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IN THE KWAZULU-NATAL HIGH COURT, DURBAN

REPUBLIC OF SOUTH AFRICA

CASE NO. 11070/2008

In the matter between:

IVAN THEOPHILUS PETERS FIRST APPLICANT

MOGAMBAL PETERS SECOND APPLICANT

and

JOHN DOUGLAS MICHAU N.O. FIRST RESPONDENT

MELISSA CHERLY PETERS SECOND RESPONDENT

OLD MUTUAL BANK THIRD RESPONDENT

PRAVEN THEOPHILUS PETERS FOURTH RESPONDENT

______________________________________________________________

J U D G M E N T

______________________________________________________________

NDLOVU J

[1] The applicants sought an order interdicting and restraining the first respondent (who was appointed liquidator to the joint estate of second and fourth respondents after their divorce) from realising the alleged joint estate, in particular, from selling the immovable property more fully described as portion 1275 (of 318) of Erf 102 Chatsworth, Registration Division FT, in the City of Durban, Province of KwaZulu Natal, in extent 194 square metres, physically situate at 82 Powerline Street, Westcliffe, Chatsworth (“the property”) on the ground that the applicants were the lawful owners of the property, notwithstanding the registration of transfer of the property in the name of the fourth respondent.

[2] Both the applicants’ founding and replying affidavits were deposed to by the first applicant and confirmed in a separate affidavit by the second applicant which was filed evenly with each of the said affidavits and which constituted the case for both applicants. Although not expressly alleged, it would appear that, essentially, the first applicant deposed to the affidavits aforesaid on behalf of both himself and the second applicant.

[3] The applicants (married to each other in community of property) were the parents of the fourth respondent (their eldest son) and they had occupied the property since about 1980. The property was registered in the first applicant’s name under the Deed of Transfer No. T10719/1981 dated 23 April 1981 (“the first title deed”). The applicants continued to stay on the property together with the fourth respondent and other family members including their younger son, Neville Peters. In or about 1993 the applicants concluded what appeared to be a valid purchase and sale agreement whereby they sold the property to the second applicant’s brother, Krish Govender, for a certain sum of money which the second respondent established by the production of the copy of the title deed concerned to be the sum of R50 000. Krish Govender registered a mortgage bond on this amount with a financial lending institution, the particulars of which were not disclosed in the papers. A copy of the Deed of Transfer No. T17497/93 issued on 30 June 1993 (“the second title deed”) was included in the papers in terms of which the property was transferred from the name of the first applicant to the names of Krish Govender and his wife Selvanayagee Govender (“the Govenders”) by virtue of their marriage in community of property.

[4] On 4 December 2000 the Govenders concluded another deed of sale with the fourth respondent in terms of which the Govenders sold the property to the fourth respondent for the sum of R70 000,00. A mortgage bond was passed by Old Mutual Bank (the third respondent) in that amount in favour of the fourth respondent. A copy of the deed of sale evidencing the particulars of the purchase and sale transaction was only made available to the Court from the bar by consent.

[5] Notwithstanding the deed of sale reflecting the purchase price as R70 000,00 the first applicant stated in the founding affidavit that the price was in fact R110 000,00. On 7 May 2001 the property was transferred at the deeds office from the name of the Govenders to the name of the fourth respondent in terms of the Deed of Transfer No. T20296/2001 (“the third title deed”). It did appear that on 27 October 2001 an endorsement was made on the third title deed to the effect that a second bond in the sum of R40 000,00 was registered on the property, thus making a total of R110 000,00 of the mortgaged loan amount and which then tended to explain the first applicant’s assertion in this regard.

[6] When the deed of sale over the property was concluded between the Govenders and the fourth respondent on 4 December 2000 the fourth respondent was not yet married. On 6 January 2001 the second and fourth respondents got married to each other in community of property. However, they did not immediately move into the property. In the meantime, as indicated already, the property got registered in the name of the fourth respondent on 7 May 2001. The second and fourth respondents commenced staying on the property only on or about April 2002.

