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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGEMENT
Reportable/Not Reportable
Case No: 2025-170057
In the matter between:
REGINALD NORMAN FREDERICKS APPLICANT
And
LAUREN LEE FREDERICKS FIRST RESPONDENT
THE REGISTRAR OF DEEDS, CAPE TOWN SECOND RESPONDENT
Neutral citation: Fredericks v Fredericks and Another (Case no 2025 -
170057) [2026] ZAWCHC (19 June 2026)
Coram: Yake AJ
Heard: 19 May 2026
Delivered: Electronically on 19 June 2026
Summary: Sale Agreement not perfected – applicant entitled to cancel the
agreement– first respondent failed to comply with Rule 41A (2) (b) of the
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Uniform Rules - no dispute of facts existed warranting ventilation at trial.
ORDER
1. In the result, I make the following order:
a) The first respondent’s points in limine are dismissed.
b) The Deed of Sale concluded between the applicant and the first
respondent on 15 February 2022 for the sale of the immovable property
situated at 3 […] A[…] Road, C[ …] , Cape Town (‘the property’) is
hereby cancelled.
(c) The transfer of the property which was effected by the second
respondent on 18 May 2022 is set aside.
(d) The second respondent is ordered to facilitate the transfer of the
property into the name of the applicant, being the previous title holder,
subject to the same terms and conditions of the title as existed
immediately prior to the transfer of the property to the first respondent.
(e) The firm Ashersons Attorneys is hereby appointed as the attorneys to
attend to and facilitate the transfer of the property to the applicant from
the first respondent.
(f) The first respondent is ordered to sign all documents and take
whatever steps necessary to give effect to (d) above, failing which the
sheriff of the Court or his lawful deputy is authorised and directed to sign
any such documents as are required to effect transfer of the property to
the applicant as contemplated in (d) above.
(g) The first respondent is ordered to pay costs consequent upon transfer
of the property to the applicant.
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(h) The first respondent is ordered to pay costs of the application,
including costs of counsel, on scale B.
JUDGMENT
YAKE AJ:
Introduction
[1] This matter arises from the alleged breach of a written deed of sale
agreement (“the agreement”) concluded between the applicant and the first
respondent on 15 February 2022. In terms of the agreement , the applicant
undertook to sell his immovable property situated at 3[ …] A[…] Road, C[…] ,
Cape Town (“the property”) to the first respondent for the purchase price of
R650 000. The agreement expressly provided that the first respondent would
pay the stipulated purchase price upon registration of transfer of the property
into her name.
[2] On 18 May 2022, the deed of transfer was registered in the name of the
first respondent. The applicant alleges that notwithstanding such registration,
the first respondent failed to effect payment of the agreed purchase price ,
thereby committing a breach of the agreement . Consequently, upon the first
respondent’s breach, the applicant elected to cancel the agreement and instituted
the present application . In doing so, the applicant in his notice of motion seek s
relief in the following terms:
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‘(a) That the Deed of Sale concluded between the applicant and the first respondent
on 15 February 2022 for the sale of the immovable property situated at 3[ …] A[… ]
Road, C[…] , Cape Town is cancelled.
(b) In the alternative, that it is declared that the Deed of Sale concluded between the
applicant and the first respondent on 15 February 2022 for the sale of the property
was induced by fraud and is null and void.
(c) That the transfer of the property which was effected by the second respondent on
18 May 2022 is set aside.
(d) That the second respondent is ordered to facilitate the transfer of the property into
the name of the applicant, being the previous title holder, subject to the same terms
and conditions of the title as existed immediately prior to the transfer of the property
to the first respondent.
(e) That the firm Ashersons Attorneys be hereby appointed as the attorneys to attend
to and facilitate the transfer of the property to the applicant from the first respondent.
(f) That the first respondent is ordered to sign all documents and take whatever steps
necessary to give effect to (d) above, failing which the sheriff of the Court or his
lawful deputy is authorised and directed to sign any such documents as are required to
effect transfer of the property to the applicant as contemplated in (d) above.
(f) That the first respondent is ordered to pay costs consequent upon transfer of the
property to the applicant.
(g) That the respondent is ordered to pay costs of the application, including costs of
counsel, on scale B.’
