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[2015] ZAWCHC 59
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Wilsnach v Gilmore and Others (24815/11) [2015] ZAWCHC 59 (8 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: 24815/11
DATE:
08 MAY 2015
In
the matter between:
DOHNAVIN
ARTHUR
WILSNACH
.........................................................................................
Plaintiff
And
REAGAN
GILMORE
........................................................................................................
1st
Defendant
BRENDA
FELICIA
GILLMORE
...................................................................................
2nd
Defendant
MALLORY
ANTHONY
FISHER
...................................................................................
3rd
Defendant
CRAIG
HERMAN
JOSEPHS
..........................................................................................
4th
Defendant
CHRIS
BOTHA
.................................................................................................................
5th
Defendant
THE
REGISTRAR OF
DEEDS
.......................................................................................
6th
Defendant
FIRST
RAND BANK
LIMITED
......................................................................................
7th
Defendant
Coram:
Yekiso, J
Dates
of Hearing: 2, 3, 4, 5, 23 June, 7 & 31 July 2014
Date
of Judgment: 08 May 2015
JUDGMENT
YEKISO,
J
[1]
The plaintiff,
Dohnavin Arthur Wilsnach, a 48 year old male person, was, up until 28
July 2009, the owner of a certain property
situate at and commonly
known as 25 Dahlia Street, Idas Valley, Stellenbosch. The property
was bequeathed to him by his mother
who died in 2007 on the specific
condition that the property would not form part of a marriage in
community of property subsisting
between the plaintiff and his spouse
and on a further stipulation that in the event of the plaintiff
predeceasing her, the property
would devolve to plaintiff’s
youngest daughter, Gulldrine Theresa Wilsnach.
[2]
The plaintiff
had, up until about May 2009, been employed by a firm of panelbeaters
in Stellenbosch. It was during this period that
plaintiff was
retrenched and, consequently, lost his employment. He lost his
employment at a time he had serious financial difficulties.
He was
constantly harassed by his creditors, some of whom had already
obtained default judgment against him. Because his name was
listed in
the credit bureau he could not access any form of a loan in order to
alleviate his financial difficulties. Sometime during
May 2009 he
responded to an advertisement which appeared in “Die Son”
newspaper. The advertisement was placed
by a cash loan
corporate entity, a close corporation carrying on business under the
name and style of MC Probonds CC (MC Probonds).
He contacted MC
Probonds whereafter he was visited, at his residence at 25 Dahlia
Street, Idas Valley, Stellenbosch, by Mallory
Anthony Fisher
(“Fisher”) and Craig Herman Josephs (“Josephs”).
Fisher and Josephs were members of MC Probonds
each holding a 50%
membership share.
[3]
At the
plaintiff’s place of residence the plaintiff, Fisher and
Josephs, the two representing MC Probonds, concluded a partly
written
and a partly oral agreement. The material terms of the
agreement were that MC Probonds would advance the plaintiff
a loan in
an amount of R186,000-00; as security for the loan so advanced, MC
Probonds would take transfer of the plaintiff’s
property; the
loan would be repayable within a period of three to six months; MC
Probonds undertook not to alienate the property
whilst registered in
its name; and once an amount of R186,000-00 shall have been paid the
property would be transferred back to
the plaintiff. The material
portion of the agreement reads as follows:
“
AGREEMENT
& ARRANGEMENT ENTERED INTO AND BETWEEN
MC
PROBONDS CC t/a MC PROBONDS Of 16 Hawk Crescent Rocklands, Mitchells
Plain, 7785
&
DOHNAVIN ARTHUR & LORENDALL MAGDALENE WILSNACH Of 25 Dahlia
Street, IdasValley, Stellenbosch, Erf No.6 6411
Property
situate at 25 Dahlia Street, Idas Valley, Stellenbosch, with erf no.
6411, will hereby be registered in the name of MC
Probonds, for a
period of 3 to 6 months, after which property will be transferred
back to occupants.
Occupants
shall remain on the above property, with their rights to exercise
property as they wish, without interference from MC
Probonds.
MC
Probonds waive the rights to claim such property for themselves
including the right to sell or lease such property.
Transfer
from MC Probonds to occupants will take place within 3 to 6 months.
On
behalf of MC PROBONDS
signed
signed
C.H.
JOSEPHS D.A. WILSNACH
signed
signed
M.A.
FISHER L.M. WILSNACH ”
[4]
Evidence tends
to suggest that MC Probonds is no longer carrying on business.