[7] The marriage between the second and fourth respondents did not last long and they were finally divorced on 22 August 2006. By virtue of their marriage in community of property the second respondent then sought to have the joint estate (which she claimed included the property) realised in order for her to receive her one-half share of the proceeds from the sale of the property by the first respondent.

[8] In their founding affidavit the applicants alleged that notwithstanding the purchase and sale agreement with Krish Govender and, indeed, the registration of the property from the first applicant’s name to that of the Govenders, it was never, in the first place, the intention of the parties to transfer ownership of the property. According to the first applicant, the parties’ intention was that Krish Govender would hold the property only as a nominee (that is, in name only) and not beyond that.

[9] The applicants sought to explain how it came about that the first applicant concluded the sale agreement with Krish Govender. This was the brief outline of their explanation: They had acquired a loan of R10 000 from Krish Govender which they found difficult to repay. In order to avoid litigation against them by Krish Govender, they and Krish Govender had then agreed that they would cause the property to be transferred to Krish Govender’s name in what would appear as a sale of the property for the sum of R25 000 and for which Krish Govender would then register a mortgage bond over the property for the said amount with a financial institution. The applicants would however service the loan repayments to the bondholder. In other words, Krish Govender would not make any actual payments to the applicants in terms of the agreement. When the money was available to Krish Govender from the financier he would retain the sum of R10 000 due to him by the applicants as a full and final settlement of the loan owed to him by the applicants.

[9] According to the applicants they had also registered a mortgage bond over the property in respect of which they owed the sum of R13 000. They averred that, in terms of the arrangement with Krish Govender the balance of R15 000 (that is R25 000 less R10 000) would then be utilized to settle the applicants’ bond debt of R13 000 and that this was done accordingly. However, the second title deed reflected that Krish Govender purchased the property from the applicants for R50 000 and took a mortgage bond of R20 000 and not R25 000 as alleged by the applicants. Further, the first title deed reflected that the applicants purchased the property for R10 000 and mortgaged it for R7 000 and which was not what the applicants claimed to the case. Ironically, both the first and second title deeds were produced by the second respondent and attached to her answering affidavit.

[10] The applicants further alleged that in 2000 Krish Govender advised them that he then intended to purchase his own property and suggested that the property be then taken “out of his name”. Initially the idea was to get the applicants’ younger son, Neville, to pose as a purchaser of the property from the Govenders. However, Neville lacked creditworthiness with financial institutions for the purpose of obtaining a mortgage bond. It was as a result of this situation that an arrangement was eventually agreed upon between the applicants, the Govenders and the fourth respondent that the property would then be transferred from the Govenders into the name of the fourth respondent. This arrangement would alleviate the applicants’ financial problems which they were encountering consequent to the “extensive renovations and structural improvements on the property” which the applicants had commenced with and for which they required funds to complete. The sale of the property to the fourth respondent would enable the fourth respondent to approach a financial institution for a mortgage bond in order to raise the finance required by the applicants. The fourth respondent obtained the mortgage loan from the third respondent. According to the arrangement, the property would be transferred back to the applicants once the loan taken by the fourth respondent was repaid to the third respondent. Hence, the purchase and sale agreement over the property between Krish Govender and the fourth respondent was concluded. However the applicants emphasised:

“Notwithstanding the aforesaid purchase and sale agreement it was expressly agreed between the Fourth Respondent, the Second Applicant and I (i.e. the First Applicant) that the procedure embarked upon to secure the finance which I required was not intended to confer ownership upon the Fourth Respondent.” (Paragraph 22 of the applicants’ founding affidavit.)

[11] In any event, the applicants pointed out that the fourth respondent had assured them that he had resolved the property issue with the second respondent in relation to their divorce in that he had offered to the second respondent, and the second respondent had accepted, the offer of payment of the sum of R60 000 plus her legal costs. Towards this end the fourth respondent had rendered a payment to the second respondent in the sum of R30 000 which the second respondent had accepted. There were some printed emails attached to the founding affidavit seeking to serve as proof that, among other things, the second respondent indeed confirmed her acceptance of the fourth respondent’s offer of R60 000. The applicants further alleged that all the time the fourth respondent was not disclosing to the applicants the true state of affairs, including the offer of R60 000 which the fourth respondent had made to the second respondent, until the evening of 1 September 2008 when the applicants were informed by the fourth respondent that he (the fourth respondent) had been consulting with his attorneys during that afternoon concerning the matter of the property being due for sale by the first respondent at a public auction scheduled for 4 September 2008. Hence, this application was instituted by the applicants on an urgent basis on 3 September 2008 to stop the sale, among other things.

