SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2023-024848
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE SIGNATURE
In the matter between:-
C[...] H[...] BODY CORPORATE Applicant
and
JEANLING LEE 1st Respondent
FAIZA BECK 2nd Respondent
THE OFFICE OF THE REGISTRAR OF
DEEDS, JOHANNESBURG 3rd Respondent
DE WET VAN DER WATT INCORPORATED 4th Respondent
JUDGMENT
Mfenyana J:
[1] The applicant seeks an order directing the first and third respondents to
transfer Unit 1[…] , C[...] H[...] ("the property"), to the applicant and to sign all
documents necessary to effect the transfer, failing which the Sheriff of the
Court is to be authorised to sign those documents on behalf of the first
respondent.
[2] The applicant seeks costs only against the respondents who oppose the
application.
[3] Only the first and fourth respondents oppose the application. The fourth
respondent says in its answering affidavit that it filed the affidavit solely to
correct factual inaccuracies in the founding affidavit, yet it also ventures into
other issues, including an interpretative exercise of the order of Mia J. The
affidavit further explains the fourth respondent’s role in the correspondence
that ensued after Mia J’s order . This, the fourth respondent explains, is
because the relief sought is directed mainly at the first respondent.
[4] The dispute is rooted in a transfer of the same property, carried out by the
fourth applicant as a conveyancer . At the time, the first respondent was the
chairperson and the second respondent , as well as other individuals, were
trustees of the applicant.
[5] On 29 October 2021, y ears after the transfer of the property to the first
respondent, the applicant notified homeowners of a special general meeting
(SGM) to be held on 1 December 2021 to consider and approve the
procedure followed in the sale of unit 1[…] .
[6] This prompted one Mahomed Cassim (Mr Cassim) to, on 22 November 2021,
institute an urgent application seeking to interdict the inclusion of the said
item on the SGM agenda, on the basis that the aforementioned sale did not
comply with the provisions of the Sectional Titles Schemes Management Act,
and was therefore void ab initio.
[7] On 1 December 2021, Mia J issued an order in respect of the urgent
application. The order “interdicted and restrained” the applicant and
pertaining Solver Enterprises(Pty) Ltd, from including the item o n the agenda
of the SGM of 1 December 2021, on the basis that the sale and transfer did
not comply with the provisions of the Sectional Titles Management Act
(STMA)1 and was thus, void ab initio.
[8] The first respondent and De Wet van der Watt Attorneys, the f ourth
respondent in t he present application, were directed to furnish Mr Cassim
with the documentation relevant to the “purported sale of the property”.
[9] In the founding affidavit, Ms Saheena Sataar Cassim (Ms Cassim), asserts
that the Body Corporate is entitled to restitution on the basis that it was the
owner of the property before the unit was sold to the first respondent . She
adds that the property was sold with a portion of the common property and
exclusive-use areas.
[10] The impugned sale agreement was concluded in October 2015. The second
respondent represented the Body Corporate, and the first respondent signed
as the purchaser in her personal capacity.
[11] In terms of the sale agreement, the seller sold Sectional Title Unit […] in C[...]
H[...], measuring 135 square metres, together with Room R […] , Room R[…] ,
and Parking P […] , to the purchaser for R1 000 000.00 (one million rand),
payable as set out in the annexure. A deposit of R1 000 000.00 was payable
to De Wet Attorneys.
[12] A reconciliation statement provided by the Body Corporate shows that,
between 5 November 2015 and 26 January 2016, the first respondent paid a
total of R906 700.00 (nine hundred and six thousand seven hundred rand)
into the Body Corporate’s bank account in several instalments.
1 Act 8 of 2011.
[13] A statement of account from the fourth respondent to the applicant, dated 17
December 2015, shows that from the purchase price of R1 000 000.00,
amounts totalling R131 343.80 were debited, leaving a credit balance of
R868 656.20 in favour of the applicant. This remaining credit amount of R868
656.20 was deposited the same day into the applicant’s bank account in two
payments of R813 656.20 and R55 000.00.
[14] On 17 August 2022, the applicant, through its attorneys, invited the first
respondent to explain the source of the funds used to purchase the property,
alleging that the funds were unlawfully obtained. The first respondent did not
respond or provide any explanation. The applicant, therefore, avers that this
indicates the funds were not lawfully procured.
[15] The applicant avers that, although it seeks restitution, it cannot endorse
actual or suspected illegality by returning the purchase price without an
explanation from the first respondent. In essence, it argues that the property
should be transferred to it, but does not tender the return of the purchase
price.