Information from the Companies & Intellectual
Property Commission
(“CIPRO”) indicates that MC Probonds was deregistered in
2011. It has no existing offices
and has no contact details.
Its members, Fisher and Josephs, are nowhere to be found.
But what is clear on the
basis of information obtained from CIPRO is
that both Fisher and Josephs were indeed members of MC Probonds each
holding a 50%
membership share.
[5]
Subsequent to
the conclusion of the agreement referred to in paragraph [3] above,
Fisher and Josephs once again called at plaintiff’s
place of
residence. On this occasion the plaintiff and his spouse were
requested to sign a further document. According
to plaintiff
certain portions of the document they were requested to sign were
blank and some portions were concealed. The
plaintiff states in
his evidence that both Fisher and Josephs claimed to have been in a
hurry as they still needed to proceed to
Wellington to conclude a
similar business. He states in his evidence that he was not
afforded an opportunity to peruse the
document. At the time he
signed the document he was under the impression that it related to
the loan that was going to be
advanced to him by MC Probonds.
[6]
It subsequently
turned out that the document the plaintiff, and his spouse, were
required to sign had nothing to do with the anticipated
loan to be
advanced by MC Probonds. It was an offer to purchase which, on
acceptance, would constitute a deed of sale. In
this document the
purchase price is indicated to have been in an amount of R350,000-00
inclusive of costs of transfer.
This is despite the fact
that the amount of loan the plaintiff sought was in an amount of
R186,000-00. The document was signed
at Stellenbosch on 6 May
2009.
[7]
The document so
signed purports to be a deed of sale concluded between the plaintiff
and his spouse and one Reagan Gillmore and
Brenda Felicia Gillmore.
The plaintiff did not know the Gillmores and had never met them
before. The plaintiff states in
his evidence that under no
circumstances could he have agreed to conclude an agreement to sell
his property on the terms stated
in the purported deed of sale.
He had never intended to permanently alienate his property and, in
doing so, agree to be liable
for costs of transfer.
[8]
Few days after
the document was signed, the plaintiff, together with his spouse,
were taken by Fisher and Josephs to the offices
of C George
Attorneys, the latter being a firm of attorneys and conveyancers
carrying on practice in Mitchells Plain.
At the
aforementioned firm of attorneys the plaintiff, together with his
spouse, were caused to sign several documents. The
plaintiff
states in his evidence that these documents were not properly
explained to him. When he signed the documents he
was under the
impression that he was signing documents to facilitate a transaction
arising from the loan agreement concluded between
him and MC
Probonds. It subsequently turned out that the documents which
the plaintiff was required to sign, which included
a power of
attorney, were documents intended to facilitate transfer of
plaintiff’s property to the Gillmores.
[9]
It further transpires on the basis of some
of the documents in the bundle of documents handed in as exhibit “B”
that
on 2 June 2009 plaintiff, together with his spouse, concluded
yet a further agreement. It is an agreement purportedly
concluded
between Reagan Gillmore and plaintiff. It is
co-signed by plaintiff’s wife. The agreement provides
that there
would be a shortfall of R70,000-00 in respect of a
home loan that the buyer had applied for and that the purchaser would
pay the shortfall. It concludes by stating that the agreement
constitutes a valid agreement between the parties.
It is
dated at Mitchells Plain, 2 June 2009. Although the agreement
is co-signed by plaintiff’s wife, it is not signed
by Reagan
Gillmore.
[10]
On
the same date, this being, 2 June 2009, and still on the basis of the
bundle of documents handed in as exhibit “B”,
the
plaintiff appears to have signed yet a further document. The
document is addressed to C George Attorneys, Mitchells Plain
and it
bears the heading “To Whom It May Concern”. The
document reads “I/We hereby instruct C George Attorneys
to
deposit all monies into the cheque account of C H Josephs with
account number 07366601” The plaintiff is the sole
signatory of this document.
[11]
Subsequent to the signature of the
documents referred to in the preceding paragraphs it appears, still
on the basis of the bundle
of documents handed in as exhibit “B”,
that various amounts were advanced to the plaintiff. On 11 June
2009 an
amount of R20,000-00 was deposited into Standard Bank
account number 277392802. The holder of this account is MC
Probonds
which is obviously controlled by Fisher and Josephs.
