De Filippo v Micillo (Reasons)

The plaintiff, substituted for his late father Giancarlo De Filippo, claimed ownership proceeds of two Cape Town properties purchased with Giancarlo's funds but registered in the defendant's name, pursuant to oral agreements. Giancarlo and the defendant, Italian citizens and former cohabitants, acquired the properties in 2013/2014. Giancarlo financed the purchases; the defendant held registered title. An oral agreement existed whereby properties would be sold and proceeds repatriated to Giancarlo's European account. After the relationship ended in 2014, the defendant sold one property (B[...]) and retained the proceeds of R12,181,781.48, and continued occupying the other (K[...] C[...]), asserting the properties were donations. Giancarlo made multiple unsuccessful settlement offers. The defendant failed to appear at trial resumption on 2 September 2024 after numerous delays attributed to her conduct.

• Whether an oral agreement existed between the parties concerning the immovable properties, including a tacit term for sale and repatriation of proceeds upon relationship termination.
• Whether the oral agreements fell within the ambit of section 2(1) of the Alienation of Land Act 68 of 1981, requiring written contracts for alienation of land.
• Whether the plaintiff discharged the onus of proving the contract, including its tacit terms, on a balance of probabilities.
• Whether the court should proceed with the trial in the defendant's absence given her default of appearance and conduct.
• Whether an award of costs on the attorney and client scale was warranted.

1. The defendant shall pay to the plaintiff the amount of R12,181,781.48. 2. The defendant shall pay interest on the aforesaid sum at the legally prescribed rate, a tempore morae. 3. The defendant is directed to do all things necessary to enable the plaintiff to sell the immovable property situated at 1[...] K[...] C[...] Road, Constantia, Cape Town. 4. The Sheriff of the High Court is authorized and directed to comply on the defendant's behalf with the order in paragraph 3 above, in the event of the defendant failing to do so. 5. The plaintiff is released from having to provide security for the defendant's costs and, to the extent necessary, Webber Wentzel Attorneys are released from the bond of security in the defendant's favour dated 8 December 2017. 6. The entire amount of the proceeds of the sale of the immovable property situated at [...] B[...] Avenue, Constantia, Cape Town, currently held in the trust account of Bowman Gilfillan Inc., are to be paid forthwith into the trust account of Webber Wentzel Attorneys. 7. The defendant shall pay the plaintiff's costs of suit on the scale as between attorney and client.

An oral agreement obliging a registered property owner to sell the property and pay the proceeds to the financier of the purchase does not constitute an 'alienation of land' in terms of section 2(1) of the Alienation of Land Act 68 of 1981, and need not be in writing. A tacit term of a contract, including one for the sale and repatriation of proceeds upon termination of a relationship, may be inferred from the common intention of the parties as evidenced by their express terms and surrounding circumstances, assessed on a balance of probabilities.

The court remarked on the defendant's conduct, noting that when a litigant's conduct is aimed at delay and at abusing the process of Court, it should not be tolerated. The defendant's failure to obtain legal representation was not credible given her likely access to significant funds from the sale of an apartment in France, about which she refused to disclose details. The court observed that lay people are also expected to play by the rules, and the defendant's last-minute health claims did not constitute evidence preventing her attendance.

This case illustrates the application of the Alienation of Land Act to agreements concerning immovable property that impose obligations to sell property and repatriate proceeds, rather than directly alienating land. It reinforces principles regarding the proof of oral and tacit contracts, the evaluation of evidence where a key witness is deceased and affadavits are admitted, and the court's discretion to proceed with a trial in a party's absence where their conduct is deliberately dilatory and constitutes an abuse of process. It also demonstrates the circumstances under which an attorney and client costs order may be granted.