[3] The application is opposed by the first respondent. In her answering
affidavit, she raised three points in limine, namely: (a) that a material dispute of
fact exists which renders the matter unsuitable for determination on papers ; (b)
that the applicant failed to exhaust the provisions of Rule 41A relating to
mandatory consideration of mediation; and (c) that the applicant lacks the
mandatory consideration of mediation; and (c) that the applicant lacks the
requisite locus standi in iudicio to institute these proceedings.
[4] In the result, the court is enjoined to determine the following issues:
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(a) whether the applicant has the necessary locus standi to institute the
proceedings;
(b) should locus standi be established, whether t he applicant was entitled
to bring this application without first exhausting the remedy contemplated
in Rule 41A; and
(c) whether a material dispute of fact exists which cannot be resolved on
papers and which by its nature, requires ventilation at trial.
Factual background
[5] The factual background is largely common cause between the parties and
may be succinctly set out as follows. The applicant and the first respondent are
father and daughter. The applicant, a 77- year-old pensioner, was at all material
times the sole registered owner of the immovable property in question. On 15
February 2022, the applicant and the first respondent concluded a deed of sale
agreement in terms of which the applicant undertook to sell his property to first
the respondent . The agreed purchase p rice in terms of the agreement was
R650 000. The agreement further provided that transfer of the property would
be effected only upon payment of the purchase price, with the applicant
reserving the right to cancel the agreement in the event of any breach of its
terms.
[6] The applicant avers that , at that stage; he had no intention of alienating
the property. The first respondent, however, disputes this and contends that the
applicant intended to transfer ownership of the property to her, motivated by his
fear of being taken advantage of by his sons . Subsequent to the sign ing of the
agreement by the parties , the applicant further signed a power of attorney
authorising the transfer of the property.
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[7] It is alleged that the first respondent failed to disc harge her obligation to
pay the purchase price. Notwithstanding such failure, on 18 May 2022, the
conveyancing attorney, Mr Maart, proceeded to effect transfer of the property
into the first respondent’s name and the purchase price reflected in the deed of
transfer was R650 000.
[8] As a result of the first respondent’s breach, on 17 June 2025, the
applicant’s attorneys caused a letter of cancellation of the agreement to be
served to the first respondent’s attorneys. Mr Maart, who also serves as the
attorney of record in these proceedings, responded by advising that no purchase
price had been paid to them, noting further that the transaction was regarded as
a private arrangement between father and daughter. It is on this basis that the
matter now serves before this Court for adjudication.
Points in limine
[9] Before engaging with the substantive merits of the application, the Court
is required to determine the preliminary points raised by the first respondent.
Each of these objections must be considered in turn, mindful that the upholding
of any one of them may have the effect of disposing of the matter without
recourse to the merits. The first issue to be addressed is that of locus standi.
Should the applicant be found not to possess the requisite locus standi to
institute these proceedings, the application would have been improperly brought
before the Court and must fail at the threshold.
Locus standi
[10] It is trite that he who has a right to sue in an action is said to have locus
standi therein, and vice versa . The general rule is that the party instituting
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proceedings bears the onus to allege and prove locus standi. 1 The requirements
for locus standi are well established: the applicant must demonstrate an
adequate interest in the subject matter of the litigation, usually described as a
direct interest in the relief sought. That interest must not be too remote; it must
be actual rather than abstract or academic; and it must be current, not
hypothetical.2 Accordingly, locus standi is not merely a procedural formality
but a substantive enquiry directed at the sufficiency of a litigant’s interest in the
proceedings.3 The sufficiency of such interest depends upon the particular facts
of each case. 4 The real enquiry being whether the events complained of
constitute a wrong against the litigant, thereby conferring upon him a legally
cognisable interest in the relief sought.5
[11] In Amlers Precedents of Pleadings LexisNexis LTC Harms, 10 ed at 250
the following is said regarding locus standi:
‘The question of locus standi is in a sense procedural, but it is also a matter of substance. It
concerns the sufficiency and directness of a person’s interest in the litigation to be accepted
as a litigating party. It is also related to the capacity of a person to conclude a jural act.
Sufficiency of interest depends on the facts of each case and there are no fixed rules.’6
[12] The respondent has squarely placed the applicant’s locus standi in
dispute. Where such standing is challenged, it must be dealt with on the
assumption that all allegations of fact relied upon by the party whose locus
1 Mars Incorporated v Candy World (Pty) Ltd [1990] ZASCA 149; 1991 (1) SA 567 (A) at 575H; Kommissaris
van Binnelandse Inkomste v Van der Heever 1999 (3) SA 1051 (SCA) at 1057G–H.