On 24 June 2009 an amount of R7,000-00 was deposited into the
Standard
Bank account number 278292550. On 3 July 2009 a
further amount of R5,000-00 was deposited into the same account. And,
finally,
on 13 July 2009 a further amount of R3,000-00 was deposited
into the same account. The holder of this account is plaintiff’s
wife, Lorindall Magdalane Wilsnach. Mr Clinton George, an
attorney and the proprietor of the firm C George Attorneys, who
testified at trial, stated in his evidence that all the advance
payments and all other disbursements were paid out of the business
account of his firm.
[12]
Various other
disbursements were paid in the course of dealing with the matter,
these being an amount of R400-90 paid in respect
of a beetle
certificate; an amount of R2,310-26 in respect of rates and taxes;
and a further amount of R1,170-00 in respect of
electrical
certificate. As has already been pointed out, all these amounts
were paid out of the business account of C George
Attorneys.
[13]
The contents of
the file relating to the transfer of the property by C George
Attorneys were discovered. The contents thereof, as
well as the file
cover, were handed in as exhibit “B”. Several
attendances relating to this matter are noted
on the file cover.
On the cover of the file, it is noted that the transfer documents
were lodged with the registrar of deeds
on 8 July 2009. The
note on the cover of the file further indicates that on 20 July 2009
plaintiff was advised of a shortfall
in an amount of R70,000-00.
The note on the cover reads as follows: “Advised seller of
shortfall. Gillmore to
pay R70,000-00. Seller confirms
and accepts R280,000-00.” It is further noted on
the cover that registration
into the names of the purchasers went
through on 29 July 2009 and that plaintiff, as the seller, as well as
plaintiff’s agents,
were advised of this fact.
[14]
Once registration into the names of the
purchasers had gone through C George Attorneys accounted to the
plaintiff. The statement
of account is dated 30 July 2009.
It is addressed to a Mr D A & L M Wilsnach. No postal or physical
address is
stated in the statement of account. The amount due
to plaintiff is R156,794-74. The aforementioned amount was deposited
into
the account of plaintiff’s wife on 31 July 2009. C
George Attorneys attended to both the transfer of the property from
plaintiff to the Gillmores as well as the registration of the bond in
favour of FNB.
[15]
The Gillmores
did not service the bond with FNB. As a consequence of this default,
FNB, through its attorneys of record, issued
summons against the
Gillmores for the recovery of an amount of R299,999-58. The
summons was issued on 28 December 2009, a
period of somewhat 5 months
after registration of the property into the name of the Gillmores and
the bond in favour of FNB. The
summons was served on the chosen
domicilium citandi et executandi
of
the Gillmores, it being no 12 Canna Street, Lentegeur, Mitchells
Plain. The summons was served on 28 January 2010. On 21
April
2010 the bank obtained default judgment against the Gillmores, the
property having simultaneously been declared executable.
The
property was due to be sold in execution on Wednesday, 10 November
2010 but the sale in execution did not proceed due to the
intervention of one Chris Botha who, so it was suggested in evidence
at trial, settled the arrears.
[16]
On 10 January
2011 the Gillmores instituted eviction proceedings against the
plaintiff out of the magistrate’s court, Stellenbosch.
The Gillmores sought the eviction of the plaintiff from the property
on the basis that the plaintiff is in unlawful occupation
thereof.
Whilst the proceedings in the magistrate’s court, Stellenbosch
were pending, the bank recommenced the process
to have the property
sold in execution, ostensibly because whilst the Gillmores were
seeking the eviction of the plaintiff from
the property, the bond was
not being serviced in the process. In order to prevent the
property being sold in execution, the
plaintiff instituted urgent
proceedings out of this court under case number 17785/11 for an order
restraining the bank from proceeding
with the proposed sale in
execution and the stay of eviction proceedings in the magistrate’s
court, Stellenbosch pending
the hearing of action to be instituted by
plaintiff.
[17]
The urgent
proceedings referred to in the preceding paragraph were argued before
Ndita J. Once Ndita J had heard the parties,
she granted the
relief sought, effectively restraining the bank from proceeding with
the sale in execution of the property, the
order being subject to the
specific condition that plaintiff institutes the contemplated action
within a period of thirty (30)
days from the date of granting of the
order. The order was granted on 9 November 2011 and the
contemplated action was instituted
out of this court on 7 December
2011 under case number 24815/2011. In that action Reagan
Gillmore and Brenda Felicia Gillmore
have been cited as the first and
the second defendant, respectively; Mallory Anthony Fisher and Craig
Herman Jospehs have been
cited as the third and the fourth defendant,
respectively. Chris Botha, who, it appears on the basis of the
evidence, had
made payment to the bank in order to settle the arrears
at the time such payment was made and thereby prevented a previous
sale
in execution and had, in the process, shown interest in
purchasing the property, is cited as the fifth defendant; whilst the
registrar
of deeds and the bank, Firstrand Bank Limited, have been
cited as the sixth and the seventh defendant, respectively.
