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[2013] ZAWCHC 80
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Chen v Duarte and Others (20276/12) [2013] ZAWCHC 80 (28 May 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE
TOWN)
Case
No
20276
/12
In the matter between:
CHAO-CHEN CHEN
...........................................................................
Applicant
and
KELLY-ANNE DUARTE
........................................................
First
Respondent
REGISTRAR
OF DEEDS
....................................................
Second
Respondent
SHIREEN AHMED-KAGEE
.................................................
Third
Respondent
GABRIEL GIDEON CILLIE
...............................................
Fourth
Respondent
NADIA MOERAT
....................................................................
Fifth
Respondent
SHIREEN SITY
.......................................................................
Sixth
Respondent
NATASHA CHANG
............................................................
Seventh
Respondent
CHANGCHUAN LIN
............................................................
Eighth
Respondent
Court:
Griesel J
Heard:
27 May 2013
Delivered:
28 May 2013
____________________________________________________________________
JUDGMENT
____________________________________________________________________
Griesel J:
[1]
This is a rather unusual application in which it is sought to cancel
and set aside the registration of transfer of the immovable
property,
erf 6020 Constantia, situated at 7 Wittebomen Road, Constantia (‘the
property’), that was effected by the
second respondent, the
Registrar of Deeds, to the first respondent, Mrs Kelly-Anne Duarte,
on 7 September 2011.
[2]
The applicant is Mr Chao-Chen Chen, a Taiwanese national, who was
born on 15 August 1962. It is common cause that on 20 June
2011 the
first respondent, as purchaser, entered into a deed of sale in
respect of the property at a purchase price of R2,2m. In
the deed of
sale the seller is described as ‘
Chen Chao-Chen
’
(‘Chao Chen’).
1
[3]
The applicant’s case is that the sale and transfer of the
property was effected pursuant to an elaborate fraud perpetrated
by
someone unknown to him, who used the name mentioned above and
signed such name on the deed of sale and power of attorney
without
his knowledge or consent in order to pass transfer to the first
respondent.
[4]
The sale was brokered by the sixth respondent, while the third,
fourth and fifth respondents are conveyancers who attended to
various
stages of the transfer. The seventh and eighth respondent received
the proceeds of the purported sale, but both appear
in the interim to
have absconded. The first respondent is opposing the application, but
no relief is claimed herein against any
of the other respondents, all
of whom abide the court’s decision.
[5]
The first respondent stated that she is not in a position to admit or
deny the bulk of the allegations made herein by the applicant.
She
accordingly required the applicant to prove the allegations made by
him and, to this end, asked that the matter be referred
for oral
evidence on the following issues:
(a)
whether or not the applicant was the registered owner of the property
when transfer thereof was effected by the Registrar of
Deeds to the
first respondent; and
(b)
if so, whether the said transfer was effected with the authority or
consent of the applicant.
[6]
An order in these terms was duly granted by agreement between the
applicant and the first respondent and I accordingly heard
the oral
evidence of the applicant and various other witnesses on his behalf.
Ad (a)
:
[7]
In his evidence, the applicant testified that he became the lawful
owner of the property in question when it was transferred
to him on 6
June 1990 in terms of Deed of Transfer No T31790/90 and that he
remained so until the property was transferred to the
first
respondent on 7 September 2011.
[8]
In support of this claim, the applicant testified that he is the
person referred to in the deed of transfer referred to above.
His
name, personal details (date of birth, marital status, etc) and
appearance correspond with the photocopy of his passport appearing
in
the papers. He also signed the power of attorney that was required to
register a mortgage bond over the property in 1992.
[9]
In addition, evidence was adduced of how the property was
administered on his behalf by his attorneys and other appointed
representatives
since the time he left South Africa for Taiwan around
1995/1996. The first respondent’s husband, who was the only
witness
called on behalf of the respondents, confirmed that he had
seen the applicant living in the house before the latter’s
departure
in the mid-90s, after which the house in question became
‘derelict’ and an ‘eyesore’, as he put it.
[10]
On the evidence as a whole, therefore, it is clear on an overwhelming
balance of probability that the applicant was indeed
the registered
owner of the property when transfer thereof was effected to the first
respondent in 2011.
Ad (b)
:
[11]
As for the second issue, the applicant emphatically denied that he
had ever authorised the sale or transfer of the property.
