I believe my grandmother was influenced to give her house away for free. What can I do about it?

The long answer

When a beneficiary such as your late grandmother is given an RDP house, she must live in it for eight years before she is allowed to sell it. I presume the same would apply to donating an RDP house: it can only be done after the beneficiary has lived in the house for eight years.

Although the government intended RDP houses to stay in the family, I can discover no law that makes it illegal for an RDP house to be donated to a non-family member after the required initial eight years. 

If the house deeds were registered by the Deeds Office through a transferring or conveyancing attorney in the name of the new owner, that would confirm that the house legally belonged to the person to whom your grandmother donated the house.

You say it has been sold twice since then, which would also not be illegal since the sellers were not beneficiaries and so the eight-year requirement would not apply to them. 

If, as you suspect, your late grandmother was influenced to donate the house while not in good mental health, would certainly be illegal. But it would be a difficult thing to prove as you would need evidence rather than just believing that your grandmother was being unduly influenced to donate the house. 

Usually, cases of undue influence are brought by family members contesting a will where the deceased person has left property to others and left out close family members. In these cases, the deceased person was particularly dependent on the person who benefited from the will, and was frail and ill. 

In the 2020 case of De Bruin vs Stoffberg and Others, Judge Sylvia Daniso said that it is obviously rare to have direct evidence of undue influence because “it would usually be behind closed doors.” In addition, the person who made the will cannot testify as they are deceased. Thus, “evidence of surrounding factors must therefore be taken into account in the determination of whether there was undue influence.”

This could include discussions between the person bringing the matter to court (the applicant) and the deceased, as well as the deceased’s vulnerability and dependence on the beneficiary. 

But crucially, said the judge, “The onus of proof lies with the applicant who attacks the validity of the will. It’s not enough to merely allege undue influence, the applicant must also prove that when executing the will, the deceased was influenced to the extent that her free will was completely oppressed.”

I found only one case of undue influence that was brought concerning rights in property which was brought by a woman who had allegedly been bullied and abused by her life partner into signing an agreement benefiting her partner (Isaacs v Potgieter and Others, 2019). Judges Sherries Weiner, Roland Sutherland and Thifhelimbilu Phanuel Mudau in the Johannesburg High Court found that there had indeed been undue influence by Potgieter and found in favour of Isaacs, setting aside the agreement that she had signed under this influence.  

In your case, even if the deeds were transferred in the required legal way, the courts could set the transfer aside, and any subsequent transfers, if they found that the house had been obtained by undue influence.

If you did have evidence of your grandmother’s mental deterioration and you could prove that she was misled into donating her house under, say, the pretext of renting it out for some months, you could ask for legal advice on how to proceed.

If you cannot afford a lawyer, Legal Aid, which is a means-tested organisation could assist you.

Here are their contact details:

• Legal Aid Advice Line (Toll-free): 0800 110 110

• Please-Call-Me number: 079 835 7179

• Email: communications2@legal-aid.co.za

You could also contact the Black Sash for free paralegal advice: 

• Black Sash

• Helpline for free paralegal advice: 072 663 3739

You could also contact Pro Bono, a legal organisation that will take a case on without charge, if they think it is in the public interest.

• ProBono.org

Email: info@probono.org.za

Johannesburg: 011 339 6080

Cape Town: 087 806 6070/1/2

Wishing you the best,
Athalie