[18]
In that action, and as against the third
and the fourth defendant (Fisher and Josephs, respectively),
plaintiff seeks an order declaring
the agreement concluded at his
residence between him and the third and the fourth defendant to be
declared invalid
;
similarly,
as against the first and the second defendant (the Gillmores), the
plaintiff seeks an order declaring the purported deed
of sale alleged
to have been concluded between him and the first and the second
defendant, invalid and void
ab origine;
restitution of the performance, which
includes a directive that the property purportedly sold and
transferred to the first and the
second defendant, be restored to the
plaintiff; in the alternative, payment of damages in an amount of
R207,800.00 together with
interest thereon at the rate of 15,5% per
annum
a tempore morae
from
date of demand upto date of payment; and costs of suit as against
first to the fourth defendants. Although the summons
was
properly served on all the defendants, only the seventh defendant,
Firstrand Bank Limited, entered an appearance to defend.
[19]
The plaintiff’s cause of action is
based thereon that the third and the fourth defendants breached the
agreement concluded
between the third and the fourth defendant
(Fisher and Josephs, respectively) and the plaintiff at the latter’s
place of
residence in that they failed to honour their undertaking
that the property would not be sold and thus alienated to a third
party;
and that the third and the fourth defendant fraudulently
misrepresented to the plaintiff that the document the plaintiff was
required
to sign at his residence on 6 May 2009 (the purported deed
of sale) was a document intended to facilitate the required loan
whereas,
in fact, the document turned out to be a deed of sale
concluded between the plaintiff and his wife and the Gillmores, the
first
and the second defendant.
EVIDENCE
IN THIS COURT
[20]
Six witnesses were called to testify in these proceedings, these
being: plaintiff; plaintiff’s wife, Lorindall Magdalene
Wilsnach; Mr Clinton George, an attorney who attended to the transfer
of the property and the registration of the bond; Mr Dewald
Roux, a
consultant employed at FNB; Christelle Adonis and Crystal van der
Westhuizen, both employed at C George Attroneys.
THE
EVIDENCE OF THE PLAINTIFF
[21]
The salient features of the plaintiff’s
evidence is simply that in response to the advertisement which
appeared in “Die
Son” newspaper he telephoned MC Probonds
whereafter he was visited by Fisher and Josephs, the third and the
fourth defendants
in these proceedings, respectively. After a
discussion at the plaintiff’s residence with regards to the
service MC
Probonds provides, the parties concluded a partly oral and
partly written agreement. The written part of the
agreement
has been cited in full in paragraph [3] of this judgment.
The written part of that agreement provides that the property would
be registered in the name of MC Probonds, for a period of three to
six months, and after that period shall have lapsed, the property
would be transferred back to the plaintiff. The agreement
further provides that MC Probonds waives the right to claim such
property for themselves including the right to sell or lease such
property. Based on this provision of the contract, plaintiff
understood that the property would not be sold or alienated to a
third party. Plaintiff’s wife, Lorindall Magdalene
Wilsnach, was present and participated in these discussions.
[22]
The plaintiff’s understanding of the
agreement, so the plaintiff stated in his evidence, was that MC
Probonds would obtain
a loan on his behalf from the bank. He
would have to repay the loan in an amount of approximately R2,500-00
per month but
that, for the first six months after the granting of
the loan, MC Probonds would service the loan on his behalf. He
confirms
having signed a series of other documents subsequent to the
conclusion of the agreement. These documents included a
document which later turned out to be a deed of sale concluded
between him and Reagan Gillmore and his mother, Brenda Felicia
Gillmore. His evidence is that there were portions of the
document which were incomplete and other portions concealed from
him
and his wife. In particular, those portions in which the
particulars of the purchasers have been filed in, were incomplete
when the document was signed.
The
impression conveyed to him was that the document they were called
upon to sign was to facilitate the provision of a loan to
be advanced
by MC Probonds. The contents of the document were not explained
to them. They were asked to sign the document
without delay as
Fisher and Josephs were in a hurry to go to Wellington to conclude a
similar business.
