N.Q v S.T.Q and Others (25064/2011) [2012] ZAWCHC 271 (6 June 2012)

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[2012] ZAWCHC 271
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N.Q v S.T.Q and Others (25064/2011) [2012] ZAWCHC 271 (6 June 2012)

Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE
TOWN)
Case no: 25064/2011
In the matter between:
N Q
............................................................................................................................
Applicant
(I.D. NUMBER: )
and
S T Q
(In
his personal capacity)
....................................................................
First
Respondent
(I.D. NUMBER: )
S T Q
.......................................................................................................
Second
Respondent
(in his representative capacity as
natural father and
guardian Of his
minor child
T Q
ID:
)
S T Q
...........................................................................................................
Third
Respondent
(In his representative capacity as
natural father and
guardian Of his
minor child,
L Q
ID:
)
THE REGISTRAR
OF DEEDS CAPE TOWN
............................................
Fourth
Respondent
THE MASTER OF
THE HIGH COURT, CAPE TOWN
..................................
Fifth
Respondent
Court
:
Acting Judge J I Cloete
Heard
:
22 May 2012
Delivered:
6 JUNE 2012
JUDGMENT
CLQETE
AJ
:
[1] The
applicant who is married in community of property to the first
respondent seeks certain declaratory relief relating to
the
ownership of an immovable property situated at erf 12961 Bellville
(“the property”).
The first respondent is the biological father and co­guardian of
the second and third respondents, both of whom are minors.
The
relief sought against the fourth respondent is consequential upon
the main relief. The fifth respondent is cited only by
virtue of any
interest which he may have in the matter.
[2] The first to third respondents
opposed the relief sought by the applicant until the eleventh hour
when it was conceded in
heads of argument filed on their behalf that
the applicant is entitled to the relief claimed, save for costs.
[3] The applicant persists with her
claim against the first respondent for costs on the scale as between
attorney and own client.
The only issues which thus remain to be
determined are whether the first respondent is liable for the
applicant’s costs
and if so, the scale upon which such costs
should be awarded.
[4] The facts which are common cause
or not seriously in dispute are as follows.
[5] The applicant and the first
respondent were married to each other on 19 March 2005 and are the
parents of a 6 year old child
who resides with the applicant at the
property.
[6] The marriage has irretrievably
broken down and the parties separated during February 2009
whereafter the applicant instituted
divorce proceedings which are
still pending. The property is one of the assets in the joint
estate.
[7] During early 2010 the applicant
discovered that on 18 June 2009 the first respondent had transferred
ownership of the property
to the second and third respondents. Upon
further investigation the following emerged:
1. On 20 March
2009 the first respondent “
sold”
the property to the second and third respondents for a purchase
price of R754 000 although the purchase price was never paid.
The
applicant says that she did not sign the deed of sale and claims
that the signature appearing thereon in the place above
where her
maiden name is reflected was forged, either by the first respondent
or by someone acting on his instructions. The applicant
also says
that she has never met Moyra de Lange, the person who signed the
deed of sale as the applicant’s “
witness”
and de Lange has subsequently confirmed to the applicant’s
attorney that she did not witness the applicant’s
"signature”
which the latter in any event claims does not even remotely resemble
her own.
2. The power of
attorney to pass transfer was not signed by the applicant, nor was
it signed in the presence of the conveyancer
who had been instructed
to attend to the transfer of the property or the two persons who
“
witnessed”
her signature. The applicant similarly alleges that the signature
appearing thereon is not her signature and that it was forged.
3. The
applicant’s
"Personal
Affidavit
which also required her
signature in the presence of a commissioner of oaths in order to
enable the transfer to proceed was not
signed by her, whether in the
presence of a commissioner of oaths or otherwise, and does not even
bear the signature or details
of a commissioner of oaths. In fact
the handwritten details which purport to be those of the
commissioner of oaths are those
of the applicant, but in her maiden
name.
4. The same
applies to the “
Affidavit by
Seller”
for purposes of
compliance with the
Financial Intelligence Centre Act No. 38 of
2001
. Again, the applicant claims that her signature on these
documents was forged.
5. The conveyancer who was instructed
to attend to the transfer admitted to the applicant’s attorney
that he never met the
applicant prior to the transfer of the
property and further that he had failed to even verify the
applicant’s identity,
thus forsaking his professional duty as
conveyancer.
[8] From the
affidavit of the conveyancer himself it appears that he was
presented with a different deed of sale on 16 April 2009
reflecting
a selling price for the property of R290 000. The relevant
documentation submitted to SARS in order to obtain a transfer
duty
receipt was rejected on the basis that the “
selling
price”
was substantially
lower than the fair market value of the property. He discussed the
matter with the estate agents involved and
suggested that the deed
of sale be amended to reflect a fair market value for the property
as a selling price. The “
selling
price”
was then “
amended”
to R754 000 and the “
amended”
deed of sale delivered to the conveyancer on 8 May 2009. It is
unclear how the deed of sale provided by the conveyancer to the