2 Four Wheel Drive CC v Leshni Rattan NO (1048/17) [2018] ZASCA 124 para 7; D E van Loggerenberg and
E Bertelsmann Erasmus: Superior Court Practice 2 ed vol 1 (loose-leaf) at D1-186.
E Bertelsmann Erasmus: Superior Court Practice 2 ed vol 1 (loose-leaf) at D1-186.
3 Wessels en Andere v Sinodale Kerkkantoor Kommissie van die Nederduitse Gereformeerde Kerk, OVS 1978
(3) SA 716 (A) at 725H; Cabinet of the Transitional Government for the Territory of South West Africa v
Eins 1988 (3) SA 369 11 (A) at 388B-E.
4 Jacobs en 'n Ander v Waks en Andere [1991] ZASCA 152; 1992 (1) SA 521 (A) at 534D); Gross and Others v
Pentz 1996 (4) SA 617 (A) 632 B-D.
5 Muller v De Wet NO & Others 2001(2) SA 489 (W).
6 Harms LTC Amlers Precedents of Pleadings 10 ed (2024) at 250.
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standi is attacked are true.7 The test being whether the applicant has a direct and
personal interest in the litigation sufficient to render the matter ‘ his cause’.8 It
must accordingly appear ex facie the founding papers that the applicant
possesses the necessary locus standi in iuducio.9
[13] This principle ensures that the issue of locus standi is determined as a
threshold matter, without premature engagement with the merits of the dispute.
The enquiry is confined to whether, accepting the applicant’s factual averments
at face value, he demonstrated a direct and personal interest sufficient to sustain
standing.
[14] If such interest is established ex facie the founding papers, the applicant is
entitled to have the matter adjudicated. Conversely, if the papers disclose no
adequate, current, and legally protectable interest, the objection must succeed.
This approach underscores that locus standi at this stage is not a matter of
evidentiary proof, but rather of legal sufficiency: whether the facts alleged, if
true, confer upon the applicant the right to invoke the Court’s jurisdiction.
Submission by parties
[15] Mr Kies, c ounsel for the first respondent, contends that the applicant
suffers from dementia and, as a result, lacks the necessary understanding of the
consequences of these proceedings. On this basis, counsel submits that a curator
bonis ought to be appointed by this Court to assist the applicant in managing his
financial affairs. Reliance is placed on referral letters annexed to the answering
affidavit, marked LLF3 and LLF4 both dated 15 April 2024. From these
7 Kuter v SA Pharmacy Board 1953 (2) SA 307 (T) at 313; Letseng Diamonds Limited v JCI Limited and
Others [2007] ZAGPHC 119 para 13
8 per Searle, JP in Rescue Committee, DRC v Martheze 1929 CPD 300.
9 Mars Inc v Candy World (Pty) Ltd 1991 (1) SA 567 (A) p. 575; Kommissaris van Binnelandse Inkomste v Van
der Heever [1999] 3 All SA 115 (A), 1999 (3) SA 1051 (SCA) para. 10”.
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documents, it appears that the first respondent approached Dr Bosman on
suspicion that the applicant may be suffering from dementia, citing behavioural
changes. Dr Bosman, in turn, referred the applicant to MD Inc for further
assessment.
[16] The provisional diagnosis recorded at the Emergency Centre of MD was
‘dementia decline baseline’, with no follow-up date provided. It is further noted
that the applicant was scheduled to attend a psychiatric assessment at MPDH
‘the coming Tuesday’ but failed to do so. Based on the information furnished by
the first respondent, the medical practitioner suspected that the applicant was
developing dementia.
[17] Counsel submitted further letters authored by Dr Zirkia Joubert, a
specialist physician, annexed to the first respondent’s papers and marked LLF5
and LLF6 respectively. In the latter, Dr Joubert recorded that the first
respondent had informed him that the applicant was diagnosed with dementia,
making reference to the earlier referral letter LLF4. On the strength of these
letters, counsel maintains that the applicant lacks the necessary understanding of
the present proceedings. On this basis, c ounsel asserts that the first respondent
undertook to continue caring for the applicant, whilst the applicant enjoys the
fruits of the property in accordance with what she describes as his initial
request.