[12] According to the applicants, the fourth respondent had not even revealed to them that he had in the meantime accessed the bond and increased the mortgage loan by R60 000 and that he had already paid a total sum of R30 000 to the second respondent in two instalments, which money the second respondent had accepted.

[13] The applicants claimed that, in the circumstances, the property did not fall into the joint estate of the second and fourth respondents. For this reason, the applicants intended to institute an action to declare that they were the lawful owners of the property. The present application was therefore aimed at ensuring that, if granted, the status quo would be maintained pending the institution of the action aforesaid.

[14] In his affidavit Krish Govender confirmed the allegations made in the applicants’ founding affidavit to the extent that they related to him. By the way, he also confirmed the applicants’ replying affidavit to the similar extent. Further confirmatory affidavits to the applicants’ affidavits were deposed to by the applicants’ son, Neville, and one Sathasivan Govender, the landlord of the second and fourth respondents, prior to their occupation of the property in April 2002.

[15] Only the second respondent opposed the application. In her answering affidavit she submitted, in limine (over and above her challenge of the application on the merits as set out hereinafter) that the applicants’ papers did not make out a case in that the applicants failed to establish –

(i) that they had a prima facie right to the order they sought; and

(ii) that they had no other satisfactory alternative remedy, in that they could have a personal claim for damages (against the fourth respondent) whose quantum was readily ascertainable.

[16] The second respondent alleged that “during or about May 2001 the fourth respondent purchased a home for us (a physical description of the property was then given) for the sum of R70 000…” and that by virtue of their marriage in community of property she acquired an undivided one-half share of the property which she thenceforth perpetually described as their matrimonial home (see paragraph 6 of the answering affidavit).

[17] She further pointed out that it was significant that shortly after their divorce on 22 August 2006 the fourth respondent did not raise any query about the fact of the property being an asset of the parties’ joint estate. For example, on 12 October 2006 the second respondent’s attorney sent a letter to the fourth respondent seeking to engage the fourth respondent in negotiations with a view to attempting to reach agreement on the division of the joint estate. In the letter mention was made that the property was part of the joint estate. Nevertheless, the fourth respondent did not raise any challenge about the property not being included in the joint estate. Instead, the fourth respondent chose not to respond to the letter.

[18] There was also an application for the appointment of a liquidator (the first respondent) which was instituted by the second respondent on 14 March 2007. The notice of motion in that application clearly referred to the issue of realisation of the property which was fully described therein. The papers were personally served on the fourth respondent on 11 April 2007. Again no challenge was raised by the second respondent. Instead, he elected not to oppose the application.

[19] According to the second respondent, she proposed to the fourth respondent that he pay her R60 000 plus legal fees owing to her attorneys by her at the time, but the fourth respondent did not accept her proposal. She had advised the fourth respondent that she would not proceed with the sale of the “matrimonial” property if he paid her in terms of her proposal. However, the fourth respondent did not accept her proposal. On 6 November 2007 her attorneys addressed a letter to the fourth respondent confirming to him that the second respondent would not proceed with the sale of the property provided that the payment of R60 000 plus R13 264,79 legal costs was made within 10 days from the date of the letter (that is, 6 November 2007). The fourth respondent still did not co-operate. Hence, the second respondent’s attorneys instructed the first respondent to proceed with the sale of the property. However, the second respondent acknowledged her receipt of the payment of R30 000 from the fourth respondent.

[20] The second respondent vehemently denied the applicants’ claim of right with regard to their continued retention of ownership of the property despite the deeds of sale and transfer aforesaid. She further submitted that if the applicants’ allegation was correct, which the second respondent of course denied, then it constituted:

“misleading and dishonest conduct, and probably a fraud or attempted fraud on the applicants and fourth respondent’s creditors (and she) maintain(ed) that the applicants and fourth respondent are estopped from denying that the fourth respondent owns the property, and in the circumstances and by virtue of our marriage in community of property it fell into our joint estate and falls to be dealt with accordingly” (paragraph 35 of the answering affidavit).

