How a Kyalami property deal literally and figuratively went up in flames

A failed deal involving a quirky property situated on Main Road, Kyalami, ended last week in the Johannesburg high court, with the seller of the property ordered to take the property back and repay the buyer almost R1.4m along with his legal costs.

The conflict dates back more than 11 years when seller Tirtza Mosewicka concluded her deal with buyer, Colin McLellan, in November 2014.

The property at the centre of their legal war — a rambling site with a restaurant, farm stall and other odd improvements — was sold to McLellan for R3.518m.

McLellan took occupation of the property on transfer, but soon realised that his dream home was actually a bit of a nightmare — peeling paint, rickety rafters and a roof that was thatch-like sheeting and not a solid structure.

A closer inspection led to further discoveries — windows were cracked or crudely fixed with nails and wooden wedges; glass panes (only 1mm thick instead of the standard 4mm) were spiderwebbed; the entire site emerged as a mass of DIY mishaps of straw, gum poles and reclaimed lumber.

The roof consisted of translucent sheeting, gum pole rafters, straw and stick components. A makeshift mezzanine level was built with irregular timber — all of this shown in photographs.

The images were captured by McLellan as he set about documenting the problems and difficulties he encountered.

Three years after the deal was signed, disaster struck in the 2017 Christmas holidays.

Sometime between Christmas and New Year, a fire ripped through the restaurant building, blackening beams, scorching surfaces and gutting parts of the property.

It was later discovered that the blaze had been deliberate. It was not the result of an electrical fault or a cooking mishap — it was the work of an arsonist.

A few months after the fire, on April 26 2018, McLellan wrote to Mosewicka, urging her to deal with the mess. She did not respond.

A month later, he delivered a formal cancellation letter, scuppering the sale deal. He packed up, walked away from the burned-out remnants of the restaurant and restored possession of the property to Mosewicka.

That day, May 31 2018, was the beginning of a legal war, marking the formal end of the sale agreement and the start of legal consequences for both sides, with the fire damage now factoring in as a loss under the failed contract.

In November 2023 Johannesburg high court judge Leicester Rock Adams found that at the time McLellan moved into the property it was run down. The premises were dilapidated, badly built and required extensive repainting, re-electrification, new toilets and remedial work. Plaster quickly became visible through thin coats of pain, according to photographic evidence.

Adams found that the property was built by Mosewicka’s partner — “Mr Gush” — who had used recycled materials and it was deteriorated and dilapidated by the time McLellan moved in.

Adams said this meant that the value of the premises should be assessed in the state it was, and not as a newly built structure, and this needed to be determined by a quantity surveyor.

This led him to declare the sale terminated and he ordered that McLellan was entitled to get back all he had paid. However, this was to happen only after factoring in what it would fairly cost to repair the fire damage.

At that stage, the core issue was how much Mosewicka should repay McLellan to compensate him for the failed sale after the fire damage costs were discounted.

Last week, the Johannesburg high court handed down judgment in favour of McLellan.

Adams ordered that McLellan be paid a principal sum of R798,948.63 — being the settlement figure calculated on May 31 2018 when the deal was cancelled — and an additional R613,548.77, being the interest calculated at 10% a year for a period now sitting at seven years and 250 days.

The court found that Mosewicka must continue to pay interest on what she owes McLellan until the debt is settled. The buyer has to return the property to the seller.