[16] The applicant avers that the first respondent is in unlawful possession of the
property, prejudicing the Body Corporate. The applicant further contends that
this has unjustly enriched the first respondent, while the Body Corporate
loses income each day the property remains vacant. In these circumstances,
the applicant argues that the first respondent is not entitled to a refund of the
purchase price, as this would effectively sanction a suspected illegality.
[17] In the alternative, the applicant argues that any amount that may have been
due to the first respondent should be set off against the benefit she derived
from her unlawful beneficial occupation of the property, including the common
property, from which the applicant has been excluded for approximately
seven years.
[18] The applicant contends that the fourth respondent, as a conveyancer,
enabled and facilitated the sale and transfer of the property without
conducting any due diligence or complying with the applicable legislation and
for this reason, the sale was declared void ab initio. Moreover, the fourth
respondent allowed the transfer to proceed without payment of the full
purchase price.
[19] In opposing the application, the first respondent states that the sale was
authorised by the then trustees of the applicant, including the second
respondent, who instructed the applicant’s attorneys to proceed with the
transfer, as the Body Corporate needed funds for litigation in which it was
involved with Bombela.
[20] The first respondent contends that the property was transferred to her after
she paid the full purchase price, but provides no proof, relying instead on
legal advice. She further states that the applicant initially agreed to refund her
but later withdrew this offer, leading her to file a counterapplication. She
alleges that the total amount she paid is R1 001 700.00, with the difference
constituting interest, a fact also confirmed by the fourth respondent.
Nonetheless, neither respondent explains how this a mount was c omputed,
and no supporting documentation has been provided.
[21] The first respondent maintains that insofar as Mia J’s order declares the sale
void, it is erroneous. She, however, states that she does not intend to place
substantial reliance on this alleged error. Importantly, the first respondent
does not oppose the return of the property to the applicant and undertakes to
cooperate in the transfer, against repayment of the R1 million purchase price.
[22] In the counterapplication, the first respondent seeks a refund of the purchase
price.
[23] In his answering affidavit, the fourth respondent contends that the affidavit is
filed solely to correct factual inaccuracies in the applicant’s founding affidavit,
filed solely to correct factual inaccuracies in the applicant’s founding affidavit,
as the applicant’s claim is directed predominantly at the first respondent.
[24] The fourth respondent contends that the applicant’s claim is predicated on an
incorrect reading of Mia J’s order. The deponent states that Mia J did not
consider the merits of the matter, as the application before her was an urgent
interdict against the applicant, not to include the agenda item of ratification of
the sale of the property, on the basis that it was void ab initio. Thus, no order
was made on the merits.
[20] The fourth respondent refers to correspondence with the applicant in 2022, in
which the fourth respondent, on behalf of the first respondent, informed the
applicant that Mia J had only pronounced on the interdictory relief and that the
first respondent would accept restitution of the full amount of R1 000 000.00.
The fourth respondent, therefore, avers that, as the applicant offered
restitution and the first respondent accepted it, the applicant cannot now seek
to acquire the property for nothing, as it has already made its election.
[25] Regarding compliance with applicable legislative provisions, the fourth
respondent avers that “at the time of transfer, it was believed that all the
formalities required in terms of the Sectional Titles Management Act had
been complied with”, and the Body Corporate does not state which provisions
were not complied with. Importantly, he argues that he transferred the
property in terms of the Sectional Titles Act
2.
[26] The fourth respondent avers that the applicant has conceded in the founding
affidavit that the full purchase price was paid and references portions of the
founding affidavit in which the applicant supposedly conceded this fact. In the
said paragraphs, the applicant merely concedes to a “total purchase price” of
R906 700.00, as well as the fact that the fourth respondent only provided
proof of a lesser amount.
2 Act 95 of 1986.
[27] The fourth respondent denies that his conduct was reckless and
unprofessional. He further contends that, since the applicant has already
received payment for the property, the applicant cannot now insist on
retaining it without compensation.
[28] In essence, the fourth respondent contends that the first respondent is
entitled to payment of the purchase price, which he states is an amount of R1
001 700.00, representing the purchase price of R1 million and agreed interest
due to the late payment of the purchase price.
[29] In the replying affidavit in respect of the counterapplication, the first
respondent seeks to challenge the applicant’s reliance and interpretation of
Mia J’s order. This is untenable. A party must make its case in its founding
papers. In her founding affidavit, the first respondent expressly states that
she does not seek to challenge Mia J’s order. Her later attempt to do so is
therefore both belated and inconsequential.
[30] The applicant, on the other hand, in its replying affidavit denies that it
misconstrued Mia J’s order and contends that the status quo ante should be
restored. It further avers that it made the restitution offer before receiving the
documents referred to in that order; that the respondents’ response did not
constitute acceptance; and that the fourth respondent instead submitted a
new offer.