[21] It was further denied by the second respondent that the applicants did not have any other alternative remedy. According to the second respondent if the applicants’ allegations were correct, which was denied by the second respondent, then applicants would have a readily quantifiable claim for damages against the fourth respondent.

[22] In their replying affidavit the applicants reiterated that the fourth respondent did not take the loan from the third respondent in order to pay Krish Govender for the property, but it was for payment for the renovations on the property. They further pointed out that the second and fourth respondents started living on the property only in April 2002 and only after they had sought and obtained permission to do so from the applicants. Their reasons for seeking such permission were that the fourth respondent who was working shifts considered it more convenient to stay on the property and the second respondent had ailing health at the time. Of course, in a further affidavit the second respondent denied these allegations.

[23] The applicants reiterated that the property always remained their matrimonial home. Whilst acknowledging that the bond instalments were deducted directly from the fourth respondent’s bank account by debit order, the applicants averred that a portion of this deduction was refunded to the fourth respondent by the applicants’ younger son, Neville Peters. These payments by the fourth respondent and Neville represented their respective pro rata rental contribution for staying on the property. This allegation was also denied by the second respondent (in her further affidavit) insofar as it related to the fourth respondent.

[24] Concerning the contradictions in the purchase prices in respect of the initial acquisition of the property by the applicants and the subsequent controversial acquisition by the Govenders in relation to the averments by the applicants, on the one hand, and the second respondent, on the other, the applicants conceded that the prices as alleged by the second respondent and supported by the respective title deeds, copies of which were produced by the second respondent and attached to her answering affidavit, represented the correct purchase prices and should have been reflected as such. The applicants however insisted that this discrepancy did not detract from the fact that the loan which Krish Govender obtained from the financier was used partly to settle the existing bond and partly to settle the applicants’ indebtedness to Krish Govender. The applicants attributed their incorrect price references partly to the fact that they had purchased the property some 28 years ago. Therefore, the first applicant had mentioned R13 000 as the purchase price because that was according to his best recollection.

[25] The applicants further denied the second respondent’s claim that she paid for the household groceries whilst the fourth respondent took the responsibility of the bond repayments and that this had been the arrangement between herself and the fourth respondent. According to the applicants it was due to the fourth respondent’s stable income that it was agreed with the fourth respondent that the bond repayments would be deducted from his bank account. However, as stated above, the portion of the fourth respondent’s deduction was reimbursed by Neville Peters as his own contribution to the occupation of the property. The groceries were paid for by the applicants’ daughter and not by the second respondent as she alleged. The first applicant paid for the utilities consumption and even the bill in respect thereof was still in his name. The applicants sought to furnish proof in this regard by attaching to their replying affidavit a copy of the utilities bill dated 13 July 2008 in respect of the property and which was in the name of “IT Peter” (annexure “E” to the replying affidavit).

[26] It was important to bear in mind that the applicants sought not a final order but interim relief which would operate pending the determination of the action which the applicants contemplated to institute, seeking to declare them the lawful owners of the property. Indeed, where interim relief was sought an applicant bore the onus of establishing that:

(1) the applicant had a prima facie right to the relief sought;

(2) irreparable harm would be suffered if the relief was not granted;

(3) the balance of convenience favoured the applicant; and

(4) no satisfactory alternative remedy was available.

