As I write this I feel deeply ashamed; ashamed of a legal system that delivers unspeakable injustice to a poor man trying to provide his family with a home.
That man is Mbulelo Mtati. He is a cleaner at Rhodes University in Grahamstown. No-one could call him well-off.
In October 2010 he signed a deed of sale to buy a property from sellers Mr and Mrs Bacela. The asking price of R50,000 was to be paid on registration of transfer. That transfer would be passed by the Bacelas’ conveyancer, the respected Grahamstown legal firm, Whitesides.
Just what happened next is not clear. As the court put it, there is a material dispute of fact between the parties “and each party blames the other”. But here’s the bottom line: before the house was transferred, the entire purchase price was put into the sellers’ account. Nothing was kept back to cover the outstanding bond and the rates and services charges due at the date of transfer.
The sellers, once they received the funds, refused to co-operate. They will neither pay over the money due on the bond nor sign the papers necessary for transfer.
Whitesides advised Mtati that because of the situation, he would have to find the money to pay the bond on top of the purchase price, and he spent considerable time and effort raising a loan from the university for the more than R27,000 still due on the Bacelas’ bond. But still the sellers refused to budge, and even now, according to the judgment, they continue to retain both the house and the full purchase price.
The matter went to the magistrate’s court where Whitesides, apart from disputing how the full amount came to be paid over to the Bacelas in the first place, claimed Mtati’s claim had prescribed.
The magistrate agreed and threw out the claim. Mtati took the matter on appeal and now three high court judges have given their decision: indeed, the claim has prescribed, they said. If he was going to claim against Whitesides, he should have brought the claim within the allowed three-year per-iod from the time he had the facts on which he could base his claim.
In the view of the courts and Whitesides, that was May 2012 at the latest “when it became clear that the money allegedly transferred to the sellers would and could not be recovered from them”.
It is not hard to understand the delay. Unable to accept losing both the house and the money, Mtati cast around for a resolution, trying everything he could think of. He raised extra money from a loan in the hope that if he paid off their bond the sellers would sign the papers. Each time that Whitesides talked to the sellers he would have prayed that the Bacelas would agree to return his money or sign the papers to transfer the property to his name.
And then, unbelievably, the already cruel story gets worse: the judges awarded costs against Mtati.
Can you imagine his bewilderment? He has paid for the house in full, yet the seller refuses to let him have it. Not only have the lawyers at the centre of the wrangle been let off the hook, but he must now also pay their legal costs.
The case has shaken me. In future, when I hear of people taking to the streets rather than “going the legal route”, I shall remember Mtati.
- First published in the Financial Mail, 7 June 2018