woman wins back home after five years 
19 November 2007
 
Five years ago, after being involved in a near-fatal car accident, Clare Shea lost virtually everything - her unborn child, her business and her house. Now, she took a major step towards regaining some of her life.

The Durbanite won a precedent-setting court battle to reclaim her Berea home, unlawfully sold by a Durban attorney appointed as curator while she was recuperating. "I want to be in by Christmas," she said. "These few years have been hell. Yes, I had a terrible car accident, but what happened as a result was even worse. "Curatorship was there for my protection, but instead it took away my entire life."

Shea was severely injured in the early morning head-on collision on February 5, 2002. She lay in a coma for over a month. With doctors saying her prognosis was poor, her sister brought a court application for the appointment of a curator to handle her financial affairs.

Attorney Michael McKenna, of the law firm Legator McKenna, was appointed on March 8 that year. He thereafter gave Wakefields sole mandate to sell her three-bedroom house for R550 000 and signed a sale agreement with Jamie Erskine to purchase the property for R540 000 on April 22.

The house is now valued at more than R2-million.The purported transfer eventually took place in June, although Erskine took occupation of the house before then.

In 2004, Shea, through her lawyers, launched a Durban High Court application contending that the sale and subsequent transfer were null and void because McKenna had not received his letters of curatorship from the Master of the High Court in terms of the Estates Act.

Without this, she said, it was illegal for him to sell the house. She also contended in her papers before the court that she had been long out of the coma by the time the transfer went through - a fact that should have been brought to the attention of the Master.

In a judgment handed down on Friday, Acting Judge Aslam Motala found in Shea's favour.  He declared the agreement of sale and transfer of the property null and void.

On the back of payment of R540 000 by Shea to Erskine, the judge ordered Erskine to "take all steps" to effect transfer to Shea. He also directed Erskine, the attorney and the law firm to pay Shea's legal costs. These have financially crippled her again and, at last count, stood at over R218 000.

When Shea launched her application, Erskine also filed a suit against McKenna and the law firm.  In the event of his losing his home, he wanted R1,46-million, plus R200 000 for moving costs and transfer fees on another property.
 
Tania Broughton , www.iol.co.za