[18] Mr Prinsloo, counsel for the applicant, denied that the applicant has been
diagnosed with dementia. In support of this denial, he relies upon the report of
Dr Fortuin, a specialist psychiatrist, annexed to the applicant’s papers and
marked RA1. Dr Fortuin assessed the applicant on 2 April 2025 and recorded
that the applicant has no history of mental illness. The d octor’s assessment
further confirms that the applicant’s cognition is intact, with no clinical signs of
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Alzheimer’s disease. This evidence directly rebuts the first respondent’s
contention that the applicant lacks the necessary understanding of the
proceedings. It demonstrates that he remains capable of managing his own
affairs and of prosecuting this application.
Discussion
[19] Save for Dr Joubert recording that he had been informed by the first
respondent that the applicant was diagnosed with dementia, there is no finding
made by him, in his personal capacity as a medical practitioner, that the
applicant indeed suffers from such condition. Similarly, the attending doctors at
the Emergency Centre furnished no conclusive report indicating that the
applicant has dementia. No follow -up date was provided to the applicant, and,
as with Dr Joubert, the referral by Dr Bosman was pre mised upon information
supplied by the first respondent rather than upon independent clinical findings.
[20] The alleged dementia upon which the first respondent seeks to rely on was
not independently diagnosed by any of the doctors concerned. On the contrary,
the evidence demonstrates that it was the first respondent herself who conveyed
her suspicions, which proved unfounded. In the absence of any definitive
medical diagnosis, the first respondent’s reliance on these referrals cannot, in
law, displace the applicant’s standing.
[21] The applicant, by contrast, has placed before the Court conclusive
evidence in the form of the specialist psychiatric report of Dr Fortuin. That
report expressly rules out any possibility of dementia, recording that the
applicant’s cognition is intact and that he has no history of mental illness. The
first respondent has tendered no evidence capable of contradicting or displacing
this assessment. In the absence of any material evidence to gainsay Dr Fortuin’s
findings, I am unable to find that the applicant lacks the requisite understanding
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of the proceedings. The first respondent’s reliance upon an alleged diagnosis of
dementia is accordingly without foundation.
[22] The threshold enquiry remains whether, on the facts alleged in the
founding papers, the applicant discloses a direct and personal interest sufficient
to sustain locus standi . In my view, the applicant has succeeded in
demonstrating such interest by virtue of his ownership of the property. Mere
conjecture of hearsay-based medical references, unsupported by conclusive
clinical findings, fall short of establishing legal incapacity. The first
respondent’s reliance upon an alleged diagnosis of dementia is accordingly
untenable and cannot avail her in displacing the applicant’s standing.
Accordingly, the point in limine premised upon lack of locus standi falls to be
dismissed.
[23] Having established that the applicant does indeed possess the necessary
locus standi to institute these proceedings, the enquiry must now advance to the
next threshold issue. That is whether it was incumbent upon the applicant, as a
matter of procedural necessity, to first exhaust the mediation process
contemplated in Rule 41A of the Uniform Rules before approaching this Court
for relief.
Rule 41A
[24] Rule 41A of the Uniform Rules of Court came into operation on 9 March
2020. Its underlying objective is to render it mandatory for litigating parties to
consider mediation at the inception of proceedings. The Rule imposes upon
litigants a procedural obligation to consider mediation as an alternative dispute
resolution mechanism at the earliest stage of litigation, thereby seeking to
curtail protracted and costly litigation adversarial processes. The emphasis is
not upon compelling parties to submit to mediation, but rather upon ensuring
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that each litigant formally records a considered position on whether mediation
should be pursued. Rule 41A (1) provides as follows:
‘a voluntary process entered into by agreement between the parties to a dispute , in which an
impartial and independent person, the mediator, assists the parties to either resolve the
dispute between them, or identify issues upon which agreement can be reached, or explore
areas of compromise, or generate options to resolve the dispute, or clarify priorities, by
facilitating discussions between the parties and assisting them in their negotiations to resolve
the dispute.’ (my emphasis)
[25] The general rule requires that every action or application be accompanied
by a Rule 41A notice. It is therefore mandatory for the applicant, when serving
an application, to deliver a notice in terms of Rule 41A(2)(a) , indicating
whether he agrees to or opposes referral of the matter to mediation. A
corresponding obligation rests upon the first respondent, who must, before filing
opposing papers, deliver a notice in terms of Rule 41A(2)(b) setting out her
stance on mediation.
