Tubane v Machakela and Others (799/2014) [2014] ZAFSHC 193 (30 October 2014)

Tubane v Machakela and Others (799/2014) [2014] ZAFSHC 193 (30 October 2014)

The court found that the applicant had established a proper case for repayment of monies paid to the first and second respondents, as the deed of sale was void ab initio due to fraudulent misrepresentation by the first respondent regarding ownership of the property. The third respondent, mandated to draft the contract and administer funds, failed to exercise the requisite professional skill and diligence by not verifying ownership and by paying out monies without proper authority or registration of transfer. The third respondent's opposition was deemed frivolous and lacking merit. The applicant was entitled to repayment of specified amounts and, if unable to recover from the first and...

Citation
[2014] ZAFSHC 193
Parties
Applicant: Kesebelwang Rebecca Tubane; Respondent: Tefu David Machakela; Respondent: Raymond Khokhop; Respondent: The Free State Advice Centre; Respondent: Mangaung Metropolitan Municipality
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
30 October 2014
Case Number
799/2014
Procedural Posture
Urgent Application / Application for Repayment and Damages Following Void Sale
Outcome
Application granted as prayed for in paragraphs 1, 4 and 5 of the notice of motion dated 24 February 2014.
Judges
N.P. Jaji
Legal Topics
Fraudulent Misrepresentation, Void Contract, Professional Negligence, Mandate Liability, Repayment of Purchase Price, Costs on Attorney and Client Scale
Land and Property Delict Civil Procedure Fraudulent Misrepresentation Void Contract Professional Negligence Mandate Liability Repayment of Purchase Price +1 more

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Parties

Kesebelwang Rebecca Tubane

Applicant

Tefu David Machakela

Respondent

Raymond Khokhop

Respondent

The Free State Advice Centre

Respondent

Mangaung Metropolitan Municipality

Respondent

Procedural Posture

Urgent Application / Application for Repayment and Damages Following Void Sale

Legal Issues

  1. 1 Whether the applicant has made a proper case for repayment of monies received and/or kept by the first to third respondents pursuant to the deed of sale.
  2. 2 Whether the deed of sale was void ab initio or voidable due to fraudulent misrepresentation.
  3. 3 Whether the third respondent was negligent in the discharge of its duties under its mandate with the applicant.

Ratio Decidendi

The court found that the applicant had established a proper case for repayment of monies paid to the first and second respondents, as the deed of sale was void ab initio due to fraudulent misrepresentation by the first respondent regarding ownership of the property. The third respondent, mandated to draft the contract and administer funds, failed to exercise the requisite professional skill and diligence by not verifying ownership and by paying out monies without proper authority or registration of transfer. The third respondent's opposition was deemed frivolous and lacking merit. The applicant was entitled to repayment of specified amounts and, if unable to recover from the first and...

Court Disposition

Application granted as prayed for in paragraphs 1, 4 and 5 of the notice of motion dated 24 February 2014.

Orders

  • The first to third respondents are ordered and directed to repay to the applicant, within ten (10) days of granting this order, the following amounts: R100,000.00 by the first respondent; R39,000.00 by the second respondent; R22,500.00 by the third respondent.
  • Insofar as the applicant is unable to recover successfully the monies claimed from the first and second respondents, the applicant is granted leave to approach this Honourable Court on the same papers duly amplified, if so advised, to claim any damages it may be able to prove against the third respondent.