This post is about withholding information from the Court and not telling “the whole truth”.
We spent a day in court on 15 August 2022. Some weeks later we learnt how the developer and her legal team withheld vital information from the court and from our legal team on that day.
And they shamelessly entered into negotiations still withholding that crucial information.
A Day in Court.
There have been many hearings over our house but this was our first time that we decided to attend a hearing.
We made our way to the court room where our case is due to be heard only to find that the room had been double booked! A criminal case was about to begin – no wonder there were so many people! Anyway, we scuttled out very quickly and wound our way upstairs and downstairs and along corridors to another court room and there we waited for the judge to appear.
The Hearing
At a hearing, there is no swearing in with “I swear to tell the whole truth and nothing but the truth”. The proceedings just begin. The Applicant’s (senior) advocate (they had two advocates representing them) then started. And did he ramble on and on.
It all seems very boring. And it must be boring as the court personnel (3 of them) sitting in front of the judge, were on their cell phones texting away! Not a good use of taxpayers’ money.
By lunchtime the Judge himself had obviously had enough. He said he could not believe that there had been so many cases (10 in all so far) over ONE house. He suggested we try and negotiate during the lunch break. And this we did, in good faith.
The Start of Negotiations
This was a first attempt at negotiations since the developer started litigation proceedings 3 years ago. Vexatious litigants often do not want to enter negotiations, preferring the litigation route. (Read our post Here We Go Again to find out why.)
We had on two occasions given the developer the opportunity to buy back the house.
- Buy back the house and we will walk away and put it all down to a bad experience.
The first offer was in 2019 before they even started with litigation. How much time and money we could all have saved, if they had just done the right thing back then. We could have been saved the stress and the millions paid in legal representation. Millions paid to legal representatives while the house continues to deteriorate.
The developer refused both offers and although they said they were “interested” in the second offer, they never made a counteroffer. The offers were dead in the water.
Shenanigans in Court
During the lunch break negotiations started. We never went back into court. But the developer’s legal team were negotiating in bad faith. They withheld vital information from the court and from us – there was no whole truth from their side. This is not the first time the developer has withheld information. Read our post Property Scam to see how they failed to inform us during and prior to building our house.
Weeks later during a Deeds Office search we learnt of what perjury on the court had played out that day. Vital information that the developer and her attorneys both knew, was deliberately withheld from us.
Why All These Cases Over ONE House? To read more press +
A brief outline of how we got to this point in this court.
In June 2016 we signed a sales agreement and a building agreement with the developer of a new eco estate in the Cape Winelands. We bought into a “plot and the plan” sectional title scheme whereby the developer would build a 3 bedroom house for us.
In May 2017 we paid in full for the plot and build and deposited the funds in the developer’s attorney’s trust account.
The Builder’s Failures
The builder and developer failed to abide by conditions in the building agreement.
- The builder began to build without approved plans.
- He began to build prior to transfer of the plot into our names.
- He failed to enroll the home build with the NHBRC.
- The builder failed to follow the agreed plans and made variations without our knowledge and consent.
- He and the developer failed to obtain an occupation certificate for the house even after 4 attempts.
- The attorney misappropriated trust funds and paid the builder prior to the builder meeting the conditions of the building agreement.
The House Problems
The house has many problems. To mention but a few:
- Cellar flooded to a depth of about 600mm.
- Walls with 100% saturation and with cracks internally and externally.
- Solar system and other items supplied below specifications.
- Eco pool that doesn’t work because of a fundamental design flaw.
- The master bedroom does not conform to regulations and may not be used as a bedroom.
The builder was incompetent and simply did not have the necessary skills to work with the specialist eco building materials. To read more about the house building disaster, read The Sad Reality.
Instead of admitting their mistakes and doing the right thing, the developer started litigation.
Vexatious and Frivolous Litigation gives details of the many cases over the house.
The Interdict Case
Why An Interdict?
The developer is not developing properties. They have 11 properties remaining of the 44 properties they once owned.
- they have not built anything since our house in 2017
- nor have they bought any new tracts of land to develop since May 2016
- they vacated their business premises
- their home (in the business name) was sold in 2021
- several new companies are operating with the same sole director
For all intents and purposes, this developer (Pty) Ltd is dormant. It is highly likely we will win in the arbitration and by that time the developer may be nothing more than a shell company. We needed to ensure they could honour an award granted to us in arbitration. We were not preventing them from selling all their erven, we were merely ensuring they owned enough assets to cover an arbitral award.
Heads of Argument Shenanigan
The developer’s advocate submitted his Heads of Argument to the court on 8 August.
The main argument to prove the developer was not dormant, was a tract of land they owned and planned to develop sometime in the future.
Not The Whole Truth
However, the developer sold this erf on 30th June 2022 some 6 weeks before the hearing. The transfer of ownership took place on 1st September 2022, 2 weeks after the court hearing.
- The developer knew the land had been sold.
- The litigation attorney, who is the developer’s conveyancer, knew the land had already been sold.
- In fact, the conveyancer was present when the new owner signed transfer documents in mid-July and she was present in court.Yet they all chose to deliberately withhold this information from the court.
Not only did they withhold the information, they actively argued that this land proved they were still in the business of development and building. The advocate dedicated 3 pages in his heads of argument to the intended development of the land into 4 sectional title townhouses.
Negotiating In Bad Faith
The Judge asked us to try and negotiate during the lunch hour and this we did in good faith.
At the time we believed that the developer owned the tract of land which they planned to develop into a cluster of 4 townhouses. This was the developer’s pivotal argument. And now they not only hid the truth from the court, they hid the whole truth and withheld crucial information during negotiations.
They even got a court order based in their male fide negotiations.
Without a doubt, if the developer’s representatives had told “the whole truth”, the entire proceedings of the day would have been different. Negotiations would have been different and so too the resultant court order. Did their shenanigans pay off? Read on!
Read the article on Withholding Evidence in Quora.com:
If a court catches anyone doing it, the penalties may range anywhere from the judge yelling at you, to monetary penalties, to being cited or penalized for contempt of court, to having your side of the case “dismissed” by the judge, which will usually mean the other side automatically wins.
The Aftermath and Repercussions
The court order of mid-August only protected us for part of a likely arbitral award. Now we had to go to the expense of preparing a new Notice of Motion, along the lines of our original interdict, demanding certain erven be set aside. This time we had undeniable proof that the developer is no longer developing land.
We would also expose their shenanigans in court. The court would hear what mischief they played on the court in August.
When the attorney received the NOM they immediately replied giving in to our demands. Why? They did not want their misdemeanours aired in the high court. The whole legal team would have been in serious trouble. And the humiliation of being exposed in the very court where they practice their profession was simply not worth the risk to them. But nor could we could continue with going to court. We could not expose them!
Conclusion
The developer and her legal team – 2 attorneys and 2 advocates – have been caught out. There is no denying what they did and what information was withheld from the court and during subsequent negotiations.
To quote Western Cape High Court Judges Sher and Bozalek:
If practitioners who contravene the rules are not dealt with promptly and effectively .. a culture of impunity is fostered and the profession is lowered in the eyes of the public.
Legal practitioners who defy the standards and ethics expected of their profession should be held to account. Now it is up to the Legal Practices Council to expose them and hold them accountable.
The developer and her legal team have acted with impunity for years. Let’s hope this exposure stops them in their tracks.
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