[27] As for the question of a prima facie right, the Court in Webster v Mitchell 1948 (1) SA 1186 (W) held (per Clayden J):

“From the Appellate Division cases to which I have referred I consider that the law which I must apply is that the right to be set up by an applicant for a temporary interdict need not be shown by a balance of probabilities. If it is “prima facie established though open to some doubt” that is enough……

If the phrase used were “prima facie case” what the Court would have to consider would be whether the applicant had furnished proof which, if uncontradicted and believed at the trial, would establish his right. In the grant of a temporary interdict, apart from prejudice involved, the first question for the Court in my view is whether, if interim protection is given, the applicant could ever obtain the rights he seeks to protect. Prima facie that has to be shown. The use of the phrase “prima facie established though open to some doubt” indicates I think that more is required than merely to look at the allegations of the applicant, but something short of a weighing up of the probabilities of conflicting versions is required. The proper manner of approach I consider is to take the facts as set out by the applicant, together with any facts set out by the respondent which the applicant cannot dispute, and to consider whether, having regard to the inherent probabilities, the applicant could on those facts obtain final relief at a trial. The facts set up on contradiction by the respondent should then be considered. If serious doubt is thrown on the case of the applicant he could not succeed in obtaining temporary relief, for his right, prima facie established, may only be open to “some doubt”. But if there is mere contradiction, or unconvincing explanation, the matter should be left to trial and the right be protected in the meanwhile, subject of course to the respective prejudice in the grant or refusal of interim relief. Although the grant of a temporary interdict interferes with a right which is apparently possessed by the respondent, the position of the respondent is protected because, although the applicant sets up a case which prima facie establishes that the respondent has not the right apparently exercised by him, the test whether or not temporary relief is to be granted is the harm which will be done. And in a proper case it might well be that no relief would be granted to the applicant except on conditions which would compensate the respondent for interference with his right, should the applicant fail to show at the trial that he was entitled to interfere.” (at 1189-90)

[28] In Msunduzi Municipality v Natal Joint Municipal Pension/Provident Fund and Others 2007 (1) SA 142 (N) the Court stated (per Pillay J):

“The prima facie right which needs first to be identified by the applicant is one which is, of course, in less stringent terms than one where an applicant claims a final interdict. This means that the applicant bears the onus to place sufficient evidence before the Court to show the existence of a right, even though, by reason of denials by the respondent, some doubt is thrown on the existence of that right. If, on the probabilities, there is great doubt, then the applicant will not be entitled to an interdict, even temporarily. The applicant bears the onus to show that that right has been infringed by the respondents.” (at para [13] p 152)

(See also Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1995 (2) SA 813 (W) at 824; Aranda Textile Mills (Pty) Ltd v Hurn and Another [2000] 2 All SA 530 (E) at 535; Ladychin investments (Pty) Ltd v South African National Roads Agency Ltd and Others 2001 (3) SA 344 (N) at 353.)

[29] It did appear, on the papers, that the transfer of the property from the applicants to the Govenders and thereafter from the Govenders to the fourth respondent was prima facie lawfully and validly prosecuted and concluded as at the time these processes were performed. Indeed, the applicants seemed to be aware of the fact that there was no reasonable chance of success for final relief based on the papers without resorting to oral evidence by way of a trial which they contemplated in the order prayed in the notice of motion.

[30] Hence, Mr Dheoduth, for the applicants, acknowledged that several disputes of fact had been raised in this matter. He submitted, however, that this was not the forum to deal with those factual disputes. This was an interlocutory application only seeking to prevent the first respondent from selling the property pending the determination of an action to be instituted by the applicants declaring that the applicants were the lawful owners of the property. He further submitted that mere registration of property with the Deeds Registry was not necessarily a reflection of the true state of affairs in relation to property ownership. He argued that the parties’ intention in this case was that the Govenders would hold the property only as nominees. Counsel referred to the decision in Dadabhay v Dadabhay 1981 (3) SA 1039 (AD) in this regard.

[31] Counsel contended that it was never intended, in the first place, that ownership of the property would pass to the Govenders by virtue of the first purchase and sale transaction over the property. The second respondent was also aware of the arrangement that it was never intended that ownership of the property would be transferred to the fourth respondent from the Govenders who themselves, as stated, held the property only as nominees and not as owners.

