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[2011] ZAGPJHC 124
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Guman NO v Ansari and Others (2011/2648) [2011] ZAGPJHC 124 (23 September 2011)
REPORTABLE
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
CASE NO: 2011/2648
DATE:23/09/2011
In the matter between:
YOUSUF GUMAN N.O.
(in his capacity as executor of the late
estate
Guman, no.
21765/05)
...................................................................
Applicant
and
FAWZIA
ANSARI
..........................................................................
First Respondent
THE FURTHER OCCUPIERS OF STAND 306/0,
.............
Second
Respondent
ACTIONVILLE, EXTENSION 2 TOWNSHIP,
BENONI, commonly known as
306 PATEL STREET, ACTONVILLE,
EXTENSION 2, BENONI
CITY OF JOHANNESBURG METROPOLITAN
....................
Third
Respondent
MUNICIPALITY
J U D G M E N T
MBHA, J:
[1] The applicant seeks an order for the eviction of the first
respondent and anyone occupying and claiming occupation under
or
through her, from the residential premises and immovable property
situated at Erf 306 Actionville, Extension 2 Township, Benoni,
and
commonly known as 306 Patel Street, Actonville (“
the
property
”). This application is in terms of the Prevention
of Illegal Eviction from and Unlawful Occupation of Land Act, No. 19
of
1998 as amended (“
the PIE Act
”).
[2] The property is the main asset in a deceased estate. The
previous owner, the father of the applicant, died on 28 August 2005
without a last will and testament and accordingly his estate must be
distributed to the intestate heirs in terms of the
Intestate
Succession Act, No. 81 of 1987
.
[3] The first respondent is currently in occupation of the property
and has been for the past 53 years. She has occupied and possessed
the property in terms of the deceased’s consent.
[4] It is not disputed that upon the applicant’s appointment
as executor of his late father’s estate, he attended
a meeting
with the first respondent and attempted to put in place a lease
agreement with her, pending the final valuation of the
property and
the possible sale thereof and the finalization of the estate. The
first respondent refused to enter into a lease agreement.
[5] The applicant has further attempted to resolve the matter by
offering the property to the first respondent to purchase for
R150
000,00, subject to the Master’s approval. However, the first
respondent was unwilling to purchase the property for that
amount and
instead offered to purchase the property for R75 000,00.
[6] The first respondent raises three defences namely:
6.1 that the property was orally bequeathed to her by the deceased;
6.2 that the applicant must accept her offer to purchase the property
for R75 000,00; and
6.3 that she has an improvement lien of approximately R70 000,00 in
respect of the property and is entitled to remain in possession
thereof until she has been paid out for such lien.
[7] During argument Ms Gordon, representing the first respondent,
conceded that the allegation that the property was orally bequeathed
to the first respondent by the deceased could not be sustained. This
concession is, in my view, well made as the first respondent
accepts
that the deceased died intestate and as such his estate must be
distributed to the intestate heirs. Furthermore, the first
respondent has never laid any claim of ownership of the property on
the basis of an oral bequest of the property to her by the
deceased.
In any event, the fact that the first respondent offered to purchase
the property for R75 000,00 flies in the face of
her claim of
ownership to the property.
[8] The second defence that the applicant must accept the first
respondent’s offer to purchaser the property for R75 000,00,
was likewise not pursued during argument. The applicant has a valid
offer from a third party to purchase the property for an amount
of
R280 000,00. It is trite that the applicant, in his capacity as
executor, must finalise the estate in the best interests of
the
intestate heirs.
[9] The first respondent contends that she is a
bona fide
possessor of the property and that she has incurred necessary
expenses for the maintenance and improvement of the property as a
result of which the owner of the property has been enriched in
respect of the overall value of the property. She accordingly
contends that she has a valid enrichment claim against the estate for
R70 000,00.
[10] The first respondent has set out the nature and the costs of the
improvements to the property, which amount to approximately
R70
000,00, and contends that she is entitled to retain possession or
occupation of the property until she has been duly compensated
for
those expenses (improvement lien).
THE APPLICABLE LAW
[11] A lien (right of retention,
ius retentionis
) is the
right to retain physical control of another’s property, whether
movable or immovable, as a means of securing payment
of a claim
relating to the expenditure of money or something of monetary value
by the possessor (termed “
retentor
” or “
lien
holder
”, while exercising his or her lien) on that
property, until the claim has been satisfied. See
Brooklyn House
Furnishers (Pty) Ltd v Knoetze and Sons
1970 (3) SA 264
(AD) at
270E.
