Ismail v Kistensamy and Others (13798/07) [2008] ZAKZHC 84 (30 October 2008)

Ismail v Kistensamy and Others (13798/07) [2008] ZAKZHC 84 (30 October 2008)

The court found that all suspensive conditions of the sale agreement had been fulfilled and the purchase price paid. The second respondent's claim of being misled was unsupported and her denial was considered far-fetched and untenable. There was no genuine dispute of fact that could not be resolved on the papers. The respondents were obliged to comply with the agreement and effect transfer of the property to the applicant.

Citation
[2008] ZAKZHC 84
Parties
Applicant: Suraya Essop Ismail; Respondent: Nagiah Kistensamy; Respondent: Ponama Kistensamy; Respondent: Registrar of Deeds
Court
High Courts - Kwazulu Natal
Jurisdiction
South Africa
Judgment Date
30 October 2008
Case Number
13798/07
Procedural Posture
Urgent Application / Application for Specific Performance and Ancillary Relief
Outcome
Application granted. The first and second respondents are ordered to sign all documents and do all things necessary to effect transfer of the property to the applicant. Costs awarded against the first and second respondents jointly and severally.
Judges
SS Luthuli
Legal Topics
Specific Performance, Sale of Immovable Property, Dispute of Fact, Acknowledgment of Debt
Land and Property Civil Procedure Specific Performance Sale of Immovable Property Dispute of Fact Acknowledgment of Debt

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Parties

Suraya Essop Ismail

Applicant

Nagiah Kistensamy

Respondent

Ponama Kistensamy

Respondent

Registrar of Deeds

Respondent

Procedural Posture

Urgent Application / Application for Specific Performance and Ancillary Relief

Legal Issues

  1. 1 Whether the first and second respondents are obliged to sign documents and do all things necessary to effect transfer of the immovable property to the applicant.
  2. 2 Whether there is a genuine dispute of fact regarding the validity of the purchase and sale agreement.
  3. 3 Whether the second respondent was misled into signing the agreement and did not intend to sell the property.

Ratio Decidendi

The court found that all suspensive conditions of the sale agreement had been fulfilled and the purchase price paid. The second respondent's claim of being misled was unsupported and her denial was considered far-fetched and untenable. There was no genuine dispute of fact that could not be resolved on the papers. The respondents were obliged to comply with the agreement and effect transfer of the property to the applicant.

Court Disposition

Application granted. The first and second respondents are ordered to sign all documents and do all things necessary to effect transfer of the property to the applicant. Costs awarded against the first and second respondents jointly and severally.

Orders

  • An order is granted in terms of paragraphs 1 and 2 of the notice of motion.
  • The first and second respondents are ordered to pay the costs of the application, including all reserved costs, jointly and severally, the one paying the other to be absolved.