Stirling v Fairgrove (Pty) Ltd and Others

• Jurisdiction: South Africa
• Judge: Senyatsi AJ
• Judgment Date: 06 September 2017
• Citation: 2018 (2) SA 469 (GJ)
• Docket Number: 551/2016
• Hearing Date: 06 September 2017
• Counsel: PG Louw for the applicant (Stirling) T Albertus SC (with G Quixley) for the first respondent (Fairgrove). KD Moroka SC (with S Rawat) for the second respondent (the registrar). K van Zyl for the third respondent (Alvares).
• Court: Gauteng Local Division, Johannesburg

Senyatsi AJ:

Introduction

[1] C The main application, brought under case No 0551/2016 by the applicant (Stirling), concerns declaratory order that the applicant is still the owner of an immovable property known as Erf 85, Hurlingham Town, Johannesburg (the property), and for the expungement of two deeds of transfer in terms of which Erf 85 was first transferred to the third respondent (Alvares), who in tum transferred it to the first D respondent (Fairgrove).

[2] The main application is not opposed by any of the respondents. Although Fairgrove initially gave notice of opposition and filed an answering affidavit, it seeks no relief against the applicant. Alvares only opposes the counter-application of Fairgrove, and his answering affidavit E deals specifically with the counter-application.

[3] The counter-application brought by Fairgrove, which is opposed by only the second and third respondents, seeks damages occasioned by payment of R3 650 000 and R180 397,58 to Alvares and the South African Revenue Service (Sars), respectively. Sars was paid the transfer F duty for the property, ownership of which was obtained through fraud. The counter-application also seeks certain ancillary orders, inter alia, that the Public Protector, in terms of s 6(4)(a)(i) of the Public Protector Act 23 of 1994, be directed to investigate the circumstances under which the property was transferred to Alvares, with a view to determining G whether any criminal acts were committed during the transfer procedures and further whether similar such acts were committed in respect of other transactions involving Alvares or any other parties, and to take such remedial action as the Public Prosecutor may deem fit; that the relevant centre of the South African Police Services be directed to investigate the circumstances under which the property was transferred H to Alvares, also with a view to determining whether any criminal acts were committed during the transfer procedures, and, further, whether similar acts were committed in respect of other transactions involving Alvares and any other parties; and against the second and third respondents jointly and severally, the one paying, the other to be I absolved.

[4] The third respondent, Alvares, also instituted an action under case No 7994/2016 against the alleged estate agent John Nkosi (Nkosi) and Phungula-Nkosi Properties.

[5] Fairgrove brought an application to consolidate the action by Alvares J in these proceedings. The application was granted on 29 July 2016 by

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this court. As a consequence three applications will be dealt with in this A judgment.

Background

[6] Stirling, the applicant in the main application, was the lawful owner of the property since 1972. She is married to her husband out of community of property. B

[7] During early-2014 Stirling and her husband returned from holiday in KwaZuIu-Natal and found that their property had been broken into by intruders who not only stole their movables but also vandalised it. The property was in such a state of disrepair that it was not habitable. C This caused Stirling and her husband to vacate the property and live in a townhouse.

[8] Stirling's husband, on one of his subsequent visits to the property, found that their gate padlock had been replaced with a strange padlock. He learned from his neighbour that the property was on sale. Stirling was D informed about the state of affairs and she instructed her legal representative to investigate the matter. She was still in possession of her original deed of transfer and had not given any estate agent mandate to sell her property.

[9] Upon investigation the legal representative established that the E property had been 'sold' to Alvares, the third respondent, who had in tum sold it to Fairgrove. The investigations further revealed that the applicant had 'sold' the property to Alvares for R2 790 000 who in turn sold it to Fairgrove for R3 650 000. Her signature had been forged on a deed of sale, special power of attorney to pass transfer, and other relevant documents required for the registration of ownership of the property to F be effected.

[10] It was furthermore established that the power of attorney was purportedly executed in Stirling's name on 20 April 2015, authorising a certain William Roger Smith to appear before the registrar to attend to the transfer of the property to Alvares for the sum of R2 790 000. G The purported power of attorney reflected that it was prepared by a conveyancer named Choene Kekana (Kekana). There were errors in the power of attorney such as the incorrect description of the property as measuring '4245' (by incorrectly stating 'two comma zero two three five') metres square. H

[11] Kekana was not a conveyancer or attorney registered with the Law Society of the Northern Provinces. More importantly, the appearer in the power of attorney, William Smith, was also not an attorney or conveyancer. There was no deed of substitution of Roger William Smith by Kekana, who executed the deed, and as a result Roger William Smith I was supposed to have been the one appearing before the registrar of deeds.