[12] A person who has spent money or done work on another person’s
property generally has a right of retention over that
property,
operating against the entire world. This right may be either a real
lien, a salvage and improvement lien, or an enrichment
lien. The lien
enables the retentor to retain possession of the property in question
until the expenditure on the property has
been compensated. See
Syfrets Participation Bond Managers Ltd v Estate and Co-operative
Wine Distributors (Pty) Ltd
1989 (1) SA 106
(W) at 109H.
[13] A lien for the recovery of necessary expenses is traditionally
called a salvage lien or a lien for repairs, while the one
for the
recovery of useful expenses is termed an improvement lien. If
successfully raised, the owner may not recover possession
of the
property from a person who is lawfully in possession and who has an
underlying valid enrichment claim, unless and until
the defendant has
been compensated. See
Singh v Santam Insurance Ltd
[1996] ZASCA 92
;
1997 (1)
SA 291
(SCA).
[14] Most importantly, a lien does not entitle the possessor the
use of the object: he or she is entitled to hold it as security
only. Thus a lien provides a dilatory defence against a
rei
vindication
and would not enable the first respondent to claim
ownership to the property.
[15] To successfully raise the defence of a lien, the defendant must
allege and prove:
lawful possession of the object;
that the expenses incurred were necessary for the salvation of
the thing or useful for its improvement;
the actual expenses and the extent of the enrichment of the
plaintiff. Both have to be given because the lien covers the lesser
of the two amounts only;
that the plaintiff’s enrichment is
iniusta
(unjustified); and
that there was no contractual arrangement between the parties
(or a third person) in respect of the expenses.
See
Wynland Construction (Pty) Ltd v Ashley-Smith and Smith
1985 (3) SA 798
(AD);
Buzzard Electrical (Pty) Ltd v 158 Jan
Smuts Avenue Investments (Pty) Ltd
1996 (4) SA 19
(SCA);
McCarthy Retail Ltd v Shortdistance Carriers CC
2001 (3) All
SA 236
(A);
2001 (3) SA 482
(SCA).
[16] The general principle that applies to (real) security that in
the absence of an agreement to the contrary, the secured party
is not
permitted to use the encumbered asset for his or her benefit, also
applies to liens. See
Rekdurum (Pty) Ltd v Weider Gym Athlone
(Pty) Ltd t/a Weider Health and fitness Centre
1997 (1) SA 646
(C) 654A-C
[17] In my view the improvement lien raised by the first respondent
does not constitute a valid defence for the following reasons:
17.1 It is clear from the annexures which the first respondent
attaches as alleged proof of monies spent that all alleged purchases
were made following the applicant’s appointment as the executor
of the estate and following been informed that she is not
the owner
of the property in terms of the
Intestate Succession Act. In
spite
of being informed that she will have to vacate the premises, or
alternatively purchase the premises at a market-related price,
the
first respondent continued to effect renovations to the property.
The first respondent alleges that she has an enrichment claim
against the estate for R70 000,00. However, whilst alleging that the
property’s true value is R75 000,00, she then alleges
that her
improvements are worth R70 000,00. Accordingly, it remains unclear
how the estate has been enriched and for what amount.
In any event,
the granting of the relief on the notice of motion does not
extinguish her enrichment claim against the estate,
if she indeed has
such a claim; and
Most importantly, the first respondent’s occupation
of the
property is without the executor’s permission and is unlawful.
As such, the first respondent is precluded from using the
property
for her own benefit while asserting her so called defence of an
improvement lien.
[18] In case I am wrong in my finding as aforesaid, and assuming that
the first respondent does have a valid improvement lien and
is thus
entitled to retain possession or occupation of the property until she
has been duly compensated for her expenses, the applicant
has
furnished security to the first respondent for any enrichment lien
successfully proven within the prescribed time limits in
terms of the
Uniform Court Rules and subject to the court granting an eviction
order against her. The security provided is a Hyundai
i10 motor
vehicle, 2010 model with registration letters and numbers ZSD 369 GP.
[19] It is trite law that the owner of the property which is
subject to a right of retention, may defeat the lien by furnishing
adequate security for payment of the debt secured. See Hochmetals
Africa (Pty) Ltd v Otari Mining Co. (Pty) Ltd
1968 (1) SA 571
AD at
582 and
Astralita Estates (Pty) Ltd v Rix
1984 (1) SA 500
(C)
at 503D.