[32] Mr Quinlan, for the second respondent, pointed out that there was no mention in any of the title deeds of the preservation of ownership of the property in favour of the applicants nor was there any mention that the Govenders or the fourth respondent was to hold the property as nominee. He submitted that the transactions concerned were valid deeds of sale whereby the property was lawfully transferred on registration at the Deeds Office. Concerning the fourth respondent the property was registered in his name at the Deeds Registry on 7 May 2001 which was after his marriage to the second respondent in community of property on 6 January 2001. It followed, accordingly, that the property formed part of their joint estate, of which the second respondent acquired an undivided one-half share of the property, citing LAWSA, Vol 16 para 67 (2^nd Ed); LAWSA Vol 27 para 361 (1^st Re-issue) as authority.

[33] He referred to the previous occasions when the second respondent lodged an application for the appointment of the first respondent and another subsequent application seeking to compel the fourth respondent to co-operate with the first respondent (after the latter was appointed as liquidator) to realise the joint estate which would include the sale of the property. This issue was mentioned in both application papers which were served on the fourth respondent. In fact, as regards the latter-mentioned application, the papers were served on the first applicant for onward transmission to the fourth respondent. Significantly, neither the fourth respondent nor the first applicant ever raised any challenge that the fourth respondent was not the owner of the property.

[34] Mr Quinlan also referred to the wording of the third title deed, in particular, which clearly reflected that the property was actually sold and transferred to the fourth respondent. He also pointed out that it was significant that the applicants were not seeking an order setting aside the contentious transfers of the property or to correct the records at the Deeds Office in that regard.

[35] He argued that the applicants had failed to show a prima facie right by establishing that they had reasonable prospects of prevailing at the trial; in other words, of establishing that they were entitled to an order declaring them lawful owners of the property. He further submitted that even if what the applicants alleged was correct (which was denied) they only had a personal claim against the fourth respondent for payment of the balance of the net proceeds of his one-half share after the second respondent had been paid her one-half share of the net proceeds of the sale.

[36] Mr Quinlan further submitted that if what the applicants alleged was correct it would mean that the sale agreements and powers of attorney for the transfer of the property concluded and completed were fictitious and in fraudem legis. In those circumstances the Court should not come to the applicants’ assistance and appear to sanction such conduct.

[37] As I seem to understand it, the second respondent’s submission sought to implore the Court to deal with and dispose of the matter on the basis of simply applying the law to the main objective facts, namely, that the property was registered at the Deeds Office on 7 May 2001 in the name of the fourth respondent who was at the time married in community of property to the second respondent who, by virtue thereof, was by law entitled to an undivided half-share of the property. In my view, however, it would be somewhat presumptuous to approach the matter that way. There was no doubt that the matter was full of serious and material factual disputes. Indeed, some of the issues in dispute could, if proven correct, well possibly amount to some legally reprehensible conduct on the part of certain person or persons, punishable under the law. However, in my view, this was not the appropriate forum to consider those issues.

[38] It was common cause that in none of the title deeds or deeds of sale presented to the Court reflected the purchasers of the property as nominees. Instead, as Mr Quinlan correctly quoted from one of the title deeds, the wording therein indicated the contrary, namely, that the transactions concerned were intended to be in contemplation of the transfer of the property in each case. In explaining this position, the applicants stated that it was felt not necessary to go to the extent of giving such details in the papers as nobody anticipated at that time that there would be a dispute which would culminate in litigation. To my mind, this was not a satisfactory explanation. I was also not quite satisfied with the reason given by the applicants as to why the issue of ownership of the property was not raised by the applicants despite their knowledge, the first applicant in particular, about the appointment of the first respondent whose duty it was, among other things, to sell the property.

[39] However, I am bound to view the entire situation in its proper perspective. With regard to the second title deed, that is, in respect of the “transfer” of the property to Krish Govender, I have already pointed out that Krish Govender confirmed both the applicants’ founding and replying affidavits in every respect to the extent that they related to him. In particular, in other words, Krish Govender supported and confirmed the applicants’ version that it was never the intention between him and the applicants that the transfer of the property would actually pass to him (Krish Govender). Indeed, as stated above, the Govenders, despite having had the property registered in their name with effect from 30 June 1993, they never physically occupied the property until the property was registered in the fourth respondent’s name on 21 May 2001 – some eight years later. If, therefore, notwithstanding the said property registration and the second title deed, it was never the common intention between the applicants and Krish Govender to pass ownership of the property to the Govenders (which both parties averred and confirmed that was the position), could it be legally concluded that the purchase and sale agreement concluded by the parties on 4 December 2000 was a valid and binding contract? Indeed, this Court did not seem to be the appropriate forum to pronounce on the issue. However, for the purpose of this application, I am inclined to hold that there is, prima facie, some reasonable doubt that such conclusion could be reached.

