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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
Case no: D9296/2024
In the matter between:
THE MEC FOR HUMAN SETTLEMENTS KZN APPLICANT
and
MOHAMMED YASEEN HOOSEN FIRST
RESPONDENT
MOHAMMED ALLI HOOSEN SECOND
RESPONDENT
MADUPHA’S BUSINESS ENTERPRISE CC THIRD
RESPONDENT
ETHEKWINI MUNICIPALITY FOURTH
RESPONDENT
REGISTRAR OF DEEDS, PIETERMARITZBURG FIFTH RESPONDENT
SHERIFF, INANDA AREA ONE SIXTH
RESPONDENT
ORDER
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The following order is made:
1. The deed of sale entered into by the first respondent as a purchaser and the
third
respondent as a seller for the sale of the immovable property described as Lot
3[...] S[...], situated in the City of Durban, Administrative District of Natal, in
extent 420 (four hundred and twenty) square meters, held under title deed
number T5418/93 is set aside.
2. The deed of sale entered into by the second respondent as a purchaser and
the
third respondent as a seller for the sale of the immovable property described as
Lot 9[...] S[...], situated in the City of Durban, Administrative District of Natal, in
extent 508 (five hundred and eight) square meters, held under title deed
number T13080/98 is set aside.
3. The fifth respondent is interdicted and restrained from passing transfer of the
properties described in paragraphs 1-2 above, unless authorised to do so by
the applicant.
4. The counter-application of the first and second respondents is dismissed.
5. The first and second respondents are directed to pay the costs of this
application, such to be taxed on scale B.
JUDGMENT
M S Hadebe AJ
Introduction
[1] This is an application to set aside the deed s of sale entered into by the first,
second and third respondent s in respect of the sale of the immovable properties
described as follows:
(a) Lot 3[...] S[...], situated in the City of Durban, Administrative District of Natal,
in extent 420 (four hundred and twenty) square meters, held under title deed
number T5418/93 (Lot 3[...]).
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(b) Lot 9[...] S[...], situated in the City of Durban, Administrative District of Natal, in
extent 508 (five hundred and eight) square meters, held under title deed
number T13080/98 (Lot 9[...]).
[2] The applicant is also seeking an order restraining and interdicting the fifth
respondent from passing transfer of Lot 3[...] and Lot 9[...], unless authori sed to do
so by the applicant.
[3] The first and second respondents have fi led a counter-claim where in the
following orders are sought:
‘1. That the applicant be and is hereby directed to sign all such documents and do all such
things as may be necessary to give effect to the order of this Honourable court dated the 3rd
December 2020 under case no: D5209/2020;
2. That in the event of the Applicant failing, within 3 months of the grant of this order, to
comply with the order in paragraph 1 hereof, then in such event, the Sixth respondent be
and is hereby directed to sign all such documents and do all such things may be necessary
on behalf of the applicant so as to give effect to the provisions of the order of this
Honourable Court dated the 3rd December 2020 under case no: D5290/2020.’
Background facts
[4] This matter emanates from the sale agreements concluded between the first,
second and third respondents for the sale of Lot 9[...] and Lot 3[...] on 8 August 2017
and 14 August 2017, respectively. The first and second respondents instituted an
action against the third and fourth respondents seeking an order directing the third
respondent to take all necessary steps to give effect to the transfer of Lot 3[...] and
Lot 9[...] from the fourth respondent to the first and second respondent s. A judgment
by default was granted in favor of the first and second respondent s on 3 December
2020 by Pillay J. It appears that the service of the court order to the applicant
triggered this application.
Issues
[5] The court is called upon to decide on the following issues:
Main application
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(a) Whether the sale agreements concluded by first, second and third
respondents for Lot 3[...] and Lot 9[...] are to be set aside.
(b) Whether the fifth respondent is to be interdicted and restrained from passing
transfer of the properties, unless authorised to do so by the applicant.
