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[2010] ZAECPEHC 28
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Dryer v Duncan and Others (3601/2009) [2010] ZAECPEHC 28 (15 June 2010)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – PORT ELIZABETH)
Case
No.:
3601/2009
Date
heard:
06
May 2010
Date
delivered:
15
June 2010
In the matter between:
CHERYL
HEATHER
DREYER
Applicant
and
LOUFRAN PETER
DUNCAN
First
Respondent
GREYVENSTEINS
INCORPORATED
Second
Respondent
REGISTRAR
OF DEEDS
Third
Respondent
J U D G M E N T
DAMBUZA, J
:
In this matter the
applicant brought an
urgent
application against the respondents, seeking a rule
nisi
calling upon them, and any other interested parties to show cause
why an order should not be granted that the first respondent
immediately restore possession of an immovable property described as
68 Constance Road, Broadwood, Port Elizabeth (Erf 1333)
(“the
property”), together with all the movable goods therein, to
the applicant. The applicant further seeks an
order that the
respondents be interdicted and restrained from proceeding with
registration of transfer of the property to any
other person,
pending finalisation of an action to be instituted by her against
the first respondent, for the setting aside of
a purported agreement
of sale of the property between her and the first respondent. The
applicant contends that this agreement
of sale is tainted by fraud
on the part of the first respondent.
Both the applicant
and the first respondent agree that as the matter is now opposed
there is no purpose in granting a rule
nisi
;
if the applicant has made out a case for the relief that she seeks,
a final order may be granted, albeit such an order is in
the nature
of an interim interdict pending an action to be instituted by the
applicant against the first respondent.
The c
ommon
cause facts which form the background to this matter are that in
1996 the applicant bought the property for a purchase price
of
R195,000.00. A portion of the purchase price was secured by way of
a mortgage bond registered over the property in favour
of Standard
Bank (“the bank”). At some stage the applicant fell
into arrears with her bond repayments. In November
2007 she was
advised that the bank was selling her property in execution. About
ten days prior to the sale in execution, she
found a pamphlet
offering or advertising loans in her post box. She contacted the
number and spoke to someone called Francois
who offered her a loan
to pay the arrears on her bond.
Subsequently
,
the applicant entered into certain negotiations with Francois which
led to the sale in execution by the bank being abandoned
as Francois
made the necessary payment of R24,000.00 to the bank. Francois
turned out to be the first respondent. The applicant
and the first
respondent are in dispute as to what the payment made by the first
respondent to the bank constituted. The applicant
contends that
the payment was a loan by the first respondent to her whilst,
according to the first respondent, the payment constituted
a portion
of the purchase price of R300,000.00 paid by him in respect of the
property.
The applicant’s
version is that
in
repayment of this loan, from January 2008, she made certain deposits
of R950.00 per month into a bank account in the name of
the first
respondent. She paid this amount every month until about June 2008
whereafter she stopped as she had not been provided
with a copy of
the “loan agreement”. She also had not been provided
with a statement setting out the outstanding
amount, despite
promises by the first respondent, on many occasions, that he would
provide a copy of the document to her.
According to her when she
met with the first respondent in November 2007 the latter had caused
her to sign a document which she
thought was a loan agreement. They
further went to a police station as the first respondent required a
certified copy of the
applicant’s identity document.
It is
now
common cause that there is presently a written agreement of sale in
respect of the property, in terms of which the applicant
sold the
property to the first respondent. As I understand the applicant’s
case, she does not dispute that she signed
the agreement of sale as
the seller; her contention is only that she was misled by the first
respondent into thinking that she
was signing a loan agreement.
During April 2009, the applicant left
the property and went to Cape Town to visit her daughter. In
November 2009 whilst in Cape
Town, she was advised by a friend who
had been looking after her cats that her property was on sale and
that the locks thereto
had been changed. The applicant contacted
the estate agent whom, she had learnt, was responsible for the sale,
and was advised
that the first respondent was in fact the owner of
the house and the he had instructed the estate agents to sell it.
