The judgment, handed down by Acting Judge Yake, ordered the property transferred back to the father after finding that the daughter had failed to honour the sale agreement and had not established that he lacked capacity at the time.
Image: File picture
A 77-year-old Cape Town man, Mr Fredericks, has won back ownership of his home after the Western Cape High Court found his daughter never paid the agreed R650,000 purchase price and rejected her claim that he suffered from dementia when the transaction was concluded.
The judgment, handed down by Acting Judge Yake, ordered the property transferred back to the father after finding that the daughter had failed to honour the sale agreement and had not established that he lacked capacity at the time.
“It is indeed unfortunate that this dispute arises within the context of family relations, for courts have consistently emphasised that such conflicts are best resolved outside of litigation, so as to avoid further strain upon familial bonds,” Yake wrote.
According to the judgment, Fredericks sold the property to his daughter in February 2022 for R650,000. Ownership was transferred into her name three months later, but the purchase price was never paid.
The father approached the court to cancel the agreement, alleging that despite repeated demands, his daughter had failed to pay for the property.In opposing the application, Ms Fredericks argued that payment had never been intended because the transfer formed part of an arrangement under which she would care for her father.
She also alleged that he suffered from dementia and lacked the legal capacity to enter into the agreement and contended that he had wanted to transfer the property to her out of fear of being taken advantage of by his sons.
Ms Fredericks provided paperwork showing her father had been diagnosed with “dementia decline baseline” by a doctor, but no follow-up visits had been held. The court also noted that subsequent to signing the agreement, Fredericks had signed a power of attorney authorising the transfer.
It is a common misconception that such instruments are designed to help families take over a loved one’s affairs once cognitive decline sets in. In South Africa, a power of attorney becomes invalid once the person who granted it loses the mental capacity to understand and manage their own affairs, says Remay Olivier, product manager of Trusts at FNB Fiduciary.
The court found that neither contention – that the transaction was a care arrangement rather than a sale, or that the father lacked mental capacity – could be sustained.
A psychiatrist who examined Fredericks concluded that he did not suffer from dementia and that his cognitive functioning was intact. Acting Judge Yake accepted that evidence, noting there was no expert evidence before the court to support Ms Fredericks’ allegations.
The psychiatrist’s findings “demonstrates that he remains capable of managing his own affairs and of prosecuting this application,” the judgment reads. “The respondent’s allegation that the applicant suffers from dementia is unsupported by any expert evidence,” the court found.
The court also rejected the argument that the purchase price was never intended to be paid. Yake found the written agreement clearly recorded a purchase price of R650,000 and that there was no evidence the obligation to pay had fallen away. “The first respondent has failed to pay the purchase price,” the judgment states.
Having found that Ms Fredericks had breached the agreement, the court ruled her father was entitled to cancel the sale and ordered the Registrar of Deeds to transfer ownership back into his name should she fail to cooperate with the process. She was also ordered to pay the costs of the application.
Yake noted that her conduct “reveals a pursuit of self-interest under the guise of protection,” adding that she had “gone so far as to depict the applicant as suffering from dementia and incapable of managing his financial affairs, while simultaneously failing to discharge her obligation to pay the agreed purchase price.
“Her stance amounts to an attempt to retain property that does not lawfully belong to her, cloaked in the rhetoric of care and concern.”
Where mental capacity is genuinely in question, families cannot rely on a power of attorney and must instead pursue formal legal routes, explains Neville Bredenkamp van der Spuy, senior associate attorney at Executor Law. Depending on the circumstances, this could involve a curatorship application through the courts or administratorship through the Master of the High Court.
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