Tshoma and Another v Phala N.O and Others (11223/21) [2024] ZAGPJHC 1211 (26 November 2024)

Tshoma and Another v Phala N.O and Others (11223/21) [2024] ZAGPJHC 1211 (26 November 2024)

The application is dismissed because the applicants failed to serve the application on a necessary party, namely the Executrix of the deceased estate, who has a direct and substantial interest in the proceedings. Additionally, the applicants did not adequately set out the factual basis for their claim in the founding affidavit, and the evidence presented did not support the relief sought. The court found that, in the presence of factual disputes, the matter must be decided on the respondents' version, which was more consistent and supported by documentation. The applicants' allegations of forgery and fraud were not substantiated by the evidence, and the procedural defect regarding service...

Citation
[2024] ZAGPJHC 1211
Parties
Applicant: Mpatametese Judas Tshoma; Applicant: Lephalale Francisca Tshoma; Respondent: Executrix in the Estate Late Moruthane Daniel Phala N.O; Respondent: Alina Lebogang Mafanyolle; Respondent: Tuso Attorneys; Respondent: Sebola Properties; Respondent: Deeds Office
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
26 November 2024
Case Number
11223/21
Procedural Posture
Review Application / Application for Cancellation of Sale and Transfer; Opposed Motion
Outcome
Application dismissed with costs.
Judges
S Aucamp
Legal Topics
Sale of Immovable Property, Fraud in Property Transactions, Motion Proceedings, Service on Necessary Parties
Land and Property Civil Procedure Sale of Immovable Property Fraud in Property Transactions Motion Proceedings Service on Necessary Parties

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Parties

Mpatametese Judas Tshoma

Applicant

Lephalale Francisca Tshoma

Applicant

Executrix in the Estate Late Moruthane Daniel Phala N.O

Respondent

Alina Lebogang Mafanyolle

Respondent

Tuso Attorneys

Respondent

Sebola Properties

Respondent

Deeds Office

Respondent

Procedural Posture

Review Application / Application for Cancellation of Sale and Transfer; Opposed Motion

Legal Issues

  1. 1 Whether the sale and transfer of the property should be set aside due to alleged fraud.
  2. 2 Whether the applicants' signatures on the offer to purchase were forged.
  3. 3 Whether the application can be entertained in the absence of service on a necessary party.

Ratio Decidendi

The application is dismissed because the applicants failed to serve the application on a necessary party, namely the Executrix of the deceased estate, who has a direct and substantial interest in the proceedings. Additionally, the applicants did not adequately set out the factual basis for their claim in the founding affidavit, and the evidence presented did not support the relief sought. The court found that, in the presence of factual disputes, the matter must be decided on the respondents' version, which was more consistent and supported by documentation. The applicants' allegations of forgery and fraud were not substantiated by the evidence, and the procedural defect regarding service...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed.
  • The first and second applicants, jointly and severally, the one paying the other to be absolved, are directed to pay the third respondent’s costs of this application, such costs to be taxed on scale B of Rule 67A of the Uniform Rules of Court.