Rashied and Another v CLIOV 6 (Pty) Ltd and Others (063600/2023) [2024] ZAGPJHC 1148 (8 November 2024)

Rashied and Another v CLIOV 6 (Pty) Ltd and Others (063600/2023) [2024] ZAGPJHC 1148 (8 November 2024)

The application was dismissed because the relief sought involved complex and serious factual disputes that could not be resolved on affidavit in motion proceedings. The Applicants' founding papers were vague, relied on hearsay, and failed to provide sufficient detail or proof. The court found that the matter should have been brought by way of trial action, not application. The First Respondent's contingent counter application for removal of the Second Applicant as executor was also dismissed, as such relief requires a separate substantive application. Condonation for the late filing of the First Respondent's answering affidavit was granted, as no prejudice was shown and the Applicants'...

Citation
[2024] ZAGPJHC 1148
Parties
Applicant: Najam Moegamat Rashied; Applicant: Sierra Mandisa Ngcamu; Respondent: CLIOV 6 (Pty) Ltd; Respondent: Tasneem Kara; Respondent: Sweet Waters Properties 233 CC; Respondent: Glonaz Traders CC; Respondent: Galieb Ebrahim Essop; Respondent: Mqingwana Zazi; Respondent: Denfree Estate (Pty) Ltd; Respondent: The Master of the High Court, Johannesburg; Respondent: The Registrar of Deeds, Johannesburg
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
8 November 2024
Case Number
063600/2023
Procedural Posture
Urgent Application / Application for Final Relief in Motion Proceedings
Outcome
Application dismissed with costs on an attorney and client scale; contingent counter application dismissed; condonation granted for late filing of answering affidavit.
Judges
Johann Gautschi
Legal Topics
Setting Aside Transfer, Joinder, Removal of Executor, Condonation of Late Filing
Land and Property Civil Procedure Setting Aside Transfer Joinder Removal of Executor Condonation of Late Filing

Case Brief

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Parties

Najam Moegamat Rashied

Applicant

Sierra Mandisa Ngcamu

Applicant

CLIOV 6 (Pty) Ltd

Respondent

Tasneem Kara

Respondent

Sweet Waters Properties 233 CC

Respondent

Glonaz Traders CC

Respondent

Galieb Ebrahim Essop

Respondent

Mqingwana Zazi

Respondent

Denfree Estate (Pty) Ltd

Respondent

The Master of the High Court, Johannesburg

Respondent

The Registrar of Deeds, Johannesburg

Respondent

Procedural Posture

Urgent Application / Application for Final Relief in Motion Proceedings

Legal Issues

  1. 1 Whether the transfer and registration of the immovable property should be set aside as invalid.
  2. 2 Whether the sale agreements relating to the property are invalid and should be set aside.
  3. 3 Whether the application should have been brought by way of action rather than motion proceedings.

Ratio Decidendi

The application was dismissed because the relief sought involved complex and serious factual disputes that could not be resolved on affidavit in motion proceedings. The Applicants' founding papers were vague, relied on hearsay, and failed to provide sufficient detail or proof. The court found that the matter should have been brought by way of trial action, not application. The First Respondent's contingent counter application for removal of the Second Applicant as executor was also dismissed, as such relief requires a separate substantive application. Condonation for the late filing of the First Respondent's answering affidavit was granted, as no prejudice was shown and the Applicants'...

Court Disposition

Application dismissed with costs on an attorney and client scale; contingent counter application dismissed; condonation granted for late filing of answering affidavit.

Orders

  • The application is dismissed.
  • The First and Second Applicants are ordered to pay the First Respondent's costs of this application jointly and severally and on the scale as between attorney and client.