Malebana v Jordan NO and Others (84931/2018) [2022] ZAGPPHC 76 (8 February 2022)

Malebana v Jordan NO and Others (84931/2018) [2022] ZAGPPHC 76 (8 February 2022)

The court found that compliance with the liquidator's directive required payment or guarantee of the purchase price to be made to the nominated transferring attorneys, not to the liquidator or the parties' own attorneys. Both parties failed to fully comply with this term due to the liquidator's conduct in accepting payment directly and not immediately transferring it to the transferring attorneys. The absence of clarity and the liquidator's failure to explain his actions rendered it impossible to determine which party complied first. The interests of justice required that the matter be referred back to the liquidator for a fair and efficient resolution, rather than granting the relief...

Citation
[2022] ZAGPPHC 76
Parties
Applicant: Malebana Silas Sello; Respondent: Phillip Jordan NO; Respondent: Van Heerdens Incorporated; Respondent: Eliza Malebana (born Mtengwe); Respondent: Registrar of Deeds
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
8 February 2022
Case Number
84931/2018
Procedural Posture
Urgent Application / Application for Interdict and Direction Regarding Registration of Property Following Divorce Settlement
Outcome
Application refused with no order as to costs.
Judges
Khashane La M. Manamela
Legal Topics
Division of Joint Estate, Settlement Agreement Enforcement, Property Transfer, Liquidator Role, Interdict, Compliance With Contractual Terms
Family and Children Land and Property Civil Procedure Division of Joint Estate Settlement Agreement Enforcement Property Transfer Liquidator Role Interdict +1 more

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Parties

Malebana Silas Sello

Applicant

Phillip Jordan NO

Respondent

Van Heerdens Incorporated

Respondent

Eliza Malebana (born Mtengwe)

Respondent

Registrar of Deeds

Respondent

Procedural Posture

Urgent Application / Application for Interdict and Direction Regarding Registration of Property Following Divorce Settlement

Legal Issues

  1. 1 Whether the applicant or third respondent complied first with the liquidator's directive regarding payment or guarantee for the purchase of the property.
  2. 2 Whether payment into the trust account of the liquidator or own attorneys constituted compliance with the directive to pay the nominated transferring attorneys.
  3. 3 Whether the liquidator's conduct affected the parties' ability to comply with the terms and the fairness of the process.

Ratio Decidendi

The court found that compliance with the liquidator's directive required payment or guarantee of the purchase price to be made to the nominated transferring attorneys, not to the liquidator or the parties' own attorneys. Both parties failed to fully comply with this term due to the liquidator's conduct in accepting payment directly and not immediately transferring it to the transferring attorneys. The absence of clarity and the liquidator's failure to explain his actions rendered it impossible to determine which party complied first. The interests of justice required that the matter be referred back to the liquidator for a fair and efficient resolution, rather than granting the relief...

Court Disposition

Application refused with no order as to costs.

Orders

  • The application is refused.
  • No order as to costs.