My partner and I signed an offer to purc...

Asked by Natalie-Ann on 29-10-2021 14:55:02
Question posted in the Malpractice Law category relating to Gauteng

My partner and I signed an offer to purchase on a property which was accepted and we moved in. Upon moving in we found a slew of Latent defects and called a Master Builder to quote on repairs, which he knew instantly as he had quoted on the same repairs for the owner before our date of signing the Offer to Purchase. He gave an affitdavit to that effect that he had quoted the owner. We cancelled the sale agreement and in reply received correspondence from the owner declaring the sale agreement "null and void" because of a missing signature. It took us 60 days to find another property, put in an offer and then wait a month for their earliest occupation date. The transfer was effected on the new property 10 days after occupation. The owner of the first property then sued us for occupational rental - as defined in the sale agreement that they had declared null and void. We also laid a charge at the SAPS for fraud since the latent defects were known about and not disclosed. The Prosecutor for the area had just gone on sick leave, then there was a rotating prosecutor - so the SAPS feedback on the case (heading into COVID) was that they did not have the capacity to deal with white collar issues. The owners father is a very wealthy man and is paying her legal fees, we on the other hand since COVID have reduced from two incomes to one. A friend who is an attorney assisted us and we paid her. The owners attorney obtained a judgement against my partner and we offered R500 a month in payment as we did not have any further affordability. The offer was rejected and they tried to come after my furniture - but we won an interpleader proving that the furniture was mine and not my partners. Now they are trying to attach the new property where the bond is higher than the value of the property as we got an additional amount added to the bond to make alterations to the property. Our attorney friend told us after the judgement was issued that she would "request a review" (not the correct jargon but something in that line) and she never did. Another attorney I consulted said she should have taken additional steps based on our affordability under COVID that ths did not inform us about. Last week, a friend who is a Mediator said that the matter should never have gone to court as there is a 41 Rule that says that since March 2020 all such matters should go to mediation so as not to burden the courts, but no-one in the process let us know about that and we have been severely prejudiced by the inability to afford high priced attorneys to represent us. But I don't know what to do now. Our next court date is on the 4th of November and I am supposed to submit an answering affidavit that I have a template for but don't know exactly how to write (our attorney friend says she has no time to do it because of a big case she is working on) and we cant afford thousands of rands for another attorney. How do we get this 41 applied and get this matter taken back to mediation? Our Mediator friend mentioned something about aproaching the court - but I'm not sure how to do that. Is there an office or a person at the relevant court that one can aproach on this type of thing? 

Information Requested by Lawyer

Posted by Att. Patrick on 29-10-2021 15:07:38

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

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Att. Patrick

Answer to the Question

Posted by Att. Patrick on 29-10-2021 15:20:22

If you have evidence from a builder that he had previously quoted the owner to fix various latent defects in a property, and then he never proceeded with fixing the defects, and the property owner sold and transferred the property to you without disclosing those latent defencts, then you would most certainly have a claim against the owner for damages, which would be the cost of repairing those issues. 

But this would only be if you accepted transfer of the property; which you say you didn't, because you cancelled and then the seller tried to argue that it was null and void. 

The owner of the first property is entitled to rental from you for that period of time that you were living in their property. The claim would be based on "market related rental" that the owner might be able to achieve on the open market. 

I would suggest that you would have a counter-claim against the owner to cover any other costs that you had to find another property, given that the first sale agreement didn't proceed. So your counter-claim might be close (in amount) to their claim against you. 

I don't know how much luck you will get with SAPS and suing somebody for fraud for latent defects flowing from an agreement. SAPS might very well tell you that it is a civil dispute and that they can't assist you. But try it and see how far you can push them!

At first blush, it sounds as if your attorney friend might have dropped the ball in allowing them to get a judgment against your partner. Did they run a trial and prove their occupational rental claim? Or did they get a default judgment because you didn't want to go to court?

The Rule 41A is definitely something that could have assisted you. But it does require both parties to "buy into" the mediation process. You can't force someone to mediate properly.

If your next court date is 4 November, and you have to submit an answering affidavit, that would mean that you are the respondent in the case. I would assume that the owner of the property is the applicant. 

But you said that she had already got a judgment ... so how do they have a judgment but they are still suing you?

Why can't you say in your answering affidavit that there is a dispute of fact in the pleadings and you want the application dismissed as a result, alternatively referred for the hearing of oral evidence? That's what I would do if I was the respondent. 

You can file a Rule 41A notice asking for mediation at the same time as your answering affidavit. 

Unfortunately, in matters where statutory mediation should have been pursued and litigants fail to engage seriously therewith, the Courts have inherent jurisdiction to make adverse costs order against any such party who doesn't try to mediate. So that's really the worst that can happen. They can be refused costs in the application.

I think that you should contact their attorney directly and ask if they won't agree on a mediation in accordance with URC 41A because it might dispose of the entire dispute, together with the criminal charges. 

Information provided by client

The court date is due to them trying to force the sale of the house we purchased to move to after leaving their property. They went to court to get the rental, they wanted a lot more and we did submit a counter-claim and the judge gave them the rental on the offer to purchase. Afterwards our attorney said she would ask for "a review"? I cant remember the jargon but it was some kind of request for reevaluation as the judgement did not take into account the amounts we did pay while on the property (we made sure to pay all costs and paid for any breakages - the gate motor etc) - in addition the rental they requested was far higher than market-related. But she did not do this.
The property was sold a month later to someone else at a selling price R150 000 less than we offered. We know that no adjustment was made and no "legal" gas compliance certificate was obtained but now do not have "standing" to request an inspection. We have aproached the new owners and sent them a list of the defects but they seem unwilling to "get involved".

With the above does your reponse: Why can't you say in your answering affidavit that there is a dispute of fact in the pleadings and you want the application dismissed as a result, alternatively referred for the hearing of oral evidence? That's what I would do if I was the respondent. still apply?

We offered R500 a month three times, they have rejected that. Due to COVID my business was shut down so thr household is now reliant on my partners salary and no more is available in the budget. We do get things like tax returns or he gets bonuses once a year, but we cannot make commitments arround those as we don't know the timing or the amounts.

Answer to the Question

Posted by Att. Patrick on 30-10-2021 10:46:20

I would have hoped that you would have led evidence as to what the market related rental was for the property, then the judge would have made a call. If you are not happy with the judge's decision, what you need to do is to apply for leave to appeal against the order. 

If the property was sold later for less, and if you canceled the sale agreement because of their breach, then they can't claim damages from you. They can only claim damages from you if you breached the sale and they cancelled. It gets quite technical, but this is the law. 

You can still say that there is a dispute of fact, and that the matter should be referred to trial. Do that. 

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