[20] The mere offer or giving of security by the owner, does not,
however, confer any right of possession to the owner, but the
court
may, in its discretion, order cessation of possession against
provision of security. See
Mancisco and Sons CC (in liquidation)
v Stone
2001 (1) SA 168
(W) at 174H. Whether a court will
exercise its discretion to order restoration of the property to its
owner depends on the particular
facts of each case. Tindall J
expounded this principle as follows in
Spitz v Kesting
1923
WLD 45:
“
The court, in exercising its discretion, will have regard
to what is equitable under all the circumstances, bearing in mind
that
the owner should not be left out of his property unreasonably
and on the other hand should not be given possession if his object
is, after getting possession, to delay the claimant’s recovery
of expenses.
”
[21] In
Mancisco and Sons CC (in liquidation) v Stone (supra)
at 175A-C 176C-D a full bench held that, in exercising its
discretion, the court will not make an order conferring on the owner
a greater right of possession than he has in terms of the law, nor
diminish the lien holder’s right of retention, i.e. by
ordering
the furnishing of such substituting security for less than the amount
of the detentor’s claim. The equitable nature
of this process
of substitution of security for the lien in question is evidenced by
the fact that the court must seriously consider
any objection raised
by the detentor on the one hand, while on the other hand assessing
the
bona fides
of the lienholder and the cogency of his or her
evidence in respect of the circumstances that allegedly caused the
relationship
of lienholder
vis-à-vis
owner, as well as
the extent of the claim protected by the lien.
[22] The applicant has failed to make the necessary allegations to
uphold the alleged defence of an improvement lien. Accordingly
the
defence does not pass muster.
[23] The deceased died in August 2005 and clearly the first
respondent’s intrangisence has affected the winding-up of the
deceased estate. The intestate heirs are being prejudiced for as
long as first respondent remains in unlawful occupation of the
property.
[24] The first respondent is currently employed as a cashier and as
she has offered to purchase the property for R75 000,00,
it is clear
that she cannot by any means be described as a poor and a needy
person. She is the sole resident at the property and
her two
children have reached the age of majority. The court is satisfied
that all the necessary requirements for her eviction
from the
property in terms of the
Pie
Act, have been met. The court
will provide her with sufficient time to seek suitable alternative
accommodation.
[25] I am satisfied that the applicant is entitled to the relief
that he seeks.
[26] In the circumstances I make the following order:
1. The security provided by the applicant dated 30 August 2011 is a
valid and sufficient security.
2. The first respondent and any parties occupying and claiming
occupation under or through her shall be evicted from the residential
premises, the buildings erected on and the immovable property
described as Erf 306 Actionville, Extension 2 Township, and commonly
known as 306 Patel Street, Actonville.
3. The first respondent and any parties occupying and claiming
occupation under or through her are directed and ordered to vacate
the property within six (6) months after the service on her of the
aforesaid eviction order.
4. In the event of the first respondent and/or any party occupying
and/or claiming occupation under or through her failing and/or
refusing to vacate the property on or before the date or period
ordered in paragraph 3 above, that the Sheriff of the above
honourable
court is directed, authorised and empowered to:
4.1 enter onto the immovable property and carry out the aforesaid
eviction order and remove from the property all persons occupying
the
property within one week after the date or period ordered in respect
of paragraph 3 above alternatively as soon as reasonably
possible
thereafter;
4.2 take such steps as may be necessary to prevent the re-occupation
of the buildings erected on the property and/or the property;
4.3 take such steps as may be necessary to immediately seal all
entrances to the buildings erected on the property as well as to
the
property itself in order to prevent the re-occupation thereof;
4.4 that the Sheriff of the above Honourable Court is directed,
authorised and empowered to enlist and engage the services and
assistance of any person or persons he or she considers necessary,
expedient or desirable, including but not limited to the South
African Police Services, to assist him in carrying out the order as
set forth above.
5. The first respondent is ordered to pay the costs of the
application.
_____________________________
B H MBHA
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL FOR APPLICANT :M STRYDOM
INSTRUCTED BY
…..
:ABBA PARAK INC
….............................................................................
ATTORNEYS
COUNSEL FOR 1
ST
RESPONDENT
................
:C GORDON
INSTRUCTED BY
....................................................
:MF
MARTINS COSTA
…...............................................................................
ATTORNEYS
DATE OF HEARING
…...........................................
:31
AUGUST 2011
DATE OF JUDGMENT
............................................
:23
SEPTEMBER 2011