Shomang v Moamogoe and Others (20/27090) [2021] ZAGPJHC 772 (11 August 2021)

Shomang v Moamogoe and Others (20/27090) [2021] ZAGPJHC 772 (11 August 2021)

The application was dismissed because the applicant failed to join the current bondholder, who had a direct and substantial interest in the property and would be prejudiced by the relief sought. Additionally, the matter was riddled with irresolvable disputes of fact regarding the alleged fraud, which could not be determined on motion proceedings. The applicant's contradictory versions and late introduction of expert evidence further undermined his case. The respondents' late expert evidence was excluded from the costs order as it was improperly introduced. The court found no basis to refer the matter to trial at such a late stage and concluded that the application was unsalvageable.

Citation
[2021] ZAGPJHC 772
Parties
Applicant: Solomon Shomang; Respondent: Joseph Thapelo Moamogoe; Respondent: Phetile Melba Ramere; Respondent: Mpho Thabita Shomang; Respondent: Registrar of Deeds, Pretoria
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
11 August 2021
Case Number
20/27090
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed with costs, excluding costs related to the respondents' expert evidence.
Judges
B M Slon
Legal Topics
Transfer of Immovable Property, Fraudulent Transfer, Joinder of Parties, Motion Proceedings, Expert Evidence
Land and Property Civil Procedure Transfer of Immovable Property Fraudulent Transfer Joinder of Parties Motion Proceedings Expert Evidence

Case Brief

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Parties

Solomon Shomang

Applicant

Joseph Thapelo Moamogoe

Respondent

Phetile Melba Ramere

Respondent

Mpho Thabita Shomang

Respondent

Registrar of Deeds, Pretoria

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the transfer of the property from the applicant and third respondent to the first and second respondents should be set aside due to alleged fraud.
  2. 2 Whether the non-joinder of the current bondholder precludes the granting of relief.
  3. 3 Whether disputes of fact regarding the alleged fraud can be resolved on motion proceedings.

Ratio Decidendi

The application was dismissed because the applicant failed to join the current bondholder, who had a direct and substantial interest in the property and would be prejudiced by the relief sought. Additionally, the matter was riddled with irresolvable disputes of fact regarding the alleged fraud, which could not be determined on motion proceedings. The applicant's contradictory versions and late introduction of expert evidence further undermined his case. The respondents' late expert evidence was excluded from the costs order as it was improperly introduced. The court found no basis to refer the matter to trial at such a late stage and concluded that the application was unsalvageable.

Court Disposition

Application dismissed with costs, excluding costs related to the respondents' expert evidence.

Orders

  • The application is dismissed.
  • The costs of the application are to be paid by the applicant, excluding costs occasioned by the engagement of the first and second respondents' expert, Mr C Greenfield, including those arising from annexures 'K' and 'R' to the first and second respondents' submissions dated 20 July 2021.