Counter -application
(a) Whether the applicant is to be directed to sign all such documents and do all
such things as may be necessary to give effect to the order of Pillay J.
(b) Whether the sixth respondent is to be directed to sign all such documents and
do all such things as may be necessary on behalf of the applicant to give
effect to (a) above in the event of the applicant failing to comply with the order.
[6] The following issues are also in dispute:
(a) the ownership of Lot 3[...] and Lot 9[...];
(b) the validity and lawfulness of the sale agreements between the first, second
and third respondents;
(c) the points in limine of res judicata and estoppel;
(d) the practical effect of the order sought by the applicant; and
Common cause
[7] The following issues are common cause:
(a) the first, second and third respondents entered into sale agreements for the
sale of Lot 3[...] and Lot 9[...];
(b) the first and second respondents obtained judgment by default against the
third respondent directing the third respondent to do all things necessary to
transfer the properties to the first and second respondents respectively;
(c) the applicant was not a party in the acti on instituted by the first and second
respondents under case no: D5290/2020; and
(d) that the order granted dated 3 December 2020 is not binding on the applicant.
Application for condonation
[8] The first, second and fourth respondents brought applica tions for condonation
for the late filing of their heads of argument . The applications w ere unopposed.
Consequently, the applications were granted.
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Matter under case no: D5209/2020
[9] It became imperative to peruse the court file under case no: D5209/2020
wherein default judgment was granted. The following was noted in the file:
(a) The action was instituted on 12 August 2020 by the first and second
respondents against the third and fourth respondent s. Summons was served
on the third and fourth respondents on 14 August 2020 and 31 August 2020,
respectively.
(b) The third and fourth respondents did not defend the action . Hence, default
judgment was granted.
(c) The applicant instituted an application seeking an order for leave to intervene
and join the proceedings as a third defendant in the main action. It also sought
an order to set aside the default judgment .
(d) On 5 February 2024, t he application was adjourned to 16 February 2024 and
the applica nt was granted leave to supplement its papers. On 16 February
2024, the matter was removed from the roll.
Submissions by the applicant
[10] The applicant submitted that Lot 3[...] and Lot 9[...] are registered and owned
by the KwaZulu-Natal Department of Housing (the Department). The properties were
passed to the KwaZulu -Natal Provincial Housing Development Board on 28 May
1998 by virtue of s 14(2)(a) of the Housing Act 107 of 1997 (Housing Act). It was
further submitted that the Department has not signed the sale agreements selling Lot
3[...] and Lot 9[...] and has no intention to do so. Relying on s 2(1) of the Alienation of
Land Act 68 of 1981 (the Act) and the judgment of Legator McKenna Inc and Another
v Shea and Others,1 the applicant submitted that the sale agreements entered into
between the first, second and third respondents in relation to the sale of Lot 3[...] and
Lot 9[...] were unlawful and of no force and effect.
[11] In dealing with the point s in limine of res judicata and estoppe l raised by the
first and second respondents, the applicant submitted that it was not a party in the
first and second respondents, the applicant submitted that it was not a party in the
action under case no: D5209/2020 . It further submitted that the issues that were
1 Legator McKenna Inc and Another v Shea and Others [2008] ZASCA 144 ; 2010 (1) SA 35 (SCA)
para 22.
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adjudicated upon in case no: D5290/2020 are not similar to this matter ; and that the
order granted in case no: D5290/2020 was for specific performance directin g the
third respondent to effect transfer of the properties.
[12] In relation to the practical effect of the order sought by the applicant, it was
submitted that the Department remains the owner of Lot 3[...] and Lot 9[...]. It was
argued that the orders sought in this matter will have a practical effect on the parties.
The applicant further submitted that the relief sought in the counter -application has
no legal foundation in the form of a deed of al ienation between the Department and
the first and second respondents.
