
[7] The applicant offered to purchase the property for R4900 000. The offer was
subject to the successful cancellation of the first sale, which was set to expire on 31
January 2026. The offer to purchase was further subject to the condition that the
applicant pay a deposit of R1 000 000 and obtain a bond for the balance of the
purchase price within 20 days of the seller's acceptance of the offer, which would
have been 20 February 2026.
[8] On 02 February 2026, the third respondent, the respondents’ conveyancers,
addressed an email to the applicant with instructions regarding the payment of the
deposit and the securing of the bond. In the same email, the third respondent
restated that the sale of the property to the applicant was subject to the successful
cancellation of the first sale. Subsequent t hereto, the applicant paid a deposit of R1
000 000 into the third respondent's account on 10 February 2026. The applicant also
secured a home loan from First National Bank on 11 February 2026 and accordingly
notified the third respondent on 12 February 202 6, that she has paid the deposit
accordingly.
[9] Notwithstanding all the above, on 16 February 2026, the estate agent, Mr White,
informed the applicant that the respondents are proceeding with the sale of the
impugned property to the first purchasers. F ollowing this, the applicant engaged the
services of her attorney of record who addressed a letter dated 24 February 2026 to
Chas Everitt as well as the sellers (first and second respondents) informing them that
Chas Everitt as well as the sellers (first and second respondents) informing them that
she intended to hold them in breach of the o ffer to purchase and gave them seven
days to remedy the breach by giving written confirmation that they would in fact
proceed with the sale of the property to her. The applicant’s legal representative also
indicated that they were instructed that the first offer was not extended on 31
January 2026 and accordingly lapsed on that date, whereupon the applicant’s offer
to purchase became final, binding and enforceable between the parties.
[10] In response, the third respondent addressed an email to the applica nt’s attorney
disputing the alleged breach and the applicant’s alleged right to seek specific
performance in relation to the offer to purchase. The third respondent advised the
applicant’s attorney that the first offer did not expire on 31 January 2026. In stead, it
was duly extended with the incorporation of a continued marketing clause.
Furthermore, the third respondent stressed that the applicant’s offer was subject to
the lawful cancellation of the first offer, which the applicant was aware of. The third
respondent further emphasised that the respondents were not in breach of the offer
to purchase, and the applicant is not entitled to the legal remedies set out in the
email. In addition, the third respondent confirmed to the applicant ’s legal
representative that they are proceeding with the transfer of the property in respect of
the first offer. Accordingly, the applicant instituted these urgent proceedings to stop
the respondents from transferring the property to the first purchasers, as she seeks
to enforce a claim for specific performance to have the property transferred to her.
The first and second respondents’ case
[11] The first and second respondents are husband and wife, married in the
community of property. The respondents sold the property that is the subject of the
dispute in this matter to the first purchasers in terms of an offer to purchase (‘the first
offer’) dated 17 December 2025, together with Addendum A thereto, for a purchase
price of R4 800 000, subject to certain suspens ive conditions. In terms of the
Addendum, the first offer was subject to the sale of the first purchaser’s property by
31 January 2025. On 30 January 2026, the respondents noted that the first
31 January 2025. On 30 January 2026, the respondents noted that the first
purchasers’ property had not been sold in time as provided. The y then instructed the
third respondent (the conveyancer) in writing to grant the first purchasers an
extension of time of 28 days and to remove certain suspensive conditions in favour
of the first purchasers.
[12] The respondents asserted that they accepted the applicant’s offer to purchase
not only because both the first offer to purchase and the second offer to purchase
contain a continued marketing clause in terms of clause 4 of the agreement which is
a standard provision in the fourth respondent’s offer to purchase - but also because,
given that both offers were subject to suspensive conditions, it was commercially
prudent for the respondents to retain both offers if the suspensive condition attaching
to the first offer to purchase were not fulfilled. The respondents asserted that there is
nothing improper or irregular about this approach; it is a widely accepted and
reasonable practice in property transactions to ensure that a sale may proceed
should one offer fail due to non-fulfilment of its suspensive conditions.
[13] The respondent observed that the first purchasers secured a mortgage bond for
the full purchase price, thereby eliminating the need to sell their own property. The
sale to the first purchase rs became unconditional and final, and the sale to the
applicant lapsed by operation of law.
