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South Africa Judgment

South Gauteng High Court, Johannesburg

Hajee v Darsot (42535/2022) [2023] ZAGPJHC 840 (27 July 2023)

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Source document

01

Holding and result

The court found that, even on the applicant's interpretation of the agreement, he had not complied with his payment obligations. The tender made on 12 October did not constitute full compliance with those obligations. As a result, the applicant failed to establish a prima facie right to the relief sought, nor did he demonstrate that the balance of convenience favoured the granting of the interim interdict. The application was therefore dismissed with costs.

Court disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.

02

Material facts

Parties

Zubayr Abubaker Hajee

Applicant Counsel: Y Alli

Mohamed Hanif Darsot

Respondent Counsel: P Strathern SC

03

Procedural history

  1. Posture

    Urgent Application / Interim Interdict

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant argued that the respondent's cancellation of the agreement was not in good faith, that he had tendered payment in accordance with the agreement, and that there was a sufficient dispute of fact to warrant referral to trial. He submitted that he had established a prima facie right and would suffer greater prejudice than the respondent if the interdict was not granted, entitling him to interim relief.
Respondent
The respondent contended that the applicant had failed to comply with his payment obligations under the agreement, justifying the cancellation. The respondent maintained that the applicant's tender on 12 October did not constitute full compliance with the contractual obligations, and therefore no prima facie right to relief was established.

05

Court’s reasoning

  1. 01

    Setlogelo v Setlogelo 1914 AD 221

    An applicant for an interim interdict must establish a prima facie right to the relief sought and show that the balance of convenience favours the granting of the interdict.

  2. 02

    Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A)

    A tender to perform contractual obligations must be full and in accordance with the terms of the agreement to be valid.

06

Ratio, limits and disposition

Ratio decidendi

The court found that, even on the applicant's interpretation of the agreement, he had not complied with his payment obligations. The tender made on 12 October did not constitute full compliance with those obligations. As a result, the applicant failed to establish a prima facie right to the relief sought, nor did he demonstrate that the balance of convenience favoured the granting of the interim interdict. The application was therefore dismissed with costs.

Obiter and limits

  • The existence of a dispute of fact alone does not entitle an applicant to interim relief where the underlying contractual obligations have not been met.
  • A party seeking urgent interim relief must strictly comply with the requirements for such relief, including demonstrating a clear prima facie right.

Court disposition

Application dismissed with costs.

  • The application is dismissed with costs.

Source and reliance status

South Gauteng High Court, Johannesburg

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Judgment text

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Source document

South Gauteng High Court, Johannesburg

Judgment

[2023] ZAGPJHC 840

IN THE HIGH COURT OF

SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 42535/2022

DATE: 23-11-2022

NOT REPORTABLE

NOT OF INTEREST TO OTHER

JUDGES

REVISED

27.07.23

In the matter between

ZUBAYR

ABUBAKER HAJEE Applicant and

MOHAMED HANIF

DARSOT Respondent

J U D G M E N T

YACOOB, J:

This is an urgent application for an interim interdict interdicting the selling and transfer of a property for which the applicant has entered into an agreement of sale with the respondent.

The respondent cancelled the agreement on the basis that the applicant had not paid the amounts that, according to the respondent, the applicant had to pay.

The applicant contends that the cancellation was not done in good faith, that the applicant has tendered to make payment in accordance with the agreement and that there is sufficient dispute of fact to warrant the matter being referred to trial. On that basis, it is submitted that the applicant has established a prima facie right and that the applicant will suffer more prejudice than the respondent will if there is no interdict. The applicant therefore submits he is entitled to an interdict pending the determination of the trial.

I am satisfied that even on the interpretation of the agreement contended for by the applicant, the applicant has not complied with his obligations in terms of the agreement, nor does the tender that was made on the 12th of October in fact tender to comply with those obligations in full.

The applicant has therefore not established a prima facie right to the relief sought nor that that is where the balance of convenience lies and the application is therefore dismissed with costs.

S. YACOOB

JUDGE OF THE HIGH COURT

GAUTENG LOCAL DIVISION,

JOHANNESBURG

APPEARANCES:

APPEARANCE FOR THE APPLICANT:

Y ALLI

APPEARANCE FOR THE RESPONDENT:

P STRATHERN SC

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Setlogelo v Setlogelo 1914 AD 221

Case cited

Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A)

Case cited

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