Slabbert v Du Plessis
| Jurisdiction | South Africa |
| Judge | B Wanless AJ and K E Matojane J and G Wright J |
| Judgment Date | 03 June 2019 |
| Docket Number | A5052/2018 |
| Court | Gauteng Local Division, Johannesburg |
| Hearing Date | 27 May 2019 |
| Citation | 2019 JDR 1211 (GJ) |
Wanless AJ:
Introduction
This is an appeal against the whole of the judgment of Senyatsi AJ [1] delivered, in this court, on 6 September 2017, leave having been granted by the court a quo to appeal on 31 August 2018. [2]
The Applicant in the court a quo (Susanna Lucia Maria Du Plessis) instituted an application for a declarator and certain ancillary relief pertaining to an immovable property. [3] The First Respondent was Kelly Antoinette Slabbert, together with six (6) other respondents. The First Respondent opposed the application. None of the other respondents opposed that application and are not parties to this appeal. The court a quo granted the Applicant the relief sought, together with a punitive order as to costs, giving rise to the institution of this appeal by the First Respondent. For ease of reference the Applicant in the court a quo shall be referred to as "the Respondent" and the First Respondent in the court a quo shall be referred to as "the Appellant". Despite the fact that Senyatsi AJ did not specify, as required by section 17(6)(a) of the Superior Courts Act 10 of 2013, that leave was granted to the full court of this division rather than to the Supreme Court of Appeal, [4] both the Appellant and the Respondent expressly requested this court to hear the appeal.
The facts
Little purpose would be served, other than to burden this judgment unnecessarily, by setting out the facts of this matter in great detail. Indeed, this has already been done by the learned Acting Judge in his thorough judgment. [5] In essence, it is clear that the parties in this matter, either wittingly or unwittingly (it not being necessary to decide) were part of a massive fraud perpetuated by Brusson Finance (Pty) Limited (hereafter referred to as "Brusson").The modus operandi of Brusson, in doing so, is clearly set out not only in the judgment of the court a quo but also in various
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other judgments of our courts [6] in the ensuing litigation which arose at the demise of both the scheme and of Brusson (now in liquidation).
In short, a homeowner who needed to borrow money against the security of her home but who did not qualify for bond finance or further bond finance "sold" his or her home to an "investor". In the present case the Respondent, who needed to borrow money to start a business but who did not qualify for bond finance from a reputable lender, signed three documents at the offices of Brusson. The documents were in standard form and the numerous handwritten additions thereto were not initialled. Pursuant to these documents the Respondent sold her home to the investor, the present Appellant. In due course she would be allowed to buy it back once she had parted with sufficient money in favour of both Brusson and the Respondent. The clear and convincing version of the Respondent in this regard is that she, as a layperson, signed what she thought were no more than documents necessary to give effect to what she had been informed, by representatives of Brusson, was simply a transaction in which she would put up her home as security for a loan. The Respondent says, convincingly, that she never intended to sell her home or to transfer ownership in it.
The common thread to all of the individual transactions which formed part of the fraudulent Brusson scheme is that the owner of the immovable property was advised by Brusson that not only would the owner retain ownership of the immovable property but, further, that there would be a "resale" of the immovable property to the owner. [7] That is, the investor would sell the same immovable property back to the owner. This would take place either instantaneously, once the proceeds for, inter alia, the loan to the owner had been accessed by the investor by way of a mortgage bond against the immovable property but, certainly, no later than when the owner had repaid his or her indebtedness, in respect of the loan, to that investor.
In both Ditshego v Brusson Finance (Pty) Limited (supra) and Absa Bank Limited v Moore and Another (supra) our courts found that the transactions forming part of the Brusson fraudulent scheme were indeed unlawful; invalid and, consequently, of no force and effect. Despite the fact that the Heads of Argument filed
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on behalf of the Appellant did briefly make reference to a submission that the present matter was distinguishable thereto, it was not argued on behalf of the Appellant, before this court sitting as a court of appeal, with any great "vigour" that the transaction in the present matter was a lawful one. Further, it is important to note that the Appellant accepts that the Respondent was always under the impression that the ownership by the Appellant of the immovable property was only "temporary" (in order to give effect to the scheme, as dealt with above) and that ownership would revert to the Respondent. Indeed, it would be difficult for the Appellant to have raised any argument contrary thereto, in light of, inter alia, the convincing explanation in relation thereto as provided by the Respondent and as dealt with earlier in this judgment. There is nothing on the application papers in this matter that could lead to a finding that the transaction in this matter was, in any material manner whatsoever, distinguishable to those adjudicated upon in the matters of Ditshego v Brusson Finance (Pty) Limited (supra) and Absa Bank Limited v Moore and Another (supra). Like those other transactions the transaction in the present matter must therefore be accepted to be invalid.
The thrust of the Appellant's argument, on appeal, was that pursuant to the demise of the scheme and when Brusson failed to continue to act in terms thereof the parties entered into an oral agreement during June 2010. In this regard the Appellant avers that whilst some terms of the original agreement were "borrowed" or "incorporated" into this oral agreement, it was a new and separate agreement which replaced the agreement entered into and which was part of...
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