[14] The respondents further asserted that the applicant was not candid with the
court in her application, particularly in her founding affidavit. The respondent s note
that on 6 March 2026, the applicant was informed that the transfer of the property to
the first purchasers was proceeding. In response, the applicant stated that she would
start looking for another property with immediate effect. In addition, the ap plicant
demanded a refund of her deposit and stated that she had already found another
house and planned to make an offer on the same day.
[15] The applicant was subsequently refunded her deposit, with interest thereon, to
enable her to acquire another p roperty as requested. The respondent averred that
the applicant's conduct in requesting a refund of her deposit to acquire another
property amounts to an election to abandon her claim for specific performance or, at
the very least, undermines the credibili ty and bona fides of such a claim. The
respondents also submitted that the matter is not urgent and implored the court to
respondents also submitted that the matter is not urgent and implored the court to
dismiss the applicant’s application with costs.
Discussion
[17] For the sake of convenience, I deem it proper to address the prelimi nary issues
raised by the respondent s before I can consider this matter on the merits. The first
preliminary point raised by the first and second respondents was that the matter was
not urgent, alternatively that the urgency was self -created. The responden ts
contended that the applicant became aware as early as 16 February 2026 that the
property would be transferred to the first purchasers yet delayed for more than a
month before launching these proceedings. The respondents noted that the
applicant’s action s, including her request for a refund of her deposit to purchase
another property, are inconsistent with her claim for urgent interim relief and indicate
a lack of urgency.
[18] On the other hand, the applicant asserted that the matter is urgent. In her
founding affidavit, the applicant points out that while it has been a little over a month
since Mr White first informed her that the respondents intended to proceed in
transferring the property to the first purchasers, this is not an undue delay on her
part. The applicant also explained that she initially wished to resolve the matter out
of court; however, when the sellers expressly stated that they intended to transfer the
property to the first purchasers, notwithstanding the points raised in the
correspondence from her attorney, she was left with no option other than to seek the
assistance of this court. Following this decision, her attorney needed more time to
compile all relevant documentation and brief counsel on the matter, since she seeks
an order that can only be granted by the High Court.
[19] It is trite that an applicant who approaches the court on an urgent basis
essentially seeks an indulgence and to be afforded pre ference, to prevent the
prejudice and harm that may materialise or persist, if the conduct complained of
continues. See Soobedar and another v Minister of International Relations and
Cooperation and another (2021) 42 ILJ 1762 (LC) para 19. Central to a
determination of whether a matter is urgent is whether the applicant has, in the
determination of whether a matter is urgent is whether the applicant has, in the
founding affidavit, set forth explicitly the circumstances which render the matter
urgent, and the reason why substantial relief cannot be attained at a hearing in due
course. Thus, it is required of an applicant to adequately set out in his founding
affidavit the reasons for urgency, and to give cogent reasons why urgent relief is
necessary. Radebe and Others v Aurum Institute (2024) 45 ILJ 876 (LC) para 20.
[20] In the prese nt matter, from the parties' email correspondences, it is common
cause that the third respondent advised the applicant on 16 February 2026 that the
respondents were proceeding with the sale of the property to the first purchasers.
Subsequently, the applica nt indicated her intention to seek another property.
Moreover, on the said date, the applicant asked the third respondent when her
deposit would be repaid, as she had already found another property and planned to
make an offer on the same day. The applican t’s deposit with interest thereon was
accordingly paid to her. It is further common cause that, pursuant to further
correspondence between the parties, the applicant was again informed on 6 March
2026 that the respondents were proceeding with the first off er. Notwithstanding, the
applicant waited for just over a month to institute these proceedings.
[21] In my view, the urgency alleged by the applicant is directly attributable to the
applicant’s failure to act expeditiously since 16 February 2026. The applicant was
timeously informed of the respondents’ decision to proceed with the first offer to
purchase. Notwithstanding, the applicant did nothing. Instead, the applicant
demanded a refund of her deposit because she had found another property and
wanted to make an offer. As foreshadowed above, this application was instituted only
after a month had passed since the estate agent first informed the applicant that the
seller intended to proceed with transferring the property to the first purchaser.
