IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

DATE: 31 JANUARY 2012

In the matter between:

and

JUDGMENT

The applicant, Mr Cornelius, has brought an application for the following relief:

It is applicant's case that the relevant erf was allocated by the Department of Local Government Housing and Agriculture (which will hereinafter be referred to as "the
Department"), to his late grandmother (hereinafter referred to as "the deceased"), on 22 December 1989. It is alleged that the property was thereafter reallocated to third respondent on the strength of a will of the deceased dated 9 May 1991 in terms of which she bequeathed the property to her daughter, the third respondent.

It is alleged that pursuant to this reallocation, the property was sold to second respondent on 2 March 1992 for a sum of R9 269,00. According to the power of attorney annexed to the founding papers the property was sold to the second and third respondents married in community of property. It is common cause that second and third respondents had been married in community of property but that they were divorced on 29 May 1986. Transfer of the property was effected in the names of second and third respondents on 3 December 2003 in terms of deed of transfer number 2113278/2003 which is annexed to the founding papers.

Applicant's case, as I understand it, is based upon the allegation that second respondent defrauded The Department by:

a. Representing to them that the will referred to above, that is annexure CCC1, was the valid will of the deceased while she was still alive.

b. Representing to The Department that he was still married in community of property to the legatee in terms of the Will, namely second respondent.

Applicant is the sole heir of the deceased in terms of her Will dated 9 February 2009, Annexure CCC1A to the papers, and it is applicant's case that he became entitled to the property in terms of the latter Will.

Second respondent in his opposing affidavit denied any fraud on his part and annexed the deed of sale in terms of which he purchased the property as aforesaid. He states that the deceased arranged with The Department to reallocate the property to him and that he purchased the property pursuant to such reallocation. He states that the transfer of the property into the names of second and third respondents was due to a mistake by the transferring attorneys as he was not married to third respondent at the time of the sale or the transfer. He states that he only recently discovered the error, and is in a process of having the situation rectified.

"Where an application is made for the postponement of a trial it must firstly be made timeously; secondly, it will not be granted to a plaintiff in circumstances where the postponement is caused or occasioned by a happening or circumstance which the plaintiff at the time of set-down of the matter could have, and should have, foreseen; and thirdly, it will not be granted to a plaintiff where defendant will suffer by such postponement prejudice! which cannot be met by an order as to costs entrenched by such safeguards as to payment and the further hearing of the matter as the circumstances may warrant."

In view of the aforegoing, the application for postponement is refused and the application is dismissed with costs.
SMIT, J