[26] It must be emphasised that Rule 41A does not compel any party to submit
to mediation. Nor does it prescribe any sanction for non- compliance.
Nonetheless, the court retains its inherent jurisdiction to postpone proceedings
and direct the parties to consider mediation where such intervention would
serve the interests of justice.
Discussion
[27] It is common cause that, in the present matter, the applicant duly
delivered his notice in terms of Rule 41A(2)(a), expressly opposing referral of
the dispute to mediation. This compliance demonstrates adherence to the
mandatory procedural requirement imposed upon him at the commencement of
proceedings. By contrast, no notice was delivered by the first respondent in
terms of Rule 41A(2)(b) indicating her willingness to mediate. The first
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respondent’s omission accordingly constitutes a failure to discharge her
corresponding obligation under Rule 41A(2)(b).
[28] Unlike the applicant, who duly complied with Rule 41A(2)(a) and made
his intention known by opposing referral of the matter to mediation, the same
cannot be said of the first respondent. She failed to comply with her obligation
under Rule 41A(2)(b) yet seeks the assistance of this Court. Had the first
respondent genuinely wished to resolve the matter through mediation, she could
have taken the necessary procedural steps to do so. She cannot belatedly seek to
shift responsibility onto the applicant, nor rely upon the resolution of other
unrelated disputes between the parties ; such as her sexual preference or the
return of her sibling to the property. These are peripheral matters which bear no
relevance to the present application.
[29] The first respondent’s reliance on the applicant not exhausting mediation
under Rule 41A(2)(a) cannot be sustained. Rule 41A imposes a procedural duty
upon litigants to indicate their stance on mediation, but it does not compel
parties to submit thereto. Mediation remains a voluntary process, and the
applicant’s compliance with Rule 41A(2)(a) stands in contrast to the first
respondent’s failure to deliver the requisite notice under Rule 41A(2)(b) . In my
considered view, the point in limine premised upon the applicant’s alleged
failure to exhaust mediation is misplaced. It is devoid of merit and accordingly
falls to be dismissed.
Material Dispute of fact
[30] The principles applicable to the determination of facts where disputes
arise in motion proceedings were authoritatively set out in Plascon -Evans
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Paints Ltd v Van Riebeeck Paints (Pty) Ltd .10 The rule is that final relief may be
granted in application proceedings only if the facts as stated by the first
respondent, together with those facts put forward by the applicant which are
admitted by the first respondent, justify the relief sought.
[31] This principle is subject to the qualification that where the first
respondent’s denial of the applicant’s allegations does not raise a real, genuine,
or bona fide dispute of fact, the Court is entitled to reject such denial and
determine the matter on the papers. Put differently, a bare denial of the
applicant’s material averments, or the raising of fictitious or insubstantial
disputes, cannot suffice to defeat an application. A pragmatic and common -
sense evaluation of the affidavits is required, with due regard to whether the
first respondent’s denials genuinely raise a real, bona fide dispute of fact. The
Court must therefore assess the verisimilitude of the respondent’s version, and
whether it demonstrates serious and unambiguous engagement with the
applicant’s allegations.
[32] It is therefore incumbent upon the Court to adopt a robust and pragmatic
approach when confronted with disputes of fact in motion proceedings. Were it
otherwise, the effective functioning of the Court could be hamstrung and
circumvented by the most simple and blatant stratagems. The Court must not
hesitate to decide an issue of fact on affidavit merely because such
determination may prove difficult. The rationale underlying this approach is that
motion proceedings are designed to resolve legal issues on common cause facts,
not to adjudicate contested factual disputes. Where a material dispute of fact is
reasonably foreseeable, the matter ought properly to be pursued by way of
action proceedings, thereby permitting oral evidence and cross-examination to
ventilate the issues fully.
10Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) and
Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at 235 – G.
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[33] In the present matter, the application is founded upon a deed of sale
agreement. This is supported by annexure FA2, duly signed by both parties. The
salient terms of the agreement may be summarised as follows:
(a) The first respondent undertook to purchase the property for the sum of
R650 000.
(b) No deposit was payable.
(c) The balance of the purchase price was to be paid upon registration of
transfer into the first respondent’s name.
