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IN THE HIGH COURT OF SOUTH AFRICA

DURBAN AND COAST LOCAL DIVISION

CASE NO. 13798/07

In the matter between:

SURAYA ESSOP ISMAIL APPLICANT

and

NAGIAH KISTENSAMY FIRST RESPONDENT

PONAMA KISTENSAMY SECOND RESPONDENT

REGISTRAR OF DEEDS THIRD RESPONDENT

______________________________________________________________

JUDGMENT

LUTHULI AJ

[1]. The applicant seeks an order against the first and second respondents ordering them to sign all documents and to do all things necessary in order to effect transfer of certain immovable property into the name of the applicant and other ancillary relief. No relief is sought against the third respondent. The application is opposed by the second respondent. The first and third respondents are not opposing the application. The applications made from the bar on behalf of the applicant for the filing of a supplementary affidavit and for adjournment of the hearing of this matter, were dismissed.

[2] The following facts are common cause between the parties. On
15 September 2003 the applicant and the first and second respondents entered into an agreement of purchase and sale of certain property situated at 14 Tollbury Place, Eastbury, Phoenix, which property was to be registered in the name of the seller. The seller was the first and second respondents and the purchaser was the applicant in this matter. The purchase price was R25 000.00. One of the suspensive conditions was

“This sale is therefore conditional upon the seller concluding a purchase and sale agreement with Ethekwini Municipality and taking transfer as aforesaid and/or the Ethekwini Municipality granting consent to the transfer in terms of this agreement”

The property was subsequently transferred to the first and second respondents subject to a special condition that for a period of two years from the date of the conclusion of the transfer (16 September 2005) the first and second respondents

“shall not without the written consent of the seller, cede, alienate, pledge or otherwise dispose of his rights under this agreement”.

The abovementioned period of two years has now expired. On
15 December 2003 the applicant paid the sum of R25 000.00 to the first and second respondents. On the same day the first and second respondents signed an acknowledgment of debt for a sum of
R25 000.00. It has already been mentioned that the agreement of purchase and sale between the applicant and the first and second respondents was also signed on 15 September 2003. All the suspensive conditions have been fulfilled. Despite demand the first and second respondents have refused or failed or neglected to comply with the purchase and sale agreement. The first and second respondents tried to sell the aforementioned property to another person in 2003 in the sum of R75 000.00 but the applicant interdicted that sale.

[3] The second respondent’s case is that she and the first respondent were misled into signing the purchase and sale agreement and therefore she disputes its validity. The second respondent alleges that she is illiterate and she believed that she was signing an acknowledgement of debt on 15 September 2003. She signed by affixing her thumb print on the document. She and the first respondent did not have the intention to sell the property at that stage. They were in financial difficulties then and the applicant lent money to them to have water and lights re-connected. They signed the acknowledgement of debt for the sum of R25 000.00 on 15 September 2003 and have since paid R900.00 in respect of the loan.

[4] Ms. Gopal, for the second respondent, submitted that the confirmatory affidavit of Kubandran Padayachee is not in fact a confirmatory affidavit because there is no case number and the names of the parties do not appear thereon. However, this affidavit does refer to the replying affidavit of the applicant and it was annexed to the applicant’s replying affidavit. The copy of the confirmatory affidavit which was annexed was not attested to and by consent it was substituted with a duly attested copy on the date of the hearing of this matter. In my view, there is no merit in Ms. Gopal’s submission that Kubandran Padayachee’s affidavit does not confirm the applicant’s replying affidavit.

[5] Ms Gopal also submitted that there is a real dispute of fact in this matter as to whether or not the second respondent knew what she was signing when she signed the agreement of purchase and sale. I do not agree. In my view there is no genuine dispute of fact. The second respondent contends that she was misled into signing the agreement of purchase and sale. She does not say how she was misled. She says that she thought that she was signing an acknowledgment of debt. The second respondent is not saying that she did not sign the agreement of purchase and sale. She says that she signed, but she was misled into signing and she did not know that she was in fact signing an agreement of purchase and sale. On the other hand the applicant contends that the second respondent knew what she was signing and this is confirmed by Kubandran Padayachee, an attorney who was present when the agreement of purchase and sale was signed by the seller and purchaser.

[6] In Plascon-Evans Paints v Van Riebeeck Paints 1984(3) SA 623 (AD) at 634 – 635, the court formulated the rule to be applied in motion proceedings where dispute of fact has arisen on affidavits, namely, that a final order may be granted if those facts averred in the applicant’s affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. The court went on to say that the power of the court is not only confined to such a situation and that in certain instances the denial by the respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact. The respondent has a right to apply for the deponents concerned to be called for cross-examination but where the denial is so far-fetched or clearly untenable; the court is justified in rejecting such denial merely on the papers. On the papers in the present case the averment by the second respondent that she was misled into signing the agreement of purchase and sale and that she did not know what she was signing, is in my view, clearly untenable. The circumstances under which she signed are not explained. Her denial is also too far-fetched in my view. I am of the opinion that there is no real dispute of fact in this matter which cannot be decided on the papers.

[8] The second respondent admits that she signed the agreement of purchase and sale by affixing her thumb print on it. Her averments that she was misled into signing and that she believed that she was signing an acknowledgement of debt are rejected as too far-fetched and untenable.

[9] There remains the issue of costs. There is no reason why the successful party should not get all the reserved costs in this matter.

[10] I make the following order:

1. An order granted in terms of paragraphs 1 and 2 of the notice of motion.

2. The first and second respondents are ordered to pay the costs of the application including all the reserved costs jointly and severally, the one paying the other to be absolved.

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SS LUTHULI AJ

Counsel for the Applicant: Adv. MR Naidoo

Instructed by: Hoosen Kader and Associates

Attorney for the Second Respondent: Ms T Gopal

Durban Justice Centre

Judgment handed down on: ________________________

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