Hajee v Darsot (42535/2022) [2023] ZAGPJHC 840 (27 July 2023)
- Citation
- [2023] ZAGPJHC 840
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- S Yacoob
- Case number
- 42535/2022
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- S Yacoob
- Case number
- 42535/2022
On this page
Professional case brief
Research organized from the available case record
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 AlliMohamed Hanif Darsot
Respondent Counsel: P Strathern SC03
Procedural history
Posture
Urgent Application / Interim Interdict
04
Questions and positions
Legal issues
- 01
Whether the applicant has established a prima facie right to an interim interdict preventing the sale and transfer of the property pending trial.
- 02
Whether the applicant complied with his payment obligations under the agreement of sale.
- 03
Whether the balance of convenience favours the granting of the interim interdict.
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
Legal principles
- 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.
- 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 reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
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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