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2021
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[2021] ZAGPJHC 772
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Shomang v Moamogoe and Others (20/27090) [2021] ZAGPJHC 772 (11 August 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNEBSURG
Case number: 20/27090
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES
DATE:
11 AUGUST 2021
In the matter between:
SOLOMON
SHOMANG
Applicant
and
JOSEPH
THAPELO MOAMOGOE
First
Respondent
PHETILE
MELBA RAMERE
Second
Respondent
MPHO
THABITA
SHOMANG
Third
Respondent
REGISTRAR
OF DEEDS, PRETORIA
Fourth
Respondent
JUDGMENT
SLON AJ
1.
In this application, the applicant seeks an
order to the following substantive effect:
1.1.
setting aside the registration of transfer
by the fourth respondent (‘the Registrar’) under deed of
transfer number
T66063/2018 of an immovable property situate at
Randfontein, Gauteng, (‘the property’) from the names of
the applicant
and the third respondent into those of the first and
second respondents (‘the respondents’);
1.2.
‘
reviving’ the deed of transfer
in respect of the property under deed of transfer number T105472/2013
evidencing that the applicant
and the third respondent are the
registered owners of the property.
2.
I need not decide whether the second prayer
is competent. Suffice it to say that it seems to me, as a matter of
law, that once the
later deed is set aside, the position under the
earlier would simply prevail. Any secretarial steps needed be taken
by the Registrar
as regards any endorsements on the two deeds, or
other ameliorative measures to reflect this in the relevant records,
would not,
I apprehend, be a process which the Court would ordinarily
be required to regulate by way of any particular order.
3.
That, however, is the least of the
difficulties in this matter. The conduct of this application has
been, to put it charitably,
rather peculiar. As will be seen below,
both substantively and procedurally it has left much to be desired.
Responsibility therefor
seems to lie primarily with the relevant
legal representatives involved: the litigants themselves are clearly
laypersons. It is
they who, in our less than perfect system, end up
paying the the costs of these mistakes.
4.
The third respondent is the applicant’s
wife, or former wife, I know not which: the applicant is not clear.
She has not made
any appearance in the matter. There are indications
that a divorce was underway between them, but the Court is not told
if that
was ever finalized, or what, if anything, the impact thereof
might have been on the question of the ownership of the property. She
seems to have signed certain documents but there is no version from
her of what happened, and nothing more is known of her position.
I
accept that this is not entirely the applicant’s fault, but one
would have expected him at least to deal in proper detail
with her
role in the events upon which he relies for his version.
5.
It would appear from a ‘Windeed’
document, dated 20 July 2020 and attached to the founding affidavit,
as follows:
5.1.
From some point in 2013 until 24 August
2018, the property was registered in the names of the applicant and
the third respondent.
5.2.
I digress to mention that the applicant
says that there was a mortgage bond registered over the property in
favour of First National
Bank (‘FNB’), presumably with
him and the third respondent as mortgagors, and that he was liable to
repay the loan
secured thereby. That bond is not, as far as I can
make out, referred to in the Windeed document, but nothing turns on
FNB’s
position for purposes hereof.
5.3.
On 24 August 2018 the property was
transferred, in terms of a deed of sale (the document says ‘purchase
date’) of 15
November 2015 (which appears to be an error –
as will be seen below, the (alleged) deed of sale with which this
application
is concerned is dated 15 November 2017), from the names
of the applicant and the third respondent into the names of the
respondents.
5.4.
At the same time as that transfer occurred,
a mortgage bond was registered over the property under mortgage
number B32516/2018 in
favour of SB Guarantee Co (RF) (Pty) Ltd (‘the
current bondholder’) which I am told is in some way connected
to the
Standard Bank of South Africa.
6.
I have no reason to doubt the factual
position as set out above.
7.
The material allegations presented in the
founding affidavit are briefly as follows:
7.1.
When the applicant fell into arrears with
the FNB bond over the property, he entered into a loan agreement with
the first respondent
to assist the applicant in paying off the FNB
loan.
7.2.