[40] With regard to the applicants not raising the issue of their ownership of the property after their apparent knowledge about the appointment of the first respondent to realise the joint assets of the second and fourth respondents, which would necessitate the sale of the property, it should be borne in mind that this particular matter was being undertaken and dealt with by the fourth respondent who, according to the applicants, was initially reluctant to tell the applicants about the true state of affairs. Even when the applicants became aware of the true situation the fourth respondent kept on underplaying it and, instead, he reassured them that everything would be sorted out in due course. This, the fourth respondent also confirmed in his own affidavit, to have done.

[41] According to Mr Quinlan the Court should not come to the assistance of the applicants who might as well have committed acts of fraud. However, even if anyone might have committed fraud or other wrongful deeds consequent upon the conclusion of any of the purported purchase and sale agreements referred to in this matter, I do not believe that this Court was the appropriate forum to consider and make any pronouncement on such issues. According to the applicants everybody concerned in this matter, including the second respondent, was aware of what was going on. Therefore, the matter would have to be properly ventilated through a trial procedure to determine the truth of what happened.

[42] Of course, the second respondent denied the allegations made by the applicants that the applicants would remain the owners of the property. The second respondent relied on the fact that there was nothing which the applicants could produce to show that their ownership right over the property was preserved to them. It may be so but, to my mind, considering the case in its entirety, including the conduct of the parties ex post facto the sale agreements, I am inclined to come to the conclusion that there was more to this entire affair than met the eye.

[43] Both applicants were unemployed (apparently elderly) couple who earned their living from the State disability grant programme. They acquired the property in about 1980. They lived on the property continuously without interruption until the institution of this litigation. The conclusion of the first purchase and sale agreement with Krish Govender did not change the situation because, notwithstanding the agreement and the second title deed in favour of the Govenders, the applicants continued living on the property. The Govenders never moved into the property nor did it appear that there was ever such an intention contemplated by them that they would one day move in.

[44] In paragraph 15 of the founding affidavit the first applicant alleged, among other things, that Krish Govender had advised the first applicant that he (Krish Govender) “intended to purchase his own home”. That allegedly happened in the year 2000. The second respondent, in her answering affidavit, denied this allegation. The allegation clearly implied, in my view, that at the time Krish Govender did not have his own house. That was the situation which the second respondent would have been aware of. If there was any real intention of transferring the property from the applicants to the Govenders, it was difficult to understand why the Govenders, despite having had the property transferred to their names as early as 30 June 1993, they as at 2000 had still not yet taken occupation thereof. Even more so, as alluded to earlier, that it seemed that they (the Govenders) apparently did not have their own house.

[45] As the property was registered in the fourth respondent’s name on 21 May 2001 after the second and fourth respondents were already married it was also unclear why they moved into the property only in April 2002 – almost a year later. This conduct was not consistent to the second respondent’s allegation that “[d]uring or about May 2001 the fourth respondent purchased a home for us …”. The second respondent confirmed in her further affidavit that prior to April 2002 she and the fourth respondent were indeed occupying rented accommodation (paragraph 8 of the second respondent’s further affidavit). This concession confirmed the applicants’ averment that prior to April 2002 the second and fourth respondents were renting accommodation under Sathasivan Govender.

[46] In his short supplementary heads of argument, Mr Quinlan referred to the decision of Dadabhay v Dadabhay (supra) referred to by Mr Dheoduth in his argument, on the basis that Mr Dheoduth had not included this decision in his heads of argument but only referred to it during argument in Court. Hence Mr Quinlan had not had the opportunity to look into the case himself and respond accordingly. According to Mr Quinlan the Dadabhay case was distinguished from the facts of the present case. However, I do not think that it is necessary for me to deal with this particular issue, given the fact that, in my view, the decision in question has no bearing in this case.