[22] It is trite that urgent relief will not be granted in circumstances where it is
apparent that the urgency claimed is self -created. The excuse raised by the
applicant in her founding affidavit that she lives in America and that it would take a
significant amount of time for her to courier the original signed affidavit is an
afterthought and not borne out by the objective facts. The founding and the replying
afterthought and not borne out by the objective facts. The founding and the replying
affidavit were commissioned virtually. In light of recent developments in South
African law that authorise electronic commissioning, it is evident that the applicant's
explanation for the delay lacks substance and is inadequate. In my view, the urgency
pleaded is self-created.
[23] Self -created urgency is apparent when an applicant fails to submit t he
application at the earliest available opportunity. It is expected of litigants to react
immediately to prevent harm and/or prejudice, rather than standing back and doing
nothing until it is too late. Evidently, the urgency in this matter is self -created. The
applicant did not provide cogent reasons for delaying her application by a month.
The courts have made it clear that self -created urgency is not to be entertained by
an urgent Court. I am of the view that this matter is not urgent and must ordinarily be
struck from the roll.
[24] The difficulty in the applicant’s application does not end there. The applicant
failed to join the first purchasers. In her founding affidavit, the applicant explained
that, despite her reasonable request, both Chas Everitt and the third respondent
failed to provide her attorneys of record with the details of the first purchasers. As a
result, she was unable to properly cite them or serve this application on them. In the
answering affidavit, the respondents disclosed the nam es of the first purchasers.
Notwithstanding, the applicant failed to join them as parties in these proceedings
when she filed her replying affidavit. In my view, this is a fatal defect to the
applicant’s case.
[25] I must emphasise that as a general rule , if a party has an interest of such a
nature that it is likely to be prejudiced by a judgment given in the proceedings, such
a party ought to be joined. See Standard Bank of South Africa Ltd v Swartland
Municipality and Others 2010 (5) SA 479 at 482F. The test is whether o r not a party
has a ‘direct and substantial interest’ in the subject matter of the action, that is, a
legal interest in the subject matter of the litigation which may be affected prejudicially
by the judgment of the court. See Zingwazi Contractors CC v Eastern Cape
Department of Human Settlements 2021 (6) SA 557 (ECG) para 62. A 'direct and
substantial interest' has been held to be an inte rest in the right which is the subject -
matter of the litig ation and not merely a financial interest which is only an indirect
interest in such litigation. See Bohlokong Black Taxi Association v Interstate Bus
interest in such litigation. See Bohlokong Black Taxi Association v Interstate Bus
Lines (Edms) Bpk 1997 (4) SA 635 (O) at 644A-B.
[26] It cannot be disputed that the first purchasers have a direct and substantial
interest in this matter. The remedy sought by the applicant would invariably
materially affect their rights and interests. All parties who have a direct and
substantial interest in the relief sought are required to be joined to the proceedings.
In the absence of such joinder, the applicant’s application is materially defective. The
applicant noted this defect in reply and, instead of simultaneously bringing an
application to join the first purchasers, decided to cite them in her replying affidavit
without an application or an order joining them to these proceedings. In my view, the
applicant’s application falls to be struck from the roll for the non -joinder of the first
purchasers.
[27] Ordinarily, this finding should lead to the end of the dispute. However, for
completeness, I will briefly consider the applicant’s application on the merits. As
articulated above, the applicant seeks an interdict restraining the respondents fr om
transferring their property to the first purchaser or to any person pending the
finalisation of the applicant’s claim for specific performance for the transfer of the
property from the respondents to her, which the applicant seeks to institute within 30
days of granting the interdict.
[28] The primary remedy of specific performance in relation to a contract, assuming
that such a case is made out, holds true to this day . This principle was aptly
articulated by Innes J in the case of Farmers' Co -operative Society (Reg) v Berry
[1912] AD 343 at page 350, where he explained the concept in detail as follows:
"Prima facie every party to a binding agreement who is ready to carry out his
own obligation under it has a right to demand from the other party, so far as it is
possible, a performance of his undertaking in terms of the contract."