A month later the first respondent
approached the applicant, told him that he wanted to ‘secure’
the loan (this appears
to mean, in the context in which it appears,
reduce the loan agreement to writing) and presented some documents
for him to sign.
7.3.
The applicant signed the documents but, in
his own words, ‘was not advised nor explained to what [he] was
signing.’
He was not given copies thereof. He does not say if
he read or tried to understand them or, if he did either, what, if
anything,
they signified to him as a result thereof, save that he
believed that he was signing a loan agreement.
7.4.
At some point (it seems to have been in
July 2020 when the Windeed document was obtained but one cannot be
sure), the applicant’s
attorneys discovered that the property
had, on 24 August 2018, been transferred into the name of the
respondents, and the applicant
‘got the shock of [his] life’.
7.5.
The conveyancers involved in the transfer
were contacted and copies of documents were furnished to the
applicant’s attorneys.
7.6.
Having had sight of these documents, the
applicant says that he ‘unknowingly signed’ certain
documents which, from the
attachments to the founding affidavit, can
be seen to be:
7.6.1.
a power of attorney to transfer (apparently
signed also by the third respondent);
7.6.2.
a ‘personal and solvency affidavit’
(there are two of these, each apparently signed by the applicant and
the third respondent
before a Commissioner of Oaths at the
Randfontein SAPS).
7.7.
The applicant denies that he and the third
respondent signed the offer to purchase, dated 15 November 2017,
which would, if and
when accepted and signed by the respondents, have
become the deed of sale.
7.8.
That document evidences a signature
purporting to be that of the ‘seller’ but it appears not
in the space designated
therefor below the purchasers’
signatures, but rather at the very end of the document in the section
reserved for ‘information’
about the parties. As Mr
Tshole for the respondents rightly pointed out, it is nevertheless
expressly stated therein that that
section ‘constitutes an
integral part of this offer to purchase’.
7.9.
The name of the third respondent does not
appear,
qua
co-seller,
or at all, from that document, and there is no evidence of any
signature by her thereon.
7.10.
The applicant states that, even though he
signed the documents referred to above, he never had the intention of
selling the property
and was fraudulently induced to sign documents
of whose effect he was unaware.
8.
No wild leap of the imagination is required
to guess what the respondents say in response to this. It is not
necessary to go into
detail here. They deny by way of various
explanations that the applicant was deceived, claim that he signed
all the necessary documents
with the proper intention of selling the
property and that the transfer of the property on the basis thereof
was above reproach.
They too do not explain how it came about that
the third respondent was neither mentioned in, nor signed, the deed
of sale.
9.
The respondents also raise the non-joinder
of the current bondholder. In my view, it undoubtedly had a real and
substantial interest
in the outcome of this application which, if the
relief sought were to have been carried into effect, would have
prejudiced it
by the loss of its security for the loan granted. The
submissions of Mr Mbeki, for the applicant, plainly acknowledge this.
There
appears to be no direct authority on these precise facts –
perhaps for the reason that it is obvious. The authorities cited
against a joinder of necessity by Mr Mbeki are of little assistance.
I find that the non-joinder of the current bondholder was
material
and would have precluded the granting of the relief claimed.
10.
Apart from that problem, it need hardly be
said, on the strength of the well-worn
Plascon-Evans
test there is no possible way for the applicant to
escape the disputes of fact, entirely predictable as they were, on
the papers.
This is textbook example of when not to proceed on
motion. To establish fraud on motion is, as a general rule,
practically impossible.
11.
The applicant then delivered a replying
affidavit on or about 17 June 2021 – some six months after the
answer was delivered,
assiduously seeking condonation therefor. He
presents, in reply, a report by a handwriting expert who comes to the
conclusion that
the applicant signed none of the documents dealt with
in his founding affidavit as set out above. Apparently forgetting the
case
(such as it was) made out by him in the founding papers, he says
now in reply that he did not, after all, sign any of the documents
referred to above – since the expert on balance proclaims them
all to have been forged. Nor, even more surprisingly, is there
any
explanation by the applicant for his
volte-face
.
