Potgieter v Village and Others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Lawrence Lever J
• Judgment Date: 18 January 2022
• Court: Northern Cape Division
• Hearing Date: 14 January 2022
• Docket Number: 2651/2021

Lever J:

1.

This matter was argued before me on Friday 14 January 2022 as an

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opposed urgent application. I reserved judgment in the matter until Tuesday 18 January 2022.

2.

The applicant seeks an urgent interdict to restrain the first and second respondents from passing transfer of the property situate at No: [....] C[....] Road, Belgravia, Kimberley to the third respondent. This interdict is to operate pending an action by the applicant to claim transfer of the said property and that such action is to be instituted within 90 days of the granting of the order in which the said interdict is issued.

3.

The first respondent is the current registered owner of the said property. The first respondent opposes this urgent application. The second respondent, being the Registrar of Deeds for the appropriate Deeds Registry, does not oppose this application.

4.

The third respondent is the prospective purchaser in respect of whom the applicant seeks to interdict the property being transferred to. The third respondent has filed a notice indicating that she will abide the decision of this court.

5.

The interdict sought in this matter, pending the outcome of an action as contemplated in the Notice of Motion in this matter is for interlocutory relief. The requirements for such an interdict have been set out by Corbett J (as he then was) in the matter of L.F. BOSHOFF INVESTMENTS V CAPE TOWN MUNICIPALITY [1] as follows:

"(a) that the right which is the subject-matter of the main action and which he seeks to protect by means of interim relief is clear or, if not clear, is prima facie established, though open to some doubt;

(b) that, if the right is only prima facie established, there is a well- grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing his right;

(c) that the balance of convenience favours the granting of the of

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interim relief; and

(d) that the applicant has no other satisfactory remedy." [2]

6.

This statement of the rule is often summarised and shortened in today's practice. I have stated the rule in full because part (a) is particularly relevant to the present case. The present practice is to state that a 'prima facie' right is required. In most cases it is sufficient to deal with only whether a 'prima facie' right has been established. However, the applicant's Counsel, Mr Van Tonder is asking me to find that a 'prima facie' right has been established by the applicant and that certain aspects of applicant's case should be decided by the trial court. In other words, he is asking me to find a 'prima facie' right though open to some doubt.

7.

There has been an ongoing history of litigation between the applicant and the first respondent. For the purposes of the present urgent application, it is not necessary for me to deal with the history. It suffices to state that the property in respect of which an interdict was sought was previously attached to found alternatively confirm jurisdiction in a claim the applicant had/has against the first respondent. This matter was then settled with an agreement to market and sell the said property. Inter alia this agreement set out the basis upon which the said property would be valued, marketed and ultimately sold. Unfortunately, there were ongoing disputes in this process. Briefly, the property was overvalued for the current market.

8.

Ultimately, a written proposal was made by the first respondent's attorney in a letter dated 17 August 2021 addressed to the applicant's attorney. The substance of the said letter reads as follows:

"1. …

2. In an attempt to resolve any outstanding issues between the parties in relation to the property known as [....] C[....] Road, our client is prepared to sell the property to your client for an amount of R3 500 000.00 subject to the following;

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2.1 Your client will need to provide our client with the necessary guarantees within 21 days of the signing of the Deed of Sale;

2.2 Your client will be responsible for any transfer costs, fees and transfer duties relating to the transaction;

2.3 Should your client not be able to provide the necessary guarantees as stated above, the parties agree that the property can be marketed for a flat rate of R4 000 000.00 and your client will give her full co-operation in this regard;

2.4 If your client delivers the guarantees for the purchase price of R3 500 000.00, our client...