[47] It was evident that the applicants’ case did have its own discrepancies and adverse elements, some of which I alluded to above. However, the relief sought by the applicants was not one of a final nature but only interim pending the determination of an action to be instituted by the applicants seeking an order declaring that they were the lawful owners of the property. In other words, it was only temporary relief, the purpose of which was only to maintain the status quo pending the determination of the action aforesaid at the trial. In my view, the applicants have indeed established a prima facie right although open to some doubt.

[48] Mr Quinlan further argued that the applicant had failed to discharge the onus of establishing that they had no alternative relief other than this application. He argued that they indeed had the alternative relief. He submitted that if what the applicants were alleging was correct, then they had a personal claim for damages against the fourth respondent following upon the realisation of the property and payment to the second respondent of her one-half share of the net proceeds of the sale. However, in my view, this submission misses the important point. The applicants’ contemplated action would seek to challenge the very alleged entitlement by the second respondent of an undivided one-half share in the property on the ground that, according to the applicants, the property did not form part of the joint estate of the second and fourth respondents. A declarator would be sought in the action declaring that the applicants were the lawful owners of the property.

[49] It would appear, therefore, that the remedy suggested by Mr Quinlan could entitle the applicants to claim only half of what they would otherwise be able to claim through the action they contemplate in the present application. The suggestion of such a personal claim was, to my mind, only self-serving to the second respondent and in no way whatsoever constituted a satisfactory alternative remedy for the applicants.

[50] In any event, it was clear that the applicants were not interested in anything (such as receiving any proceeds from the sale of the property) but only to be declared the lawful owners of the property and to be left peacefully alone in their home. As I understand the matter, this was precisely what the applicants intended to achieve from the trial.

[51] Given not just the likelihood but the certainty of the property having to be sold by the first respondent in realisation of the property (on the basis that it formed the joint estate of the second and fourth respondents) the present application was indeed the only legal and effective way whereby, if granted, would ensure that the status quo was maintained thus enabling the applicants to institute and prosecute the contemplated action aforesaid. Otherwise, if the sale of the property by the first respondent was to be allowed to proceed, the applicants would thereby have effectively been deprived of their legal and constitutional right to approach the Courts for redress in a matter where they felt they had been wrongfully deprived of ownership of their property. The institution of any action after the sale of the property would only be an academic and, indeed, a futile exercise. It follows, in that event, that the applicants would have suffered irreparable harm. I am also satisfied that the balance of convenience favours the applicants.

[52] The second respondent further submitted that the applicants and the fourth respondent should be estopped from denying that the fourth respondent was the owner of the property. (Paragraph 35 of the answering affidavit.) The plea of estopped was, in my opinion, also a matter which should appropriately be raised at the trial.

[53] In the light of the aforegoing the application should succeed. In addition, however, the applicants should be directed to institute the contemplated action within a specified period. I have also noted that on 3 September 2008 the applicants were ordered to pay the wasted costs of advertising the public auction scheduled for 4 September 2008 and the auctioneers wasted costs. Therefore, the order prayed in paragraph 2(b) of the notice of motion should fall away. The costs of the application should be reserved for determination at the trial.

[54] In the result, the following order is made:

(1) Pending the determination of an action to be instituted by the applicants for an order declaring that they are the lawful owners of the property described as Portion 1275 (of 318) of Erf 102 Chatsworth, Registration Division FT, in the City of Durban, Province of KwaZulu Natal, in extent 194 square metres, physically situate at 82 Powerline Street, Westcliffe, Chatsworth (“the property”) and certain other ancillary relief, the first respondent be and is hereby interdicted and restrained from proceeding to sell the property by way of public auction or private treaty.

(2) The applicants be and are hereby directed to institute the said action within thirty (30) days from the date of this order, failing compliance of which the order in (1) above shall lapse.

(3) The costs of this application shall be reserved for determination by the trial court.

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Counsel for the applicants : NN Dheoduth

Instructed by : Zane Haneef

Counsel for the respondents: PD Quinlan

Instructed by : Cox Yeats

Judgment handed down on : 11 August 2009

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