(d) In the event of the first respondent failing to fulfil , on the due date,
any of the terms and conditions of the deed of sale, the applicant or his
agent would be entitled either to cancel the sale by registered letter
addressed to the first respondent, or to claim immediate payment of the
whole purchase price.
[34] Both parties do not dispute the terms embodied in the sale agreement.
Pursuant thereto, the property was transferred and registered at the Deeds
Office. The deed of transfer records that Mr Maart informed the Registrar of
Deeds (“second respondent ”) that the property was sold by private treaty,
subject to the reservation of a life usufruct in favour of the applicant. Once more
this was not placed in dispute by the first respondent.
[35] What the first respondent appears to dispute is her obligation to pay the
purchase price. According to her, she was not required to make any payment,
contending instead that the amount stipulated in the sale agreement was in lieu
of her undertaking to care for the applicant. This contention stands in direct
contrast to the correspondence of her attorney, Mr Maart, annexed as FA8 in the
record. In that letter, Mr Maart expressly recorded that it was the applicant’s
intention to sell the property to the first respondent, subject to the reservation of
a life usufruct in favour of the applicant. The respondent’s contention stands in
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direct contrast to th e correspondence of Mr Maart . In that letter, Mr Maart
expressly recorded that it was the applicant’s intention to sell the property to the
first respondent, subject to the reservation of a life usufruct in favour of the
applicant. Notably, Mr Maart made no mention of there being no sale of
property, nor of the purchase price being substituted by a caregiving
arrangement. On the contrary, his correspondence confirms the very
representation made to the Deeds Office upon registration of t ransfer. The deed
of transfer itself reflects that the property was sold by private treaty. In my
view, this reduces the matter to a single decisive issue: which is, the applicant
never intended to transfer the property to the first respondent free of charge.
[36] Upon careful consideration of the affidavits and the submissions
advanced by both counsel, I am satisfied that there exists no genuine dispute of
fact which necessitates referral to oral evidence or trial. The terms of the
agreement upon which the application is founded are common cause and
undisputed. The issues raised by the first respondent, such as the applicant’s
alleged disapproval of her same- sex relationship or the return of her brother to
the property, a re in my view peripheral matters. They bear no relevance to the
operative terms of the agreement and do not create a material dispute requiring
ventilation at trial. It is my considered view that the Plascon Evans Rule finds
no application is this matter. In the result, the point in limine premised upon the
existence of a dispute of fact is without merit and falls to be dismissed. With all
three preliminary objections having been disposed of, the Court now turns to the
merits of the case for consideration.
Has the applicant established a proper case on merits
[37] The applicant’s counsel contends that the agreement was never perfected
and was accordingly validly cancelled. He points out that the agreement
and was accordingly validly cancelled. He points out that the agreement
expressly stipulated that the purchase price would be paid upon registration of
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transfer of the property, which did not occur. On this basis, he asserts that t he
applicant was entitled to exercise his contractual right of cancellation, which he
duly did.
[38] Counsel further avers that the power of attorney records the property as
having been sold for the stipulated purchase price. This very document was
relied upon by the second respondent in effecting transfer. Counsel submits that
such reliance renders the transfer defective, as ownership cannot validly pass in
the absence of payment of the purchase price. In the result, counsel maintains
that a proper case has been made out for the relief sought.
[39] The first respondent’s counsel does not dispute that no payment of the
purchase price was made. He argued that the first respondent’s case, is premised
upon the fact that the property was registered in the first respondent’s name
pursuant to the applicant’s own volition, motivated by his apprehension of being
taken advantage of by his sons. Counsel submits that the applicant’s subsequent
change of mind, after a period of three years following registration, would
operate to his own detriment and undermine his security. On that basis, counsel
contends that the application ought to be dismissed.
[40] It is indeed unfortunate that this dispute arises within the context of
family relations, for courts have consistently emphasised that such conflicts are
best resolved outside of litigation, so as to avoid further strain upon familial
bonds. The first respondent seeks to present to this Court that her reluctance to
transfer the property back to the applicant is motivated by concern for his
protection and safety. Regrettable, notwithstanding the first respondent’s
professed concern for the applicant’s welfare, she has nonetheless drawn him
into litigation, fully aware of his advanced age. This conduct, in my view,
reveals a pursuit of self-interest under the guise of protection. The first
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respondent has gone so far as to depict the applicant as suffering from dementia
and incapable of managing his financial affairs, while simultaneously failing to
discharge her obligation to pay the agreed purchase price. Her stance amounts
to an attempt to retain property that does not lawfully belong to her, cloaked in
the rhetoric of care and concern.