Submissions by the fourth respondent
[13] In supporting the applicant’s application, the fourth respondent argued that the
disputed transactions between the first, second and third respondents emanated
from the fraudulent misrepresentation made by the third re spondent. The fourth
respondent submitted that t he third respondent had no right to dispose of Lot 3[...]
and Lot 9[...]. It further submitted that it does not own the properties but that the
applicant owns them . Also, it was argued that the third respondent admitted in an
affidavit that the sale agreement s between the first, second and third respondents
were concluded as a result of the third respondent’s error.
Affidavit by the third respondent
[14] The third respondent does not oppose the application and counter-application.
Ms Madupha Lindiwe Beauty Ntombela, who is the Director of the third respondent
filed an affidavit dated 17 October 2024. The following is recorded in her affidavit:2
‘1.
It was an error for me to have entered into a sale agreement with the first and second
respondents in respect of the “Lot 3[...] S[...] ” and Lot 9[...] S[...] ”, however when I
discovered that I made an error I notified Mohammed Yaseen Hoosen and
Mohammed Alli Hoosen that I did not intend proceeding.
2.
Mohammed Alli Hoosen that I did not intend proceeding.
2.
2 Pages 251-252 of the indexed papers.
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However, Mohammed Yaseen Hoosen and Mohammed Alli Hoosen still went ahead
in proceeding with the matter, which I was not made aware.’
Submissions by the first and second respondents
[15] The first and second respondent s submitted that the issue of the purchase
and sale agreements has been finali sed and there is a court order dated 3
December 2020 in place. They submitted that the said court order is binding until set
aside. They disputed that the applicant is the owner of Lot 3[...] and Lot 9[...] as the
applicant relies on the provisions of s 14(2) (a) of Housing Act. It was submitted that
the applicant has no inherent right to retain the properties in question as a provincial
department as the Housing Act clearly indicates that the said properties must be
transferred to the Municipality in whose jurisdiction they are situated.
[16] It was further submitted that the applicant has failed to effect registration of
transfer of the properties into the name of the fourth respondent despite the order of
court requiring the transfer of the properties to the fourth respondent for onward
transfer to the first and second respondents. The first and second respondents
further submitted that the applicant has failed to set aside the order of court directing
transfer of the properties which order must be given effect to.
Applicable legal principles
Compliance with s 2(1) of the Act
[17] The following words are defined in the Act:
‘“contract”-
(a) means a deed of alienation under which land is sold against payment by the purchaser
to, or to any person on behalf of, the seller of an amount of money in more than two
instalments over a period exceeding one year;
(b) includes any agreement or agreements which together have the same import, whatever
form the agreement or agreements may take;’
‘“owner”- in relation to land, means the person in whose name that land is registered in the
deeds office concerned, and also any successor in title of such person;’
deeds office concerned, and also any successor in title of such person;’
‘“seller”- means, in Chapter II, any person who alienates land in terms of a contract or any
other person to whom the obligation of that person to give transfer of land in terms of a
contract has passed;’
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[18] Section 2(1) of the Act provides that:
‘No alienation of land after the commencement of this section shall, subject to the provisions
of section 28, be of any force or effect unless it is contained in a deed of alienation signed by
the parties thereto or by their agents acting on their written authority.’ (My emphasis.)
Section 28 deals with the consequences of deeds of alienation which are void or are
terminated. It provides that:
‘(1) Subject to the provisions of subsection (2), any person who has performed partially or in
full in terms of an alienation of land which is of no force or effect in terms of section 2 (1), or
a contract which has been declared void in terms of the provisions of section 24 (1) (c), or
has been cancelled under this Act, is entitled to recover from the other party that which he
has performed under the alienation or contract, and-
(a) the alienee may in addition recover from the alienator…
(b) the alienator may in addition recover from the alienee…
(2) Any alienation which does not comply with the provisions of section 2 (1) shall in all
respects be valid ab initio if the alienee had performed in full in terms of the deed of
alienation or contract and the land in question has been transferred to the alienee.’
