When does perjury become such a problem that one should open a case with the South African Police Services? Our police are overstretched (and probably underpaid) but does one try and lessen their load by not reporting a serial perjurer / fraudster? In the long run, one is not helping the nation by letting the culprits get away with their misdemeanours. Perjury and fraud are criminal offences. And what about misrepresentation? After all, one may be lured into a contract through misrepresentation and misleading marketing material.

Opening a Fraud Case

We opened a case of fraud in August 2020. The Detective Sergeant has not yet questioned the perpetrator. To make matters worse the perpetrator has moved away from the village. Questioning her will be difficult but hopefully the police will pursue the matter.

Opening a Perjury Case

We lodged documents at the village Police Station and we have a case number. At least the Public Prosecutor has agreed that it is perjury to lie in an affidavit.

Fraud

Fraud is commonly understood as dishonesty calculated for advantage.

Click here for The Free Dictionary legal definition of fraud.

During August 2020 the developer instructed the estate architect to submit new plans to the municipality. In the planning application the developer claimed to be the Owner. At the time we had been the owners for over 2 years! The new plans changed the description of the upstairs bedroom and study to attic rooms.

A bedroom and study are habitable spaces requiring a ceiling height of 2400mm. An attic room has no regulations per se. It may be a bedroom if it conforms to the regulations for habitable spaces. An attic may also be a non-habitable space.

• The changes were done without any consultation and certainly without our consent.
• The developer’s claim to be the “Owner” is a straightforward case of fraud.

Why This Fraud?

During construction, the builder did not follow the approved building plans. The upstairs rooms do not conform to SANS10400 regulations. By changing the plans, the developer could have our upstairs bedroom and study become non-habitable attic/storage spaces. This would benefit the developer as the roof and ceiling height would not need raising.

We owe a lot to the vigilence of the personnel in the building inspector’s office.  See our post The Building Inspector – we will forever be grateful for their integrity.

The developer and builder have stated categorically that they will not raise the roof and ceiling height. They will go to court and raise numerous notices of motion, but they will simply not raise the roof and obtain an occupation certificate. See our post on  Frivolous and Vexatious Litigation.

Perjury

A crime that occurs when an individual willfully makes a false statement during a judicial proceeding, after he or she has taken an oath to speak the truth.

Click here for The Free Dictionary legal definition of perjury.

Perjury 1 – The Upstairs Bedroom

In a founding affidavit (of which we now have many) the developer claims that one of her contractors may have inadvertently called the upstairs bedroom a bedroom. But not her. Be that as it may, the approved building plans call it a bedroom. The marketing material describes the room upstairs as a bedroom. Is the marketing material deliberately misleading?

In numerous emails the director talked about or discussed, amongst others:

• skylights in the bedroom on either side of the bed;
• the position of the TV in the upstairs bedroom opposite the bed;
• the upstairs main bedroom pergola;
• the tiles in the upstairs bedroom and study;
• curtains or blinds in the upstairs main bedroom.

To have to prove the perjury is onerous and time-consuming, far more onerous than just blurting out an untruth. To get the Police to open a criminal case is difficult, but perjury and fraud are criminal offences and should be investigated.

Below is the original 3-bedroom house plan. This clearly shows that one bedroom is upstairs on the first floor.

Perjury 2 – Residing at …

The developer’s sole director stated in her first Founding Affidavit in the High Court:

“The First Respondent is an adult male, currently residing at [the eco estate] (“the property”).

The Second Respondent is an adult female, currently residing at the property .” 

Firstly, the Applicant knows we live in Johannesburg. Our domicilium citandi et executandi in the Building Agreement is our home in Parktown North. 

Secondly, she also knows we have never lived in the eco estate. Our longest stay was a few weeks for a Christmas holiday in 2017. At that time we were blissfully unaware that the developer had not even applied for an occupation certificate.

The developer claimed that they “indulged” us by letting us stay in the house.

• As a developer they have no authority to grant such an indulgence.
• The Municipality alone has the authority to issue occupancy certificates.

What we did not know at the time, was that the developer actually still owned the plot. This critical information was deliberately withheld from us. Transfer had been delayed because the developer had a dispute with the council over sub-division. 

This director knows there is no occupation certificate. She knows that each inspection has failed. And she knows it would be an offence for us to occupy the property.