[12] The 'transfer' of the property from the applicant to Alvares was lodged with the registrar on 29 May 2015, as per annexure AA2 to the second respondent's answering affidavit. The transfer was rejected by the J

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registrar A on 8 June 2015. The reason for rejection was that the original title deed was not annexed to the application for transfer, as required under reg 51(1) of the regulations promulgated in terms of the Deeds Registries Act 47 of 1937 (the 'regulations' and the 'Act', respectively).

[13] After the rejection an affidavit supporting an application in terms of B reg 68(1) for a duplicate deed of transfer was purportedly deposed to by Stirling on 10 June 2015 (the 'reg 68 affidavit'). The reg 68 affidavit was not signed by Stirling, and her signature on the document had been forged. It reflected that the commissioner of oaths before whom Stirling purportedly deposed to the affidavit was one Alan James Levy, an C attorney practising as Levy & Associates. The affidavit had purportedly been prepared by Kekana, who was represented on the affidavit as being a conveyancer, and stated that the circumstances under which the deed of transfer was lost were 'unknown to [Stirling]'. Levy was not a practising attorney and appeared to have been a fictitious person.

[14] D The 'transfer' was relodged with the registrar on 11 June 2015 after a duplicate deed of transfer had been issued on the strength of the false reg 68 affidavit. Deed of transfer T55404/15, transferring the property from Stirling to Alvares, was executed at the registrar's offices in Pretoria on 18 June 2015, and from that date the title to the property was in the name of Alvares.

[15] E After receiving notice of counter-application by Fairgrove in the main application, Alvares issued proceedings for the recovery of R2 790 000 against Phungula-Nkosi Properties and John Nkosi under case No 7994. Alvares stated in that application that Phungula-Nkosi Properties was paid R2 790 000 for the purchase of the property.

[16] F Alvares in that application seeks that the sale be set aside and that the respondent be directed to pay the costs of the application on the scale as between attorney and own client. There was no opposition to the applications by both respondents and, as stated before, the application, which had been stayed by this court, is consolidated and being heard in G these proceedings.

[17] In that application Alvares avers that he concluded a deed of sale on 15 February 2015 with Phungula-Nkosi Properties and John Nkosi for the purchase of Erf 85, Hurlingham Township, Sandton, for the amount of R2 790 000, and attached to his affidavit the deed of sale incorporating H a power of attorney in terms of which Phungula-Nkosi and John Nkosi claim to have been given power of attorney to sell the property by Stirling.

[18] The property was transferred to Alvares on 18 June 2015. During August 2016 Alvares was approached by one Progress Ncube of CMRE I Property Marketing with an offer from a client for R3 650 000 for the contested property. As a consequence he signed a deed of sale on 17 August 2016 for the sale of the property for the said amount to Fairgrove, the first respondent in the main application.

[19] It appears that the offer was made to Alvares in August 2015 and J not 2016, as he claims in his application. He claims furthermore that he

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learned for the first time during January 2016 through a telephone call A from one Julian Scher, who acted for Stirling, that the property was not sold by the owner and presumably that no one had the power of attorney to represent the owner of the property.

[20] He immediately telephonically contacted John Nkosi, who failed to present himself at the agreed meeting. He never managed to have further B contact and was subsequently served by Stirling with the main application.

[21] Alvares offers no explanation as to how he paid the full purchase price of R2 790 000, and provides no proof of any of the payments made by way of the purported agreed instalments. C

[22] The sale agreement between Alvares and the seller suggests that four payments of R300 000 each were to be made — in March 2015, April 2015, May 2015 and June 2015 — and that payment of the balance of R1 590 000 was to be made on or before 15 February 2016. No evidence was presented to show that the four payments were indeed D made or that the balance was paid as contemplated by the agreement. For all we know is that Alvares received registration of transfer of ownership of the property on 18 June 2015. He does not make out a case in his papers that he performed in terms of the contract by paying as agreed, and has not...