Fulsome Properties (Pty) Ltd v Selepe and Others (14001/2021) [2021] ZAGPPHC 196 (6 April 2021)

Fulsome Properties (Pty) Ltd v Selepe and Others (14001/2021) [2021] ZAGPPHC 196 (6 April 2021)

The court found that the applicant, as the first purchaser, acquired rights to possession and occupation of the property prior to the second respondent's instalment sale agreement. The maxim qui prior est tempore potior est iure applies, giving preference to the applicant's rights. The first respondent could not transfer possession to the second respondent after having already transferred it to the applicant, in line with the nemo plus iuris rule. The second respondent's limited real right by recordal does not entitle it to possession where the applicant is in occupation. The applicant demonstrated a reasonable apprehension of irreparable harm due to interference with its tenants and loss...

Citation
[2021] ZAGPPHC 196
Parties
Applicant: Fulsome Properties (Pty) Ltd; Respondent: Fiona Gontse Selepe; Respondent: Lentse Investments (Pty) Ltd; Respondent: Registrar of Deeds, Pretoria
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
6 April 2021
Case Number
14001/2021
Procedural Posture
Urgent Application / Interim Interdict (part A) With Postponement of Declarator and Specific Performance (parts B and C)
Outcome
Urgent interdictory relief granted in favour of the applicant; respondents interdicted from interfering with applicant's possession and enjoyment of the property pending determination of the main application. Costs reserved.
Judges
D Dosio
Legal Topics
Double Sale, Interdict, Specific Performance, Alienation of Land Act, Nemo Plus Iuris, Qui Prior Est Tempore Potior Est Iure
Land and Property Civil Procedure Double Sale Interdict Specific Performance Alienation of Land Act Nemo Plus Iuris Qui Prior Est Tempore Potior Est Iure

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Parties

Fulsome Properties (Pty) Ltd

Applicant

Fiona Gontse Selepe

Respondent

Lentse Investments (Pty) Ltd

Respondent

Registrar of Deeds, Pretoria

Respondent

Procedural Posture

Urgent Application / Interim Interdict (part A) With Postponement of Declarator and Specific Performance (parts B and C)

Legal Issues

  1. 1 Whether the applicant is entitled to urgent interdictory relief restraining the respondents from interfering with its possession and enjoyment of the property pending determination of the main application.
  2. 2 Whether the applicant's rights as first purchaser trump those of the second respondent under the principle qui prior est tempore potior est iure.
  3. 3 Whether the second respondent's limited real right by recordal of the instalment sale agreement affects the applicant's entitlement to possession.

Ratio Decidendi

The court found that the applicant, as the first purchaser, acquired rights to possession and occupation of the property prior to the second respondent's instalment sale agreement. The maxim qui prior est tempore potior est iure applies, giving preference to the applicant's rights. The first respondent could not transfer possession to the second respondent after having already transferred it to the applicant, in line with the nemo plus iuris rule. The second respondent's limited real right by recordal does not entitle it to possession where the applicant is in occupation. The applicant demonstrated a reasonable apprehension of irreparable harm due to interference with its tenants and loss...

Court Disposition

Urgent interdictory relief granted in favour of the applicant; respondents interdicted from interfering with applicant's possession and enjoyment of the property pending determination of the main application. Costs reserved.

Orders

  • The first and second respondents are interdicted and restrained from communicating and interfering in any manner whatsoever with the applicant's tenants residing at the properties in question.
  • The first respondent is interdicted from transferring the property to the second respondent or any other person pending the outcome of Parts B and C.