[41] The Older Persons Act 11, as amended, was enacted precisely to guard
against circumstances such as th ese presented in the instant matter. The Act
seeks to establish robust mechanisms to protect vulnerable older individuals
from property dispossession, familial pressure, and financial abuse. In
particular, the legislature has expressly guaranteed older persons the right to
protection against abuse relating to property, land rights, and inheritance, as
envisaged in sections 7B, 25, and 30 of the Act. Section 5(2)(a) is of especial
significance, affirming the right of older persons to protection in respect of their
property. This provision underscores the imperative that courts must act as
vigilant guardians of the statutory and constitutional rights of older persons,
ensuring that their dignity and autonomy are not eroded by exploitative
arrangements or inequitable conduct.
[42] The applicant, a 77-year-old pensioner, falls squarely within the
protective ambit of these provisions. He is entitled to the full benefit of the
statutory safeguards, and it is incumbent upon this Court to give effect to them.
In doing so, the Court not only enforces the letter of the Act but also advances
its spirit, which is to secure the well-being, safety, and rights of the older
persons such as the applicant, against precisely the forms of abuse alleged in the
present dispute.
[43] The first respondent is fully aware that she never paid the purchase price
as stipulated in the deed of sale. In terms of the agreement, failure to pay
11 Older Persons Act 13 of 2006 as amended
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entitled the applicant to cancel the agreement. The fact that the applicant elected
to approach the Court three years after registration does not detract from the
validity of his claim, nor does it extinguish the first respondent contractual
obligations. In my considered view, the applicant has established a proper case
for the relief sought. He has demonstrated breach of agreement by the first
respondent and has validly exercised his right of cancellation. Accordingly, I
find that he is entitled to the relief sought.
Costs
[44] As regards the question of costs, this application falls within the category
of matters that may properly be regarded as frivolous and an abuse of the
Court’s process. The first respondent was fully aware that she had no defence to
the applicant’s claim , yet she elected to oppose the matter . Her conduct
demonstrates a deliberate attempt to delay the re -transfer of the property to the
applicant, notwithstanding her knowledge of the contractual breach.
[45] In these circumstances, an ordinary costs order would not suffice to mark
the Court’s disapproval of such conduct. A punitive order is warranted both to
compensate the applicant for the unnecessary expense incurred and to deter
litigants from abusing the process of Court by advancing applications devoid of
merit. I accordingly find that the only fitting order is one on the attorney and
client scale. The respondent will therefore be ordered to pay the applicant’s
costs of this application on such punitive scale.
Order
[46] In the result, I make the following order:
a) The first respondent’s points in limine are dismissed.
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b) The Deed of Sale concluded between the applicant and the first
respondent on 15 February 2022 for the sale of the immovable property
situated at 3[…] A[…] Road, C[…] , Cape Town is hereby cancelled.
(c) The transfer of the property which was effected by the second
respondent on 18 May 2022 is set aside.
(d) The second respondent is ordered to facilitate the transfer of the
property into the name of the applicant, being the previous title holder,
subject to the same terms and conditions of the title as existed
immediately prior to the transfer of the property to the first respondent.
(e) The firm Ashersons Attorneys be hereby appointed as the attorneys to
attend to and facilitate the transfer of the property to the applicant from
the first respondent.
(f) The first respondent is ordered to sign all documents and take
whatever steps necessary to give effect to (d) above, failing which the
sheriff of the Court or his lawful deputy is authorised and directed to sign
any such documents as are required to effect transfer of the property to
the applicant as contemplated in (d) above.
(g) The first respondent is ordered to pay costs consequent upon transfer
of the property to the applicant.
(h) The first respondent is ordered to pay costs of the application,
including costs of counsel, on scale B.
____________________________________
S YAKE
ACTING JUDGE OF THE HIGH COURT
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Appearances
For the Applicant: Adv. B. Prinsloo
Instructed by: Ashersons Attorneys
For the Respondents: Adv. R. Kies
Instructed by: L. Maart Attorneys