[31] If one cuts to the bone of this matter, it is clear that the key issue in dispute is
whether the applicant is entitled to the restoration of the property without
tendering the restoration of the purchase price paid by the first respondent.
Linked to that is whether the first is entitled to the restitution of the purchase
price and, if so, in what amount.
[32] While the parties agree on restitution, they do not agree on how that
restitution should take place. The applicant’s stance is that while it is entitled
to restoration of ownership of the property, the first respondent is not entitled
to the purchase price she paid, as the funds used to acquire the property
were possibly acquired unlawfully. On the other hand, the first respondent
avers that she is entitled to restoration of the purchase price becaus e at the
time the transaction was concluded, she believed that it was above board
and for the benefit of the applicant.
[33] The primary purpose of the remedy of restitutio in integrum is to restore
parties to the exact positions they held immediately before the contract was
concluded. In Strydom v Blue Owl CC
3, the court confirmed that the rule (of
restitutio in integrum ) is founded on the principle of equity and justice, and
that “our courts have departed from the strict application of the rule and,
where necessary, have adjusted the deficiency by monetary compensation.”
In transactions tainted by error or fraud, the aim is to afford the innocent party
fair relief by reversing the transaction.
[34] In Quartermark Investments (Pty) Ltd v Mkhwanazi and another 4, where
fraudulent misrepresentations induced the appellant to conclude the contract,
the Supreme Court of Appeal (SCA) noted that, in those circumstances, the
innocent party was entitled to restitution despite not tendering to restore the
benefits she received under the contract. The SCA reasoned that “a court will
not set aside a contract and grant consequential relief for fraudulent
misrepresentation unless the innocent party is able and willing to restore
what he or she received under the contract.”
5
[35] In the present case, the applicant does not rely on fraudulent
misrepresentation. The applicant’s gripe has nothing to do with the
conclusion of the contract, per se . All it says is that it suspects that the funds
used to acquire the property were obtained through unlawful means. This
3 [2002] ZAWCHC 42, para 38.
4 [2013] ZASCA 150.
5 Para 15; see also in this regard: Feinstein v Niggli & another 1981 (2) SA 684 (A) at 700G – H; North
West Provincial Government & another v Tswaing Consulting CC & others 2007 (4) SA 452 (SCA)
para 17.
does not establish fraud. In my view, this is dispositive of the applicant’s
contentions in this regard.
[36] The first respondent has tendered the return of the property for retransfer to
the applicant. The first respondent contends that , in return, it is entitled to
repayment of an amount of R1 001 700, whereas the applicant avers that the
first respondent did not pay the full purchase price and only paid R906
700.00, as evidenced by the reconciliation statement. The respondents have
provided no evidence that the full purchase price of R1 000 000.00 was ever
paid to the applicant. They have also not provided any evidence that the
amount of R1 001 700 was paid . At best, the first respondent has provided a
tabulation of the amounts allegedly paid in respect of the purchase price.
[37] Curiously, these amounts sum up to a different amount of R1 000 656.20 and
not R1 001 700. They also do not align with the very documents relied on by
both the first and fourth respondents. In addition, the documents referred to
by the first respondent as proof of payment of such amounts do not form part
of the record.
[38] The second leg of the applicant’s claim is related to the first; that if this court
finds that the first respondent is entitled to restitution, the damages that the
applicant suffered due to the benefit the first respondent enjoyed during her
possession of the property, including the common property from which the
applicant was excluded, should be set off against any amount she receives.
The quantum of these damages has not been computed or agreed on. What
the applicant says is that it would have rented the unit out for R12 000 per
month.
[39] It was argued on behalf of the respondents that the applicant has already
instituted separate proceedings on 17 December 2024 for damages in the
amount of R989 032.68, in respect of the first respondent’s possession of the
property under case number: 2024/148406. As such, the applicant’s claim for
property under case number: 2024/148406. As such, the applicant’s claim for
compensation for the first respondent’s possession of the property following
the agreement is unsustainable, the respondents further aver.
[40] In essence, what the respondent is saying is that the matter is pending before
another court. This constitutes a defence of lis alibi pendens . Noting that this
occurred only at the end of 2024, the applicant has not disputed this
averment. As the first respondent states in the replying affidavit in the
counterapplication, this action is at an advanced stage, as the applicant has
already delivered its plea to the counterclaim.
[41] Accordingly, I conclude that the applicant is entitled to restitution of the
ownership of the property against payment of the purchase price to the first
respondent.
