The Rock Foundation Properties & Another v Chaitowitz

Ms Esther Nyarwi Ndegwa, through her entity The Rock Foundation Properties, concluded a suite of agreements with Dosvelt Properties (Pty) Ltd, represented by its sole director Mr Eli Nathan Chaitowitz. These agreements comprised a deed of sale of immovable property for R3 million, a lease agreement allowing continued occupation and development of the property, and an option permitting repurchase within three years for R3.3 million. The agreements were concluded after Ms Ndegwa fell into arrears on her bond and faced execution. Following transfer, the Rock Foundation defaulted on rental payments, leading Dosvelt to cancel the lease and option. Ms Ndegwa and the Rock Foundation applied to the High Court seeking a declaration that the agreements were simulated transactions disguising an unlawful credit agreement under the National Credit Act (NCA), and sought retransfer of the property. The High Court dismissed the application and granted Dosvelt’s counterapplication. Leave to appeal was refused by both the High Court and the Supreme Court of Appeal on petition, prompting an application for reconsideration under s 17(2)(f) of the Superior Courts Act.

The matter was struck from the roll, and the applicants were ordered to pay the respondents’ costs jointly and severally.

The case clarifies the strict and narrow scope of reconsideration under s 17(2)(f) of the Superior Courts Act, reaffirming that exceptional circumstances require more than reargument of factual disputes. It underscores that allegations of simulated transactions under the National Credit Act are fact-specific and do not, without more, raise issues of public importance warranting reconsideration.