Here we are, 5 years since signing the Option Agreement and the house stands gathering dust. There is no occupation certificate and yet the developer is paid in full.

Perjury 3 – Non-Existent Clause

The director also stated that a condition of the Sales Agreement is:

“…. That the Respondents would allow the officials in the employ of the Municipality reasonable access to the property, so that a Occupation Certificate may be issued;”

There is no such condition in the Agreement of Sale or any other agreement. The developer deliberately misleads the court with her perjury.

• Be that as it may, we have never hindered or prevented officials from the Municipality from entering the property.
• We would be very happy to be able to live in the house, sell it or rent it.

Why would we not want an occupation certificate? After all the builder/developer has been paid in full and we pay rates and levies every month. Yet we may not  occupy the house.

Perjury 4 – Occupation on Transfer Date

Another statement by the same director:

“That possession and occupation of the property shall be given to the Respondents, upon the date that the property is transferred into the names of the Respondents

The Applicant has joined 2 separate clauses, from 2 separate agreements, when she says “possession and occupation”. There is no such statement in any agreement.

The SALES AGREEMENT Clause 4.1:

“Possession of the plot shall be given and taken on the date that the plot is transferred … .”

The BUILDING AGREEMENT Clause 7.1:

“Occupation of the Dwelling House shall be given and taken upon receipt of the Occupation certificate… .”

If we could have taken occupation on transfer we would have moved into the house during June 2018.

Perjury 5 – Removing the Bed

When our house was so-called “complete”, we put in some furniture. It made sense to be able to use the house when visiting our business.

The director states:

“… by refusing to simply move a bed located in the loft and/or attic room …  the Municipality, .. cannot issue the Occupation Certificate …” 

Here the director has perjured herself: she knew she could not get an occupation certificate simply by removing the bed because:

1. The approved building plans have the upstairs bedroom and study with the correct heights for habitable spaces (minimum ceiling height 2400mm);
2. The builder and developer know the house was not built according to the approved plans;
3. Every occupation inspection states the first floor ceiling height must comply with the approved room description (bedroom and study) and SANS 10400;
4. The Refusal of Building Plan dated 27 February 2017 (prior to  building) comments “Ceilings to comply with Part C of SANS 10400 (attic)”
5. The builder has stated categorically that they will not change the ceiling heights upstairs.

Removing the bed would never result in obtaining an occupation certificate. The truth of the matter is that the builder failed to follow the approved building plans. Furthermore, without raising the ceiling and roof the bedroom will never comply with SANS 10400 regulations.

Did the builder know at this stage that there was a potential problem with the height of the upstairs bedroom ceiling? Why else a photo like this? The approved building plans show the upstairs bedroom with exposed trusses and vaulted ceilings. But these trusses are very different to the architect’s specifications. Without vaulted ceilings the bedroom ceiling height does not conform to regulations.

Misleading

There was no one looking after our interests on this build. The developer deliberately misled us into believing the competent persons were looking after our interests.

The developer told us in writing that:

• the architect would be on site to ensure the builder followed the approved plans;
• the architect and engineer would sign off each stage of the build;
• the build would be enrolled with the NHBRC.

However, the architect’s responsibility ended with submission of plans to the Municipality. The engineer signed off sections of the cellar build without seeing it. And, the developer failed to enrol the build with the NHBRC as required by law, even though enrolment fees were included in the price.

Was there really someone looking after our interests?

Misrepresentation

An assertion or manifestation by words or conduct that is not in accord with the facts.

Click here for The Free Dictionary legal definition of misrepresentation.

We bought and paid for a 3-bedroom house with one bedroom upstairs on the first floor / attic floor. The marketing material calls the house a Type-D, 3 bedroom house. But, the builder said he was confused by the plans when we called the upstairs bedroom the Main Bedroom. And the developer says she never called the room a bedroom. Really?

• Is the media marketing material a deliberate misrepresentation of the final product?
• Or is it just that the developer and builder do not want to correct their build mistakes?

Conclusion

The developer’s perjury and fraud and misrepresentation have cost us a lot. The stress, time and effort it takes to prove the misdemeanours is enormous. The cost of legal fees, rates and levies for a house we may not occupy continue to rise. When will it end? We are already halfway through 2021.