Amedee v Fidele and Others (20/9529) [2021] ZAGPJHC 837 (20 December 2021)

Amedee v Fidele and Others (20/9529) [2021] ZAGPJHC 837 (20 December 2021)

The court found that the applicant's conduct in filing affidavits out of sequence and launching a counter-application within his own main application, without withdrawing the main application or seeking leave, was impermissible and contrary to established rules of motion proceedings. The applicant failed to make out a case in his founding affidavit and attempted to supplement his case through irregular procedures, resulting in chaos and prejudice to the respondent. On the merits, the court held that the First Respondent was a bona fide purchaser of the property, having waited the prescribed period after the dismissal of the applicant's leave to appeal and lawfully acquired and registered...

Citation
[2021] ZAGPJHC 837
Parties
Applicant: Amedee Omer Rene Arcens; Respondent: Fidele Ntsiss and Others; Respondent: The Registrar of Deeds
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
20 December 2021
Case Number
20/9529
Procedural Posture
Civil Application / Final Judgment
Outcome
The applicant's application and counter-application are dismissed. The First Respondent's counter-application is granted. Costs orders are made against the applicant and Mrs Mageza Attorneys.
Judges
Machaba
Legal Topics
Rei Vindicatio, Bona Fide Purchaser, Sale in Execution, Abstract Theory of Transfer, Motion Proceedings Affidavit Sequence, Costs Order
Land and Property Civil Procedure Rei Vindicatio Bona Fide Purchaser Sale in Execution Abstract Theory of Transfer Motion Proceedings Affidavit Sequence Costs Order

Case Brief

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Parties

Amedee Omer Rene Arcens

Applicant

Fidele Ntsiss and Others

Respondent

The Registrar of Deeds

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the applicant was entitled to file affidavits out of sequence without leave of the court.
  2. 2 Whether the applicant could abandon the main application and commence a counter-application without withdrawing the main application.
  3. 3 Whether the First Respondent was a bona fide purchaser of the property at auction.

Ratio Decidendi

The court found that the applicant's conduct in filing affidavits out of sequence and launching a counter-application within his own main application, without withdrawing the main application or seeking leave, was impermissible and contrary to established rules of motion proceedings. The applicant failed to make out a case in his founding affidavit and attempted to supplement his case through irregular procedures, resulting in chaos and prejudice to the respondent. On the merits, the court held that the First Respondent was a bona fide purchaser of the property, having waited the prescribed period after the dismissal of the applicant's leave to appeal and lawfully acquired and registered...

Court Disposition

The applicant's application and counter-application are dismissed. The First Respondent's counter-application is granted. Costs orders are made against the applicant and Mrs Mageza Attorneys.

Orders

  • The applicant's application and so-called counter-application are dismissed.
  • The First Respondent's counter-application succeeds and is granted.