Court declines to set aside years‑long litigation over property dispute, counter‑claim referred to trial

The Gauteng Division of the High Court in Johannesburg has dismissed an attempt by a man to overturn multiple court orders issued over more than a decade in a bitter property dispute with his brother, ruling that the application was without merit and brought far outside a reasonable time frame. The court also ordered that a related counter‑claim proceed to trial.

Acting Judge Lindeque ruled on 25 June 2026 that the application brought by Maluleke Mahua Mkhacana James under Rule 42 to set aside earlier judgments could not succeed.

"The application, even if it had any merit, which it does not have, has not been brought within a reasonable time," the court held.

The dispute between brothers Maluleke James and Maluleke Richard dates back to 2008 and centres on the ownership and transfer of an immovable property in Chloorkop, Gauteng. The applicant sought to overturn High Court orders granted in 2008, 2011 and 2015, arguing they were issued "erroneously in his absence" and based on a mistaken belief that a partnership existed between the parties.

However, the court noted that the matter had already been litigated repeatedly, including unsuccessful rescission attempts and abandoned appeals.

During proceedings, the applicant's legal representative attempted to request mediation, but the court rejected the proposal.

"I refused the request to refer the application for mediation," the judge said, adding that Rule 42 applications require strict jurisdictional grounds, which were absent.

The court also refused an attempt by the applicant to withdraw the matter at the last minute. The respondent opposed the withdrawal, arguing it would likely lead to further repeated litigation.

"In light of the history of the matter… I refused leave to withdraw the application," the judge stated.

The applicant ultimately conceded the main application, which was dismissed with costs.

The court then turned to the respondent's counter‑application, which seeks to compel the applicant to sign transfer documents for the property, or alternatively authorise the sheriff to do so.

At the centre of the counter‑claim is a disputed R150,000 payment allegedly made in 2011 as part of a written deed of sale. The respondent claims full payment was made, supported by an affidavit from his attorney stating that funds were transferred into the seller's trust account. The applicant denies receiving the money.

"There are therefore two directly destructive factual versions whether the R150,000 was paid," the court observed, noting that conflicting affidavits from the same law firm created further uncertainty.

The judge found that the dispute could not be resolved on paper and raised concerns that the matter might involve "possible fraud and/or theft or forgery and uttering".

"The counter‑application cannot be properly decided on affidavit as material facts are in dispute," the judgment stated.

The court accordingly referred the counter‑application to trial, allowing for discovery, subpoenas and cross‑examination of witnesses. Motion papers will stand as pleadings for the purposes of further proceedings.

The costs of the counter‑application were reserved for determination by the trial court. The matter now proceeds under the broader framework of South African civil procedure.