Allegations Of Fraud Must Not Be Made Lightly

Background

In Ngwane v Cholo and Another, Mr John Sejamera Ngwane approached the Gauteng Division of the High Court, Pretoria and sought a declaratory order that he is the sole owner of immovable property. He further sought an order declaring the addition of Ms Phuti Pinki Cholo’s name to the title deed null and void on the basis of an alleged fraud.

The property had been registered in the joint names of Mr Ngwane and Ms Cholo on 18 February 2015 under Title Deed T9964/2015. Mr Ngwane contended that the property was awarded to him exclusively by the Gauteng Department of Housing under a housing subsidy scheme and that Ms Cholo fraudulently procured the inclusion of her name on the title deed. The title deed contained a restrictive condition under section 10A of the Housing Act, 1997 which prohibited the sale or allocation of the property unless first offered to the Gauteng Housing Department within eight years of registration.

Issues in dispute

The central dispute was whether Ms Cholo’s name had been fraudulently added to the title deed. Mr Ngwane alleged that he alone was the beneficiary of the housing subsidy and that Ms Cholo had no legitimate claim to co-ownership. He denied the existence of any customary marriage between them, asserting instead that he had merely paid damages in respect of a child born during their relationship.

Ms Cholo disputed the fraud allegations. She maintained that the parties had been in a romantic relationship at the time they acquired the property, that both had signed the power of attorney leading to registration in their joint names through the conveyancer, Mr Macmillan Dzivakivi of Gcwensa Attorneys, that the parties later married under customary law in 2016 and that she had been in possession of copies of the title deed since 2015.

Court’s findings

The court applied the well-established Plascon-Evans rule, which provides that where a final order is sought in motion proceedings and the facts are materially disputed, the applicant can only succeed if his claim is established on the common cause facts together with the respondent’s version where disputes exist. Applying this standard, the court found that Mr Ngwane’s fraud allegations were “flimsy,” lacking in primary facts and incapable of being established either on paper or on Ms Cholo’s version.

The court drew particular attention to a conspicuous omission: if Ms Cholo had indeed been fraudulently included as co-owner, the conveyancer who facilitated registration would necessarily have been involved in or aware of the irregularity, yet Mr Ngwane made no allegation whatsoever against the conveyancer. The court reiterated the established principle that allegations of fraud must not be lightly made and must be pleaded with particularity and supported by hard evidence.

The court further observed that the Gauteng Housing Tribunal had an interest in the matter, given the statutory restrictive condition on the property and ought to have been joined as a party. However, non-joinder was not the primary basis for dismissal of the application

Conclusion

The application was dismissed with costs on the punitive attorney-and-client scale. In awarding punitive costs, the court expressed its disapproval of the gratuitous abuse and unwarranted character assassination contained in Mr Ngwane’s affidavits, noting that the parties’ child was present in court when fraud allegations were repeated against her mother.

This judgment is a practical reminder that serious fraud allegations in motion proceedings require hard evidence and careful pleading. Vague assertions will not withstand the rigours of the Plascon-Evans test.

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