applicant’s attorney, although reflecting a price of R754 000,
is nonetheless dated 20 March 2009 and that the estate agent’s

commission was calculated, and paid, on the basis of a selling price
of R290 000.
[9] The firm of attorneys who employ
the conveyancer concerned tendered to pay the costs of the
application to be brought by the
applicant to set the transaction
aside, although no tender was made to repay the conveyancing fees
attendant upon the transfer.
The tender was made by the attorneys
prior to the launching of this application. This notwithstanding the
first respondent, both
in his personal capacity and on behalf of the
second and third respondents, opposed the application on what can
best be described
as spurious grounds, essentially claiming that the
transfer took place with the applicant’s consent. Notably the
first
respondent does not allege that any of the relevant documents
in fact bear the applicant's signature. He admits the contraventions

relating to the transfer by the conveyancer but simply passes the
blame to the latter. In addition the best that the first respondent

could proffer regarding signature of the various documents which
resulted in the transfer was that the applicant had apparently

signed these documents alone when not even he was in her presence.
[10] As pointed out by the
applicant’s counsel this makes no sense whatsoever. There is
no logical reason why the applicant,
in the face of imminent divorce
proceedings, would have consented to transfer 50% of an asset worth
R754 000, being the home
in which she lives with the parties’
minor child, to the minor children born of the first respondent’s
previous marriage,
and without receiving any payment therefor. The
overwhelming evidence (including the admissions made by the
conveyancer) indicates
exactly the contrary and I find that the
first respondent either forged the applicant’s signature or
that it was forged
by someone else on his instructions.
[11] In these circumstances there is
no question that the first respondent must pay the applicant’s
costs and that in addition
the amount paid by him from the joint
estate in respect of transfer costs and estate agent’s
commission totalling R48 915.73
must be deducted as a first charge
from such share of the joint estate as he may be awarded upon the
granting of a decree of
divorce.
[12] Further, this is exactly the
type of matter in which a punitive costs order is warranted. First,
the conduct of the first
respondent was reprehensible. Second, he
persisted in his opposition on the merits until the eleventh hour
and only conceded
them four days before the matter was argued.
Third, an award of party and party costs will not sufficiently
compensate the applicant
since she will nonetheless be out of pocket
for the attorney and own client portion of her legal costs. The
tender for costs
by the firm of attorneys is not relevant to the
first respondent’s blameworthy conduct towards the applicant
and the joint
estate.
[13]
I
n
the result I make the following
order:
1. The
immovable property situated at Erf 12961, Bellvilie
(“the
property”) is declared to be jointly owned by the applicant
and the first respondent.
2. Title
Deed no: T27919/2009 is hereby cancelled in accordance with
s 6(1)
of the
Deeds Registries Act 47 of 1937
{“the
Act”).
3. Title Deed no: T22340/2005 is
hereby revived and declared to be of full force and effect as if it
had never been cancelled
in accordance with
s 6(2)
of the Act, and
the fourth respondent is hereby directed to cancel the relevant
endorsement thereon evidencing the cancellation
of the registered
deed.
4. The fourth respondent is
further authorised and directed to take such further steps as may be
necessary in order to give effect
to the provisions of paragraphs 1
to 3 above.
5. The first respondent shall upon
demand pay ait costs, duties and fees in order to give effect to the
provisions of paragraphs
1 to 4 above. All amounts so paid by the
first respondent shall be deducted as a first charge against such
share of the joint
estate of the parties as is awarded to the first
respondent upon the granting of a decree of divorce dissolving the
marriage
between the applicant and the first respondent, and be paid
to the applicant.
6. In the event of the first
respondent refusing or failing to sign any documents in order to
give effect to this order, either
in his personal capacity or in his
representative capacity as natural father and co-guardian of the
second and third respondents,
upon request by registered mail to his
address at No. 1, Uitsig Street, Bellville, Cape Town, the Sheriff
of the High Court Bellville
is hereby authorised and directed to
sign all such documents on his behalf.
7. The first respondent is ordered
to pay the costs of this application on the scale as between
attorney and own client and the
applicant is authorised to execute
upon such costs order on taxation thereof, provided that the amount
payable by the first respondent,
as well as the amount of R48 915.73
which was paid by the joint estate in respect of the transfer of the
property under Title
Deed no: T27919/2009, shall be deducted, also
as a first charge, against such share of the joint estate as is
awarded to the
first respondent upon the granting of a decree of
divorce dissolving the marriage between the applicant and the first
respondent,
and be paid to the applicant.
J I CLOETE, A.J.