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[2021] ZAGPJHC 468
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Wessie v Twala Attorneys and Others (2019/32449) [2021] ZAGPJHC 468 (27 September 2021)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NUMBER:
2019/32449
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED: NO
27 SEPTEMBER 2021
In the matter between:
WESSIE,
EMBAIKANGWE BEAUTY
Applicant
and
TWALA
ATTORNEYS
First Respondent
GAEGANE,
SARAH
Second Respondent
GAEGANE,
ERNEST
Third Respondent
THE
REGISTRAR OF DEEDS
Fourth Respondent
JUDGMENT
This judgment is
handed down electronically by circulation to the parties or their
legal representatives via email and by uploading
same onto CaseLines.
The handing down of this judgment is deemed to be 27 September 2021.
MOOKI AJ:
[1]
The applicant seeks relief that a deed of
sale be declared void; that the Registrar of Deeds be directed to
cancel a title deed
and process a new deed of transfer, on different
terms. Lastly, the applicant seeks to have the first respondent
(“Twala
Attorneys”) ordered to incur the transfer costs
associated with the new deed of transfer.
[2]
Twala Attorneys oppose the application. The
remaining respondents did not file affidavits.
[3]
This application concerns property situate
at Erf [....] Meadowlands Township Registration Division I.R.,
Province of Gauteng in
extent 251 (two hundred and fifty one) square
metres (“the property”).
[4]
The applicant and the second respondent are
sisters. The second and third respondents are married in community of
property. Twala
Attorneys drew a deed of sale in terms of which one
half-share of the property was transferred into the name of the
second and
third respondents, under Title Deed No. [....]/2018,
executed on 24 August 2018.
[5]
The applicant says that Twala Attorneys
failed to carry out her instructions in transferring one half-share
of the property into
the name of both the second and third
respondents.
[6]
The applicant is the registered owner of
the property under Deed of Transfer No. [....]/1988. The applicant
says she consulted with
her sister, the third respondent (the
brother-in-law] and Twala Attorneys in August 2017, during which she
informed them that she
had resolved to donate one half-share of the
property to her sister. The half share was to be excluded from
community of property
as between her sister and brother-in-law.
[7]
Twala Attorneys prepared a deed of sale
dated 15 August 2017. The applicant signed as “seller”,
with her sister and
brother-in-law signing as “purchaser”.
The deed of sale records that the applicant sold one half-share in
and to the
property to her sister and brother-in-law. The property
was valued at R290 000.00. Twala Attorneys were to effect transfer of
the
property.
[8]
One half-share of the property was
eventually registered in the name of the second and third
respondents, under Title Deed No. [....]/2018.
[9]
It appears that the applicant later lodged
a complaint with the Law Society concerning Twala Attorneys in
relation to the property.
The Law Society referred the applicant to
her attorneys of record.
[10]
The applicant took advice from her
attorneys of record, who informed her that Twala Attorneys should
have prepared a deed of donation
instead of a deed of sale regarding
the property. The applicant says that the deed of sale does not
reflect her true intention;
including that she did not instruct that
rights and title to the property be transferred to the second and
third respondents, that
she never received the amount of R290 000.00
that is said to be the purchase price.
[11]
The applicant’s attorneys wrote to
Twala Attorneys enquiring about the property. They requested proof of
payment of the R290
000.00 purchase price mentioned in the deed of
sale. They also requested a statement of account.
[12]
Twala Attorneys replied on 23 April 2019,
stating that the property was transferred at the instruction of the
applicant. They continued
that “Kindly note that your client
fraudulently registered the property belonging to her mother into her
own name. To our
knowledge her mother is still alive.” Twala
Attorneys further stated that the purchase agreement was a simulated
sale and
that “It is appalling to receive correspondence
requesting proof of payment of the purchase price.”
[13]
The new attorneys replied to Twala
Attorneys on 24 April 2019, recording that Twala Attorneys admitted
that the sale agreement was
simulated, “which in essence means
that the actual sale never took place and the sale agreement referred
to herein was merely
a tool (“causa”) used to transfer
the property.”
[14]
Twala Attorneys deny that the applicant
owned the property. They contend that the applicant and her sister
advised that the property
belonged to their mother, who moved into
the property with them sometime in 1956. Their mother died on 27
March 2019. Twala Attorneys
also contend that the property was
transferred into the name of the applicant following her
misrepresentation to the City Council.
[15]
Twala Attorneys say that the sale was
simulated. This followed a decision reached after consulting with the
applicant, her sister,
and brother-in-law. The decision was reached
in resolving a family dispute in which the property was transferred
into the name
of the applicant. A simulated sale was entered into
because a donation would attract tax; that the applicant never
intended to
donate her half-share to the second respondent, but
intended to remedy her conduct; namely that the property was
transferred into
the name of the applicant.
[16]
The applicant did not file a replying
affidavit. The second and third respondents did not file affidavits.
The effect then is that
this application is a perversion. Attorneys
representing the applicant will have been aware of the seriousness of
averments by
Twala Attorneys about their dealings with the applicant;
they appreciated that the property is said to have been transferred
into
the name of the applicant on her misrepresentation to the city
authorities; that the applicant admitted to a simulation, which
simulation seemingly was aimed at addressing a family dispute as
between the applicant and her sister concerning the property. The
averments by Twala Attorneys begged a response by the applicant.
[17]
The Court will not lend its authority to a
perversion by granting the relief sought by the applicant. Legal
practitioners are officers
of the Court. They are critical to the
administration of justice. Legal practitioners hold a contract of
trust with the public.
Twala Attorneys, on the facts of this
application, appear to have infringed that trust. They were aware
that the transaction concerning
the property was simulated. This
notwithstanding, they allowed the processes of the courts, including
the office of the Registrar
of Deeds, to have the Deeds Office record
that Title Deed No. [....]/2018 was occasioned by a deed of sale on
the terms recorded
in that document, including a “purchase
price” of R290 000,00 when this was, to their knowledge, false.
[18]
I direct that the Registrar bring this
judgement, together with the entire record in this application, to
the attention of the Legal
Practice Council. The Legal Practice
Council should consider whether Twala Attorneys (the firm) and any
individual legal practitioner
at that firm, conducted themselves in a
manner befitting a legal practitioner.
[19]
The Office of Registrar of Deeds serves an
important public function. Its records must give the public
confidence that its records
reflect bona fide transactions. The Court
cannot, for that reason, permit a title deed to remain a public
record when such a title
deed is a result of a simulated transaction.
The integrity of the deeds office needs to be maintained. It is
inappropriate that
Title Deed No. [....]/2018 remain a public
document that might be acted upon in future.
[20]
I make the following order:
1.
The application is dismissed;
2.
The Fourth respondent is ordered to cancel
title deed no. [....]/2018 in relation to Erf [....] Meadowlands
Township Registration
Division I.R., Province of Gauteng in extent
251 (two hundred and fifty one) square metres.
O. MOOKI
Acting Judge of the
High Court
Gauteng Local
Division, Johannesburg
Heard
:
20 July 2021
Judgment
:
27
September 2021
Applicant’s
Counsel
:
L Matsiela
Instructed
by
:
Masike Inc. Attorneys
First
Respondent’s Counsel
:
S. Nxumalo (Attorney)
Instructed
by
:
Twala Attorneys