[23]
Subsequent to the signature of the
documents referred to in the preceding paragraph, the plaintiff and
his wife were taken through
by Fisher and Josephs to an attorney’s
office in Mitchells Plain, C George Attorneys, where they were
required to sign further
documents. The plaintiff’s
evidence is that the documents the plaintiff was called upon to sign
at the aforementioned
firm of attorneys were not explained to him nor
was he apprised of the contents thereof. In signing such
documents, plaintiff
assumed that those were documents intended to
facilitate the loan agreement concluded between him and MC
Probonds.
Mr George was not present on all occasions when
plaintiff was called upon to sign those documents. The first
time he saw
Mr George was at the magistrate’s court,
Stellenbosch in the course of the hearing of the eviction
proceedings.
He confirms that various advance payments
were made to him whilst the transaction was pending.
[24]
The plaintiff
stated in his evidence that once the total funds would have been paid
to him pursuant to the loan agreement, only
then would the property
be registered in the name of MC Probonds as security for the monies
to be lent and advanced. Pursuant to
this agreement the plaintiff
would be required to repay the loan so advanced by way of monthly
payments in amounts of R2,500-00.
It never was his intention at any
stage to sell his property or to alienate his property to a third
party. He was unaware that
the documents he was required to sign at
the offices of C George Attorneys were intended to facilitate
transfer of the property
to the Gillmores pursuant to a deed of sale
purportedly concluded on 6 May 2009. He was unaware that his property
was transferred
to the Gillmores on 28 July 2009. The first time he
became aware that his property had in fact been sold and subsequently
transferred
to the first and the second defendant was in January 2010
when steps were taken by the bank to have his property sold in
execution.
It is only then that he became aware that he was defrauded
of his property, whereafter he went to lay a charge of fraud against
Fisher and Josephs at Cloetesville S A Police Services under
reference number CAS 471/01/2010.
THE
EVIDENCE OF LORINDALL MAGDALENE WILSNACH
[25]
The evidence of
his wife corroborates his evidence in as far as the conclusion of the
agreement at plaintiff’s residence is
concerned; the
circumstances surrounding the signature of the purported deed of sale
on 6 May 2009; and the subsequent several
visits to the office of C
George Attorneys where several further documents were signed. She
further confirms that Mr George was
not present on each occasion the
plaintiff was called upon to sign documents at the offices of the
aforementioned attorneys.
[26]
Mr Clinton
George, the conveyancer, and Christelle Adonis, the paralegal,
contrary to what the plaintiff and his wife said in their
evidence,
testified that they personally explained to plaintiff each one of the
documents the plaintiff was called upon to sign.
In particular,
they state in their evidence that it was explained to the plaintiff
that he is selling and transferring his property
to the first and the
second defendant and that he, Mr George, would be attending to the
transfer of the property from plaintiff
to the purchasers in the
persons of the Gillmores pursuant to the deed of sale. The
evidence of Crystal van der Westhuizen
was merely to the effect that
the plaintiff’s wife often called their offices to enquire when
transfer of the property would
go through.
THE
PLAINTIFF’S COMPLAINT
[27]
The basis of the
plaintiff’s complaint, as set out in his particulars of claim,
is that it never was his intention, at any
stage, to sell his
property. The plaintiff denies having concluded a deed of sale with
the Gillmores in terms of which he is purported
to have sold his
property to the Gillmores at a purchase price in an amount of
R350,000-00. He did not give anybody authority to
conclude such an
agreement on his behalf. All the documents he was required to sign
subsequent to the conclusion of the loan agreement
between him and MC
Probonds were signed on an honest belief that they were documents
intended to facilitate the loan agreement
concluded between him and
MC Probonds. The transfer of his property into the name of the
Gillmores was as a consequence of
a fraudulent scheme perpetrated by
Fisher and Josephs operating under the name and style of MC Probonds.
[28]
Apart from the plaintiff’s complaint
that the transfer of his property to the Gillmores was as a
consequence of a fraudulent
scheme, the plaintiff further complains
that the agreement concluded between him and MC Probonds contravenes
the provisions of
the
Alienation of Land Act, 68 of 1981
, in
particular, the provisions relating to formalities set out in
section
2
and the requirements relating to the content of such an agreement
as provided in
section 6
of the
Alienation of Land Act. The
other
basis of the plaintiff’s complaint is based on the allegation
that the agreement on the basis of which the property
was transferred
contravenes various provisions of the
National Credit Act, 34 of
2005
.
[29]
It is on the
basis of evidence summarised in paragraphs [21] to [26] of this
judgment, including documentary evidence referred to
in this
judgment, that I have to determine if the plaintiff has made out a
case that the transfer of his property on the basis
of the deed of
sale purportedly concluded between him and the Gillmores was a
consequence of fraudulent misrepresentation which
resulted in him
acting to his detriment and an ensuing prejudice.
