Anthony and Another v Japies and Others (17614/2016) [2017] ZAWCHC 92 (12 September 2017)

Anthony and Another v Japies and Others (17614/2016) [2017] ZAWCHC 92 (12 September 2017)

The court found that the applicants had a valid and enforceable right to claim transfer of the property, as their agreement preceded the subsequent sale and transfer to the sixth and seventh respondents. The evidence indicated that the second purchasers were aware, or at least foresaw, the existence of the prior agreement and did not oppose the application, which the court deemed an admission of knowledge. The relief sought was not rendered unenforceable by the change in registration, and the applicants were entitled to confirmation of the operative paragraphs of the rule nisi. Regarding costs, the first and second respondents were held jointly and severally liable for all costs,...

Citation
[2017] ZAWCHC 92
Parties
Applicant: Paul Joseph Anthony; Applicant: Cornelia Petronella Anthony; Respondent: Wessel Jacobus Japies; Respondent: Sonia Berlin Japies; Respondent: The Registrar of Deeds; Respondent: Velile Tinto Cape Incorporated; Respondent: Barry Nortje Attorneys; Respondent: Desmond Arthur Lodewyk; Respondent: Johanna Petronella Lodewyk
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
12 September 2017
Case Number
17614/2016
Procedural Posture
Civil Application / Return Day of Rule Nisi; Confirmation of Interim Order
Outcome
The rule nisi is confirmed in respect of paragraphs 1.1 to 1.4. Costs are awarded against the first and second respondents jointly and severally, including reserved costs. The first, second, and fourth respondents are jointly and severally liable for the costs of the postponement on 23 February 2017. The fourth...
Judges
Y S Meer
Legal Topics
Double Sale, Specific Performance, Transfer of Property, Contempt of Court, Costs Orders
Land and Property Civil Procedure Double Sale Specific Performance Transfer of Property Contempt of Court Costs Orders

Case Brief

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Parties

Paul Joseph Anthony

Applicant

Cornelia Petronella Anthony

Applicant

Wessel Jacobus Japies

Respondent

Sonia Berlin Japies

Respondent

The Registrar of Deeds

Respondent

Velile Tinto Cape Incorporated

Respondent

Barry Nortje Attorneys

Respondent

Desmond Arthur Lodewyk

Respondent

Johanna Petronella Lodewyk

Respondent

Procedural Posture

Civil Application / Return Day of Rule Nisi; Confirmation of Interim Order

Legal Issues

  1. 1 Whether the applicants are entitled to transfer of the property despite a subsequent sale and registration to other parties.
  2. 2 Who should be liable for the costs of the application, including reserved costs and costs occasioned by postponement.

Ratio Decidendi

The court found that the applicants had a valid and enforceable right to claim transfer of the property, as their agreement preceded the subsequent sale and transfer to the sixth and seventh respondents. The evidence indicated that the second purchasers were aware, or at least foresaw, the existence of the prior agreement and did not oppose the application, which the court deemed an admission of knowledge. The relief sought was not rendered unenforceable by the change in registration, and the applicants were entitled to confirmation of the operative paragraphs of the rule nisi. Regarding costs, the first and second respondents were held jointly and severally liable for all costs,...

Court Disposition

The rule nisi is confirmed in respect of paragraphs 1.1 to 1.4. Costs are awarded against the first and second respondents jointly and severally, including reserved costs. The first, second, and fourth respondents are jointly and severally liable for the costs of the postponement on 23 February 2017. The fourth...

Orders

  • Paragraphs 1.1, 1.2, 1.3 and 1.4 of the Rule Nisi issued on 28 October 2016 are confirmed.
  • The first and second respondents shall jointly and severally pay the applicants' costs, including all costs previously reserved.