He also
denied having signed the deed of sale and the power of attorney that
was relied on to effect the transfer.
[12]
The applicant’s evidence in this regard is supported by the
facts (a) that Chao Chen appears to have made use of
a forged
passport in order to persuade the relevant authorities that he was
the person entitled to pass transfer of the property;
(b) that
the photograph on the passport of Chao Chen is manifestly not a
photograph of the applicant; (c) that the signature
on the deed
of sale and power of attorney has been forged; (d) that the
marital status of the seller on the power of attorney
does not
correspond with that of the applicant; and (e) that the
purported ‘seller’ as well as the recipients
of the
proceeds of the sale appear to have vanished since finalisation of
the transaction.
[13]
Regarding the various signatures, the applicant presented expert
evidence by a handwriting expert, Ms Palm, who compared the
genuine
and purported signatures of the applicant and who persuasively
demonstrated the dissimilarities between the genuine
and the
disputed signatures.
[14]
The court is accordingly left with only two alternative hypotheses:
either the applicant was an innocent victim of a fraudulent
scam
resulting from the forgery of his signature; or he was somehow
complicit in a plot to transfer the property. While there is
ample
support for the first hypothesis, there is none whatsoever in support
of the second one, nor was this even suggested to the
applicant
during cross-examination (although this possibility was hinted at,
albeit somewhat tentatively, in the first respondent’s
answering affidavit).
[15]
Having considered the evidence as a whole, I am left in no doubt
whatsoever that the applicant was not party to the whole
scam. I
accordingly find on a balance of probability that the applicant’s
signature had been forged and that this enabled
the perpetrator(s) to
effect transfer of the property to the first respondent. It is a
trite principle of our law that a non-owner
cannot transfer
ownership, except if granted authority by an owner.
2
The result is that the forged power of attorney to pass transfer
herein was ‘mere waste paper’, as it was put by Bristowe
J in
Kristal v Rowell
.
3
The subsequent deed of transfer issued in favour of the first
respondent therefore conferred no right or title of any sort upon
her
and it follows that the applicant is entitled to the relief claimed.
Costs
[16]
There was some argument before me as to the appropriate order as to
costs that should be granted in the circumstances. Mr
Donen
,
on behalf of the applicant, asked for an order for costs against the
first respondent in accordance with the general principle
that costs
should ordinarily follow the result. Mr
Walther
, on behalf of
the first respondent, argued that she was obliged, if she wants
to pursue her remedies against the ‘seller’
or the
conveyancer, to put up a
virilis defensio
against the
applicant’s action for eviction.
4
[17]
In my view, the argument advanced on behalf of the first respondent
is no ground for depriving the successful applicant of
his costs
herein. In any event, it would seem that the costs of a defence can
eventually be recovered from the seller (or other
guilty
party/parties) as part of the compensation claimed.
5
Order
[18]
In the circumstances, it is ordered as follows:
(a)
The registration of transfer to the first respondent of the
immovable property, Erf 6020 Constantia, situated at 7
Wittebomen
Road, Constantia, Western Cape, that was effected by the
second respondent on 7 September 2011, is declared to be of no
effect;
(b)
The second respondent is directed to cancel the aforementioned
transfer;
(c)
The first respondent and all those holding under her are forthwith
ejected from the aforementioned property;
(d)
The first respondent is ordered to pay the costs of the application,
including the reasonable travelling expenses of the
applicant and the
witness Robert Hsiang; the qualifying expenses of the expert witness,
Ms Yvette Palm; and the costs of the Chinese
interpreter.
B M Griesel
Judge of
the High Court
1
Chinese
names usually consist of three characters. The first character is
the family name (surname) and the other two characters
are the given
names. According to Wikipedia,
Chén
(
陈
/
陳
)
is perhaps the most common surname in Hong Kong and
Macau
,
where it is romanized as
Chan
,
and is also common in
Taiwan
,
where it is romanized as
Chen
.
See:
http://en.wikipedia.org/wiki/Chinesesurname
(accessed on 24/5/13). In this judgment, the ordinary Western
convention is followed of reflecting the given names before the
family name of the individuals in question.
2
Wille’s
Principles of South African Law
9ed p 521.
3
1904
TH 66
at 71.
4
See
eg 24
Lawsa
(2ed) para 91.
5
Lawsa,
loc cit.