In due course the
applicant
contacted
Peet Viljoen Attorneys who had handled the transfer of the property
from the applicant to the first respondent. The
attorneys advised
that they were in possession of, amongst others, a Deed of Sale, a
Power of Attorney, a South African Revenue
Services (SARS) Transfer
Duty Form, an affidavit and an annexure, all signed by the applicant
in respect of the sale and transfer
of the house. The applicant
insists that she only signed a two page document and denies having
signed an affidavit and any
document with a SARS logo on it. She
states that she would never have signed any document relating to the
sale of her property.
The first
respondent denies that there ever was a loan
agreement
between the applicant and himself. He states, in his answering
affidavit that he advised the applicant that he could
not lend her
money as she was already blacklisted. According to him, the terms
of the agreement between the applicant and himself
were that he
would pay the arrears on the bond and the applicant would then
continue to stay in the house as long as she paid
the bond repayment
instalments subsequent to the arrears being extinguished. The
applicant’s payments would now, constitute
occupational
rental. The house would be sold if the applicant failed to make
these payments.
In
limine
,
the first respondent contends that the application should be
dismissed for lack of urgency alone, as the applicant first became
aware, at least on 16 November 2009, that the property was for sale
and could be transferred to a third person once sold, however,
she
waited until
11 December 2009 before launching the application.
I start with the issue of urgency.
Rule 6(12)(b) of
the Rules of this Court provides that an applicant in an urgent
application must, in his or her founding affidavit,
set out
explicitly, the circumstances on which he or she relies to render
the matter urgent and the reason why he or she claims
that he or she
cannot be afforded substantial relief at a hearing in due course.
In this regard the applicant’s case
is that at the time of
launching the application she had no details relating to how far the
sale to the third person had progressed.
From what appears on the
papers the applicant’s attorneys, on 19 November 2009, wrote
to Peet Viljoen Attorneys requesting
an undertaking that they would
not proceed with the sale on behalf of the first respondent, so as
to allow time for the matter
to be investigated by the applicant’s
attorneys. They also demanded that the keys to the property be
returned to the
applicant so that she would be reinstated to the
property. On 24 November 2009, Peet Viljoen Attorneys responded
advising that
the first respondent had a right to change the locks
on the property as the property was his. They also warned that if
the applicant
did not remove her possessions from the property, the
first respondent would charge storage fees. On 25 November 2009,
the
applicant’s attorneys replied to Peet Viljoen Attorneys
enquiring whether they would accept service of documents in this
application as they did not have the first respondent’s
physical address at the time. Peet Viljoen Attorneys in a later
letter dated 26 November 2009, advised that they did not have
instructions to accept service in this matter. They further
advised that they were trying to get hold of the first respondent to
obtain his full particulars and instructions. It appears
that
thereafter the first respondent instructed a different firm of
attorneys to handle the matter on his behalf. On 4 December
2009,
the applicant’s attorneys wrote to Greyvenstein Attorneys
requesting an address whereat the first respondent would
be willing
to accept service of the application. This letter is followed by
the institution of the application on 10 December
2009.
This Court has
held that where an applicant first seeks compliance with the
respondent before launching an application on an urgent
basis, it
cannot be said that the applicant has been dilatory in bringing the
application or that urgency was self created.
1
I do not agree with the submission on behalf of the first
respondent that the urgency in this application was self created.
The evidence shows that during the period of about three weeks
subsequent to the applicant being aware of the sale of the property,
she and/or her attorneys were in continuous contact with the first
respondent’s attorneys and the estate agents who had
been
instructed by the first respondent to attend to the sale of the
property. There is evidence that the purchase price in
respect of
the property had already been paid by the new purchaser to
Greyvensteins Attorneys and that the first respondent was
demanding
from the attorneys that the money be paid to him. There was the
difficulty regarding service of the papers on the
first respondent.
The first respondent suggests that the applicant could have
immediately obtained the required information
from the Registrar of
Deeds or the South African Revenue Services. On the other hand the
first respondent himself states that
transfer of the property had
not yet begun. It is also apparent from the papers that the first
respondent’s attorneys
were not willing to divulge particulars
of the buyer of the property, the first respondent’s physical
address or how far
the process of transfer had advanced. It seems
to me that the options suggested by the first respondent would not
have necessarily
yielded the speedy solution he contends they would
have. It was in my view, not unreasonable in the circumstances for
the applicant
and/or his attorneys to first contact the estate
agents and the attorneys handling the registration of transfer of
the property
prior to launching the application. Such
communication did not detract from the urgency inherent in saving or
trying to avoid
the impending loss of the applicant’s home.