[29] A party cannot both cancel a contract and keep it in being. He has to make a
choice. In technical language he has an election. The doctrine of election is based
on the fact that enforcement and cancellation is inconsistent with each other or
mutually exclusive. See Ray v Ray and Others [2022] JOL 55149 (WCC) para 24.
Put differently, once a breach that justifies cancellation has occurred, the innocent
party is faced with an election: either to affirm or to cancel the contract. An innocent
party is faced with an election: either to affirm or to cancel the contract. An innocent
party is, of course, never obliged to cancel, and he or she need not make an election
immediately – the innocent party has a reasonable period of time in which to do so.
Oatorian Properties (Pty) Ltd v Maroun 1973 (3) SA 779 (A) at 785.
[30] An election, once made, is however final and irrevocable unless the other party
consents to its reversal. See Culverwell v Brown 1990 (1) SA 7 (A) at 17. Thus, if the
innocent party elects to uphold the contract, he or she cannot thereafter change his
or her mind and cancel the contract, unless the other party commits a fresh breach
justifying cancellation. Tracetec (Pty) Ltd v Business Equipment Asset Fin ance (Pty)
Ltd (3449/2022) [2025] ZAWCHC 181 (29 April 2025) para 34. Enforcement and
cancellation, being inconsistent with each other or mutually exclusive, the innocent
party must make an election between them and cannot both appropriate and
reprobate the contract. Segal v Mazzur 1920 CPD at 644 – 645.
[31] In the present matter, the applicant was informed that the respondents are
proceeding with the sale in respect of the first offer to purchase. The applicant
subsequently demanded the refund of her deposit. The applicant also looked for
another property and informed the respondents that she had found a new house and
was making a new offer. In my view, the applicant's conduct is inconsistent with her
claim for specific performance as set out in her founding affidavit. As correctly
pointed out by the resp ondents, the applicant’s conduct in requesting a refund to
acquire another property amounts to an election to abandon her claim for specific
performance, or, at the very least, undermines the credibility and bona fides of such
a claim.
[32] It is also co ncerning that the applicant in her founding affidavit did not disclose
the fact that she demanded the deposit, which was subsequently refunded. The
applicant appears to have hidden this information to buttress her alleged claim for
specific performance. Mo reover, the applicant did not disclose in her founding
affidavit that she had informed the respondents and the conveyancers that she had
found a new property and was making an offer to buy it. A significant concern
found a new property and was making an offer to buy it. A significant concern
regarding the applicant's submission is t hat the applicant did not satisfy the
requirements for an interim interdict. The applicant failed to establish a prima facie
right to claim the transfer of the property, as the first offer to purchase became
unconditional only upon the first purchasers sec uring full bond approval. All
suspensive conditions were met, and the offer became unconditional.
[33] Furthermore, the applicant has failed to establish a well -founded apprehension
of irreparable harm, as required for the grant of interim relief. The applicant has not
demonstrated that she will suffer any harm that alternative remedies cannot
adequately address. In fact, according to her own email correspondence, she has
obtained an alternative house. Crucially, the applicant has alternative remedies,
including a claim for damages. Accordingly, the applicant has failed to satisfy the
requirement that no adequate alternative remedies are available to her.
[34] Importantly, the balance of convenience overwhelmingly favours the
respondents, as any delay i n the transfer of the property would prevent them from
relocating to a retirement facility for the first respondent’s urgent medical care, while
the applicant, having already received a full refund of her deposit and indicated her
intention to purchase an alternative property, will suffer no comparable prejudice. As
correctly pointed out by the respondents’ counsel, granting the interdict sought would
cause irreparable harm to the respondents, particularly affecting the first
respondent’s health and his urgent need to relocate for medical care.
Order
[35] Given all these considerations, I am of the view that the applicant’s application
must fail. To this end, the following order is granted:
35.1 The applicant’s application is hereby dismissed.
35.2 The applicant is hereby ordered to pay the first and second respondents’
costs on a party and party scale, including the costs of counsel on scale B.
_________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
APPEARANCES
For the applicant: Adv McLean
Instructed by: Rossouw Attorneys
For the first and second respondents: Adv Moore
Instructed by: Van de Venter and Van de Venter Inc