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Monday May 18, 2015

Court orders return of house lost in property scam

When Dohnavin Arthur Wilsnach stands on the stoep of his home in Idas Valley, Stellenbosch, it brings back fond memories of his mother who used to knit there when he and his twin brother were growing up.

In fact, there are happy reminders of his youth all over the property - the bedroom he and his brother used for weightlifting, and an ornamental hand which made him and his brother feel safe.

Today Wilsnach shares the house with his wife, Lorindall, and two daughters, aged 21 and 29, and he intends to keep in the family for generations to come.

It is for this reason that Wilsnach turned to the courts and fought hard to hold on to his humble abode, after he fell victim to a fraudulent property scam that nearly left him and his family homeless.

His efforts paid off earlier this month when Western Cape High Court Judge James Yekiso ordered that ownership of the house be restored to him - words that left Wilsnach overcome with emotion. The Idas Valley house was bequeathed to him when his mother died in 2007, with a specific condition that it should not form part of a marriage in community of property to his spouse.

At the time Wilsnach worked for a firm of panelbeaters in Stellenbosch earning a meagre wage, and he soon started to struggle to make ends meet.

His financial situation spun out of control in May 2009 when he was retrenched, and he was constantly harassed by his creditors, some of whom had already obtained judgment against him.

Desperate for a solution, Wilsnach decided to respond to an advertisement in a local tabloid newspaper by a cash loan entity, MC Probonds.

Anthony Fisher and Craig Josephs - the sole shareholders of the entity at the time - visited him to discuss a way forward.

Prospects looked good and ended in Wilsnach concluding a partly written and partly oral agreement with the men, in terms of which they undertook to advance him a R186 000 loan to him, repayable within three to six months.

As security for the loan, MC Probonds would take transfer of Wilsnach's property. But once the loan was repaid, the property was to be transferred back to him.

He signed the agreement as well as additional documents, during two later meetings.

According to the evidence before the court, the agreements were never explained to Wilsnach, and parts of the documents were concealed.

Everything seemed fine to him until January 2010, when he answered a knock at the door from the sheriff of the court. They were looking for a Reagan Gillmore and his mother, Brenda, who owned the house and were in arrears with bond repayments to FNB. It turned out that one of the documents MC Probonds had given him to sign was a Deed of Sale, which reflected that he had sold the house to the Gillmores for R350 000, including transfer costs.

The additional documents included a power of attorney to C George Attorneys in Mitchells Plain, which was intended to facilitate the transfer of the property to the Gillmores.

MC Probonds was deregistered in 2011, and Fisher and Josephs could not be traced.

Wilsnach told the court he had never met the Gillmores, and never intended to alienate his property or agree to be liable for the costs of transfer.

The Gillmores, it appeared from the evidence, had never intended to buy his house either.

Wilsnach's battle for the house continued for several years, during which time he evaded eviction and stopped a sale in execution.

Judge Yekiso found, from the evidence before him: "There could never have been consensus on the part of (Wilsnach) and the Gillmores to conclude an agreement to permanently sell and transfer (Wilsnach's) property, in the normal course of alienation of the land, nor an intention on the part of Reagan Gillmore to acquire ownership of such property."

The judge also found it "improbable" that Wilsnach, in his dire financial state, would have agreed to be liable for costs and disbursements.

He concluded that MC Probonds had concluded the transaction fraudulently, and set aside the agreement as invalid, unlawful and unenforcable.

Judge Yekiso also ordered that a copy of the judgment be handed to the Cape Law Society.

"The relationship between (Wilsnach), as a seller, and Mr George would have been that of an attorney and client... It would have been the duty of Mr George to highlight to the plaintiff, as the seller, all clauses contained in the Deed of Sale which would have had a detrimental impact on the transfer. Over and above, it would have been the duty of Mr George to keep ( Wilsnach), as seller, informed of progress from time to time. This does not appear to have been done," he said.

An overwhelmed Wilsnach said he would never trust anyone again.

"We learnt a hard lesson," he said. He and his family could now focus on rebuilding their lives.

Duped into handing over homes

Property scams are not new to South African courts. There have been many similar cases in the past, most of which have seen positive results for the victims.

  • In Johannesburg, the Legal Resources Centre is representing scores of people who fell prey to a property scam known as the Brusson Scheme, in terms of which they were duped into handing over ownership of their properties in exchange for a loan.

    Last year the South Gauteng High Court ruled in favour of the Moore family, ordering that their home be restored to them, and that they be placed in the position they were in before entering into a loan agreement with Brusson Finance (Pty) Ltd.

    The court declared the agreements between Brusson and the Moores invalid and unlawful, and set them aside.

  • In August, a full Bench of the Western Cape High Court ruled in favour of a 76-year-old wheelchair-bound pensioner.

    Engela Lambrechts first turned to the Western Cape High Court in 2012 to get back the Bellville house which her father had built, and which had been in the family for about 50 years.

    She was swindled out of the house when her debt-ridden son responded to a newspaper advertisement by Property Rescue, offering to help bondfree homeowners out of financial trouble.

  • Mitchells Plain couple Joslyn and Vernon van Niekerk¬ís case did not have a happy outcome.

    They turned to the Western Cape High Court in 2012, saying that Vernon had left his job and used money from his provident fund to buy a house in Rocklands in 2007.

    However, the couple battled to cope with their expenses and, desperate to settle their debt, responded to an advertisement offering help to blacklisted people placed by close corporation Gentox A.

    A man identified as Jonathan Katz offered them a deal which entailed selling the house to him, then renting it back from him, but with an option of buying it back after a year.

    The couple agreed and sold the house to Katz for R95 000. When they signed the documents, they saw Katz was not a party to it but rather a close corporation called Gentox A, with Katz as the sole member.

    The couple fell into rental arrears, and in March 2010 Katz issued a summons for the arrears amount. He also applied to have them evicted. The case was postponed several times until October 2012, when an eviction order was granted.

    Weekend Argus (Saturday Edition)

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