Consequently I am not persuaded that the application falls to be
dismissed
for lack of urgency.
It is trite that
an applicant in an application for an interim interdict must prove a
prima
facie
right, a well grounded apprehension of irreparable harm if the
interim relief is not granted, and the ultimate relief is eventually
granted, that the balance of convenience favours the granting of the
interim relief and that the applicant has no other satisfactory
relief.
2
A
s
to whether the applicant has established a
prima
facie
right to the relief she seeks, both the applicant and the first
respondent are in agreement that there are a number of disputed
facts in the application which can only be properly resolved at
trial. The disputed facts are apparent from a mere reading of
the
above paragraphs and I do not intend to set them out in detail, save
to state that, in the main, they relate to the parties
intention
during the signing of the deed of sale. I agree that the
disputes of fact can only be resolved at trial. Having
regard to
the common cause facts or facts that are not in dispute, together
with the inherent probabilities in the application,
I am satisfied
that the requisite of a
prima
facie
right has been established. It is not in dispute that the property
in question belonged to the applicant and that it was her
home prior
to the first respondent obtaining transfer thereof to himself.
The applicant
contends that if
she
is successful in her action to set aside the transfer of the
property to the first respondent on the basis of fraud, she would
lose any claim to the property if the first respondent would sell it
to a third party. She would therefore have lost her home
and the
harm done would be irreparable. I agree with the submission on
behalf of the applicant that a claim of damages against
the first
respondent as suggested by the first respondent may not be the
appropriate relief to a person who has lost her home.
A damages
claim would not sufficiently compensate the applicant for the loss
of her home, in the event that she is successful
in the action
against the first respondent.
For the same
reasons, I am satisfied that the prejudice which the applicant
stands to suffer if the interim interdict is not granted
outweighs
prejudice which the respondents stand to suffer if the orders sought
are granted. The balance of convenience clearly
favours the
applicant.
With regard to
spoliation, it is common cause that the first respondent broke the
locks on the property to gain access thereto.
I can find no
evidence to countenance the contention by the applicant that prior
to the first respondent breaking the locks,
she (the applicant) was
in peaceful and undisturbed possession of the property, albeit not
physically present there.
The
applicant’s neighbour and/or friend held the keys on behalf of
the applicant and the applicant was therefore in control
of the
property when the first respondent changed the locks thereto.
Consequently, the applicant has established the requisites
for a
spoliation order, being that she was in peaceful and undisturbed
possession of the property and that the first respondent
deprived
her of the possession, forcibly and/or wrongfully, without her
consent.
Consequently, I
grant the following order:
That the first respondent
immediately restore possession of the immovable property, more
fully described as No. 68 Constance
Road, Broadwood, Port
Elizabeth, to the applicant.
The first, second
and third respondents are hereby interdicted and restrained from
proceeding with registration of transfer
of the property at 68
Constance Road,
Broadwood,
Port Elizabeth, to any other party pending the finalisation of an
action to be instituted by the applicant against
the first
respondent for the setting aside of the purported agreement of sale
between the applicant and the first respondent,
such application to
be instituted within one month of this order.
I
n
the event that the applicant fails to institute the said action
within one month of this order, the interdict shall lapse.
The first respondent is ordered to
pay the costs of this application.
_________________________
N. DAMBUZA
JUDGE OF THE HIGH COURT
Appearances
:
For the
applicant: Adv PWA Scott instructed by Kaplan Blumberg Attorneys of
Port Elizabeth
For the first
respondents: Mr S B Laubscher of Laubscher Attorneys of Port
Elizabeth
1
Nelson Mandela Metropolitan
Municipality and Others v Greyvenouw CC and Others
2004
(2) SA 81
(SE) at 94E-F.
2
L.F. Boshoff Investments
(Pty) Ltd v Cape Town Municipality, Cape Town Municipality v L.F.
Boshoff Investments (Pty) Ltd
1969
(2) SA 256
(C) at 267B-E.