[42] Whilst it is alleged in the papers ( something that is not in dispute) that the
purchase price was a sum of R1000 000.00, it appears from the papers that
only a sum of R868 565.20 was paid to the seller. There is no clear account
as to how the balance was disbursed, save for some debits relating to some
or other charges levied by the deeds office, clearance figures and the like.
An amount of R130 000.00, allegedly paid to the applicant, remains in
dispute as the respondents have provided no proof of payment of the said
amount to the applicant. In the absence of proof of paym ent of the said
amount, logic dictates that the first respondent is entitled to reimbursement of
the sum of R868 565.20 paid by the fourth respondent to the applicant.
Costs
[43] The applicant seeks attorney and client costs against the first respondent and
costs de bonis propriis against the fourth respondent . It further seeks an
order referring the conduct of the attorney involved to the Legal Practice
Council. The bases for this relief are, first, that the fourth respondent’s
conduct, in failing to conduct due diligence as to whether the power of
attorney signed by the second respondent, authorising the sale and transfer
of the property, was valid, was reckless and unprofessiona l. Second, the
fourth respondent failed to ensure compliance with the provisions of the
Sectional Titles Schemes Management Act relating to the alienation of
common property. Third, the full purchase price had not been paid.
[44] The general rule is that c osts follow the result. The applicant has been
substantially successful in this matter, while the first respondent has
succeeded only in relation to her claim for payment of the purchase price.
Furthermore, the need for this application arose from the respondents’ non-
compliance with the applicable provisions of the Sectional Titles Schemes
Management Act, as held by Mia J. That non-compliance stemmed from the
conduct of both the first and fourth respondents.
[45] The fourth respondent is not the first respondent’s attorney in these
proceedings. There was therefore no need for it to oppose the application in
the manner that it did. As previously noted, although the fourth respondent
claims it filed the answering affidavit merely to correct factual inaccuracies,
the contents of that affidavit go beyond this stated purpose and, in effect,
constitute an opposition to the applicant’s claim, including in relation to the
first respondent.
[46] Both the first and fourth respondents seem to suggest that they believed that
all the necessary legal prescripts were complied with. As a conveyancer, the
fourth respondent had a duty to ensure that all formalities were complied
with. Section 5(1)(a) of the Sectional Titles Schemes Management Act, which
requires a unanimous resolution for the alienation of common property, was
not complied with. Similarly, the first respondent , who was the chairperson of
the Body Corporate at the time , had a fiduciary duty to act in the interests of
the applicant.
[47] In those circumstances, a punitive costs order is warranted.
Order
[48] Accordingly, I make the following order:
a. The first respondent is ordered to sign all the necessary documents
required for the purposes of registering the transfer of the property
described as Unit 9 in the building known as C[...] H[...], the floor area of
which section according to the sectional plan No. SS /1994 is 135 square
metres, together with Room R […] , Room R […] and Parking P […] C[...]
H[...], situated in Killarney Township, to the applicant within 10 days of
receipt of such documents from the applicant or its conveyancers.
b. Should the first respondent fail to sign the documents necessary to effect
transfer of the property to the applicant, the Sheriff of this court is
authorised to sign the documents on behalf of the first respondent.
c. The applicant is directed to pay to the first respondent an amount of R 868
565.20 (eight hundred and sixty -eight thousand, five hundred and sixty -
five rand and twenty cents) in respect of the purchase price.
d. The first respondent is liable for all costs associated with the registration
of transfer of the property described as Unit […] in the building known as
C[...] H[...], the floor area of which section according to the sectional plan
No. SS /1994 is 135 square metres, together with Room R […] , Room
R[…] and Parking P […] C[...] H[...], situated in Killarney Township, i n the
name of the applicant.
e. The first and fourth respondents are ordered to pay the costs of this
application, inclusive of costs of counsel on an attorney-and-client scale,
jointly and severally, the one paying, the other to be absolved, with the
fourth respondent liable for such costs de bonis propriis.
f. This order shall be forwarded to the LPC for an investigation into the
fourth respondent’s conduct in transferring the property without complying
with the requisite provisions of the Sectional Titles Schemes M anagement
Act.
S MFENYANA
Judge of the High Court
Date heard: 4 November 2025
Date of judgment: 25 February 2026
This judgment was handed down electronically by circulation to the parties’
representatives by email and by uploading the judgment on Caselines. The date of
handing down the judgment is deemed to be 25 February 2026.
Appearances:
For the applicant:
Counsel: R Andrews
Instructed by: Hajibey Bhyat Mayet & Stein Inc
For the first and fourth respondents:
Counsel: R Bosman
Instructed by: Fairbridges Wertheim Becker Attorneys