12.
It was then the turn of the respondents to
cast themselves into the fray, creating thereby a last-minute and
futile skirmish. This
arose as follows.
13.
About 2½ weeks before the matter was
due to be heard, I addressed a direction to the parties and asked
(among other things
not now relevant) if the respondents objected to
the filing of the replying affidavit; if so, on what grounds, and, if
not, did
they wish to make any submissions thereon?
14.
A week later, on 20 July 2021, a letter
arrived from the respondents’ attorneys and was uploaded onto
Caselines to the effect
that they had ‘no objection to the late
filing of the Applicant’s Replying Affidavit given the
following reasons’:
14.1.
it failed to reply to the answering papers
and the evidence adduced therein;
14.2.
it sought to raise a new cause of action.
15.
Both of those objections are obviously
well-taken. But they would surely have justified the respondents’
opposition to the
condonation application, not an accession thereto.
16.
Be that as it may, the respondents’
attorney then went on to deal with the applicant’s expert’s
report, and attached
to his own letter a report from another
handwriting expert, in which the findings of the applicant’s
expert were disputed
and the signatures declared, in all probability,
to be authentic.
17.
All that the respondents achieved thereby
was to seek, quite unnecessarily, to widen the already unbridgeable
chasm between the
facts relied upon by the applicant, in all their
colourful and contradictory variations, and the relief sought by him.
18.
When the hearing commenced, Mr Mbeki did
not request that the matter be referred to evidence or trial, but got
up (metaphorically
speaking, since it was online) ready to argue it
on the papers. When I raised the questions of the non-joinder and the
insuperable
disputes of fact on the papers, he submitted, upon my
suggestion of a possible solution, that a referral to trial would be
appropriate
and belatedly sought that I should exercise my discretion
to that effect.
I refer in passing in this
regard to
De Reszke v Maras &
Others
2006 (1) SA 401
(C) at paras
[32] & [33]; 412J-413H, dealing with the time at which counsel
should properly make his or her election to request
a referral to
oral evidence or trial.
19.
Mr Tshole submitted for the obvious reasons
already canvassed above that the matter be dismissed with costs.
20.
I have come to the conclusion, regrettably,
that the application is beyond salvation on any basis, try as one
might to have teased
out any reliable version the truth in the hope
of doing justice between the two competing sides. There is no remedy
for the applicant’s
conduct in having launched the proceedings
on paper, based on alleged fraud, in the first place; and for his
persisting therein
regardless, after the answering affidavit had been
filed, attempting thus in reply to pursue the relief on the strength
of two
largely distinct and mutually destructive sets of facts.
21.
Similarly, the respondents’ attempt
to put up expert evidence by way of a letter at the eleventh hour,
evidence, moreover,
in response to matters raised by the applicant in
reply which could never have seen the light of day, is most
unfortunate. My direction
had asked for submissions, not fresh
evidence. The costs occasioned by that report, which is not properly
before the Court, must
be excluded from the order I propose to make.
22.
It follows that the application must be
dismissed.
23.
I make the following order:
23.1.
The application is dismissed.
23.2.
The costs of the application are to be paid
by the applicant, save for the costs occasioned by the engagement of
the first and second
respondents’ expert, Mr C Greenfield,
including those arising from annexures ‘K’ and ‘R’
(at pages
031-1 to 031-6 and 032-1 to 032-7) to the first and second
respondents’ submissions dated 20 July 2021.
_______________________________
B M SLON
Acting Judge of the High
Court
Gauteng Local Division,
Johannesburg
This
judgment was prepared and authored by Acting Judge Slon. It is handed
down electronically by circulation to the parties or
their legal
representatives by email and by uploading it to the electronic file
of this matter on Caselines.
HEARD
ON:
3 August 2021
DECIDED
ON:
11 August 2021
HANDED
DOWN ON:
11 August 2021
For
the Applicant:
Mr
S D Mbeki
Instructed
by
Ditan
Attorneys
For
the 1st & 2nd Respondents: Mr M E
Tshole
Instructed
by:
G
Malumane Attorneys