MISREPRESENTATION:
LOAN AGREEMENT
[30]
The plaintiff
stated in his evidence that although he was heavily indebted at the
time he responded to an advertisement in
Die
Son
newspaper, at no stage was it his
intention to sell his property. Although he was prepared to use his
property as security for
a loan to be advanced, it never was his
intention to transfer ownership of his property to MC Probonds or to
any third party.
His agreement that the property be transferred
to MC Probonds for a period of three to six months, whereafter same
would be transferred
back to him, was intended to be a means of
security for the loan to be advanced by MC Probonds. The undertaking
by Fisher and Josephs,
on behalf of MC Probonds, not to sell or lease
such property for the duration of a period of three to six months, is
indicative
of the fact that he never had an intention to transfer
ownership of his property. All the further documents signed
subsequent
of the conclusion of the loan agreement, including those
documents signed at the offices of C George Attorneys, were signed in
an honest and
bona fide
belief that such documents were intended to facilitate the loan
agreement concluded between him and MC Probonds. Whatever
mandate MC Probonds and/or Fisher and Josephs may have had, is
limited to the terms of the loan agreement.
DEED
OF SALE
[31]
The deed of sale on the basis of which the
property was transferred to the Gillmores was purportedly concluded
on 6 May 2009. Although
the deed of sale bears the plaintiff’s
signature together with that of his wife, the plaintiff stated in his
evidence that
that document which purports to be a deed of sale is a
document referred to in paragraph [7] of this judgment brought to him
by
Fisher and Josephs which they were required to sign without
reading it and without delay as Fisher and Josephs still needed to
proceed to Wellington to conclude a similar business. It purports to
be a deed of sale concluded between plaintiff and his wife,
on the
one hand, and Reagan Gillmore and Brenda Felicia Gillmore, on the
other hand. The plaintiff states in his evidence that
he has never
met the Gillmores before. The first occasion the plaintiff met the
Gillmores was at the hearing of the eviction proceedings
at the
magistrate’s court, Stellenbosch. He had never offered to sell
his property to the Gillmores or any other party.
[32]
No evidence was led at this trial as
regards the circumstances under which Reagan Gillmore and Brenda
Felicia GIllmore signed the
purported deed of sale. The only evidence
that there is as regards how it came about that the Gillmores signed
the deed of sale
is the evidence of Reagan Gillmore tendered at the
magistrate’s court, Stellenbosch in the course of the eviction
proceedings.
In those proceedings Reagan Gillmore testified that
Fisher once proposed an arrangement with him in terms of which
properties of
persons who fell in arrears with their bond instalments
would be transferred to him. The transaction relating to the transfer
of
plaintiff’s property onto his (Gillmore’s) is one of
such transactions. He would be paid an amount of R10,000-00 for
each
such transaction. He testified that he never saw the property
in dispute; had never been to the plaintiff’s place
to view the
property; and have never intended to buy plaintiff’s property.
[33]
It is quite clear on the basis of the evidence of the plaintiff in
this trial and the evidence of Reagan Gillmore at the eviction
proceedings in the magistrate’s court, Stellenbosch that
neither the plaintiff, at any stage, had an intention to transfer
ownership of his property nor had Reagan Gillmore had any intention
of becoming an owner of the plaintiff’s property.
Accordingly, there could never have been a mutual intention and an
agreement to permanently sell and transfer the property by plaintiff
in the normal course of alienation of the land. All that the
plaintiff had intended to do in his interaction with MC Probonds
was
to acquire a loan to protect his interest and the loss of his home.
It is thus clear on the basis of the evidence that
MC Probonds,
represented by Fisher, fraudulently caused a deed of sale to be
concluded between the plaintiff and the Gillmores
on the basis of
which purported deed of sale plaintiff’s property was
transferred to the Gillmores.
[34]
Quartermark Investments (Pty) Ltd v
Mkhwanazi & Another
2014 (#) SA 96
(SCA) is authority for the proposition that where the underlying
agreement to pass ownership is tainted by fraud,
ownership will not
pass despite registration of transfer. That the underlying agreement
being tainted by fraud; the absence of
an intention by plaintiff to
transfer ownership; and the absence of any evidence of an intention
to take transfer and to acquire
ownership, it follows that the
purported transfer of ownership from plaintiff to the Gillmores has
no effect and the plaintiff
remains the owner of the property.
N
J Yekiso
Judge
of the High Court