[19] The main thrust of the applicant ’s argument was that the deeds of sale
between the first, second and third respondents were not in compliance with s 2(1) of
the Act. In Cooper and Another NNO v Curro Heights Properties (Pty) Ltd ,3 the
Supreme Court of Appeal (the SCA) held that:
‘The result of non-compliance with s 2(1), is “that the agreement concerned is of no force or
effect. This means that it is void ab initio and cannot confer a right of action. ”’ (Footnote
omitted.)
Points in limine of res judicata and estoppel
[20] The first and second respondents argued that there is a court order directing
that the properties in question be transferred to them. They also argued that the
that the properties in question be transferred to them. They also argued that the
applicant is estopped from contending that they are not entitled to take transfer. The
SCA in Nestlé (South Africa) (Pty) Ltd v Mars Inc4 held that:
‘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 there should be
finality in litigation. Once a suit has been commenced before a tribunal that is competent to
3 Cooper and Another NNO v Curro Heights Properties (Pty) Ltd [2023] ZASCA 66; 2023 (5) SA 402
(SCA) para 15.
4 Nestlé (South Africa) (Pty) Ltd v Mars Inc 2001 (4) SA 542 (SCA) para 16.
9
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.’
[21] In Transalloys (Pty) Ltd v Mineral-Loy (Pty) Ltd,5 the SCA held that:
‘[22] For res judicata to operate it must be shown that the earlier judgment relied upon was a
final judgment, and that there must be identity of parties and of the subject -matter in the
former and in the present litigatio n. This court in Prinsloo NO & others v Goldex 15 (Pty) &
another [2012 ZASCA 28; 2014 (5) SA 297 (SCA) described the res judicata and the issue
estoppel as follows:
“[10] The expression “res iudicata ” literally means that the matter has already been
decided. The gist of the plea is that the matter or question raised by the other side
had been finally adjudicated upon in proceedings between the parties and that it
therefore cannot be raised again. According to Voet 42.1.1, the exceptio was
available at common law if it were shown that the judgment in the earlier case was
given in a dispute between the same parties, for the same relief on the same ground
or on the same cause (idem actor, idem re et eadem causa petendi) (see eg National
Sorghum Breweries Ltd (t/a Vivo African Breweries) v International Liquor Distributors
(Pty) Ltd [2000] ZASCA 159; 2001 (2) SA 232 (SCA) ([2001] 1 All SA 417) at 239F-H
and the cases there cited). In time the requirements were, however, relaxed in
situations which gave rise to what became known as issue estoppel. This is
explained as follows by Scott JA in Smith v Porritt and Others 2008 (6) SA 303 (SCA)
para 10:
‘Following the decision in Boshoff v Union Government 1932 TPD 345 the ambit of
the exceptio res iudicata has over the years been extended by the relaxation in
the exceptio res iudicata has over the years been extended by the relaxation in
appropriate cases of the common -law requirements that the relief claimed and the
cause of action be the same (eadem res and eadem petendi causa) in both the case
in question and the earlier judgment. Where the circumstances justify the relaxation
of these requirements those that remain are that the parties must be the same ( idem
actor) and that the same issue ( eadum quaestio) must rise. Broadly stated, the latter
involves an inquiry whether an issue of fact or law was essential element of the
judgment on which reliance is placed. Where the plea of res iudicata is raised in the
absence of a commonplace to adopt the terminology of English law and to speak of
issue estoppel. But, as was stressed by Botha JA in Kommissaris van Binnelandse
5 Transalloys (Pty) Ltd v Mineral-Loy (Pty) Ltd [2017] ZASCA 95.
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Inkomste v Absa Bank Bpk 1995 (1) SA 653 (A) at 669D, 667J-671B, this is not to be
construed as implying an abandonment of the principles of the common -law in favour
of those of English law; the defence remains one of res iudicata. The recognition of
the defence in such cases will however require careful scrutiny. Each case will
depend on its own facts and any extension of the defence will be on a case -by-case
basis (Kommissaris van Binnelandse Inkomste v Absa (supra) at 670E -F). Relevant
considerations wil l include questions of equity and fairness, not only to the parties
themselves but also to others….’”’
Analysis
[22] The action under case no: D5209/2020 was instituted against the third and
fourth respondents. The applicant was not a party to the action and had no interest
therein save for the involvement of the properties owned by it. The relief sought by
the applicant in this application is not similar to the ones that were sought in the
intervention application which was removed from the roll . Also, the order dated 3
December 2000 does not direct the applicant to do anything. The point s in limine
raised by the first and second respondents that the relief sought by the applicant
would be of no practical effect if granted and that the issue has already been
decided, are incorrect in my view. When default judgment was granted, the court was
not privy to the fact that the applicant owned the properties in question . I have no
doubt that Pillay J would not have granted default judgment had she been aware that
the fourth respondent did not own the properties and that the third respondent did
not have the authority to sell the properties. The points in limine raised by the first
and second respondents cannot succeed.
[23] On the issue of ownership, I do not understand the first and second
respondents’ argument against the following background:
(a) according to the deed s office, Lot 3[...] and Lot 9[...] are registered under the
name of the applicant;
name of the applicant;
(b) the third respondent confirmed that it erroneously sold the properties as the
properties are owned by the applicant and this was brought to the attention of
the first and second respondents; and
(c) the fourth respondent supported the applicant’s application and confirmed that
it does not own the properties.
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[24] It is apparent that the sale agreements between the first, second and third
respondent in relation to the sale of Lot 3[...] and Lot 9[...] are not in accordance with
the provisions of the Act, in particular s 2(1). The said agreements were not signed
by the owner (applicant) or its agent. I agree with the applicant’s submissions that
the agreements are to be set aside. The applicant is also seeking an order
interdicting and restraining the fifth respondent from passing transfer of Lot 3[...] and
Lot 9[...] unless authorized to do so by the applicant. Considering the background of
the matter, I am of the view that the relief sought is to be granted.
[25] In regard to the first and second respondents’ counter -application, they are
seeking an order directing the applicant to sign all such documents and do all such
things as may be necessary to give effect to the order dated 3 December 2020.
There is no legal basis for the relief sought by the first and second respond ents.
Consequently, the counter-application is to be dismissed.
Order
[26] I accordingly make the following order:
1. The deed of sale entered into by the first respondent as a purchaser and
the third respondent as a seller for the sale of the immovable property
described as Lot 3[...] S[...], situated in the City of Durban, Administrative
District of Natal, in extent 420 (four hundred and twenty) square meters,
held under title deed number T5418/93 is set aside.
2. The deed of sale entered into by the second respondent as a purchaser
and the third respondent as a seller for the sale of the immovable
property described as Lot 9[...] S[...], situated in the City of Durban,
Administrative District of Natal, in extent 508 (five hundred and eight)
square meters, held under title deed number T13080/98 is set aside.
3. The fifth respondent is interdicted and restrained from passing transfer
of the properties described in paragraphs 1-2 above, unless authorised
to do so by the applicant.
to do so by the applicant.
4. The counter-application of the f irst and second respondents is
dismissed.
5. The first and second respondents are directed to pay the costs of this
application, such to be taxed on scale B.
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______________
M S HADEBE AJ
Appearances
Matter heard on: 20 February 2026
Judgment delivered on: 09 June 2026
For the applicant: Ms G Z Gumede
Instructed by: The State Attorney, KwaZulu-Natal
For the 1st and 2nd respondents: Mr R Mohamed
Instructed by: G.H Ismail Incorporated
For the fourth respondent: Mr K.I Mshengu
Instructed by: Luthuli Sithole Attorneys