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[2015] ZAGPJHC 235
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Mouton v Corporate Aids Services (Pty) Ltd (A3055/2015) [2015] ZAGPJHC 235 (13 October 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: A3055/2015
DATE: 13 OCTOBER 2015
In the matter between:
MOUTON, CHRISTIAAN
JOHANNES
.........................................................................
APPELLANT
And
CORPORATE AIDS SERVICES (PTY)
LTD
.............................................................
RESPONDENT
J U D G M E N T
WRIGHT J
1. The appellant and the respondent
concluded a written agreement on 17 August 2010. In terms of this
agreement the appellant bought
a piece of removable property from the
respondent for R1 500 000. The appellant paid a deposit of R80 000.
The appellant had to
pay the balance at R5 000 per month. A last
payment had to be made by 31 May 2012 of whatever amount was
outstanding at that date.
Clause 5.2 provided that the risk of profit
or loss in regard to the property rests on the appellant from date of
occupation. Under
clause 10.1 the appellant undertook to adhere to
and abide by the conditions of title of the property and the
requirements of any
servitude, town planning scheme as well as legal
requirements, proclamations and regulations binding the owner of the
property.
Under clause 10.2 the appellant could not, without the
respondent’s prior permission erect any buildings. Under clause
11.1
the appellant could not, without the respondent’s prior
written permission make any improvements to the property. Under
clause
11.2 the appellant is not entitled to any compensation for
improvements, brought about with or without the respondent’s
permission
“behalwe vir sover sy regte in hierdie verband deur
artikels 15[1] and 28[1] [a] [ii] van die Wet beskerm word.” I
take this as a reference to the
Alienation of Land Act 68 of 1981
.
2.
Section 15(1)
provides that, subject
to
section 15(2)
which does not have application in this case, an
agreement whereby a purchaser forfeits a claim for, amongst other
things improvement
which enhances the market value of the land and
which was effected by him or her with the express or implied consent
of the owner
or seller shall be of no force or effect.
3. With the written permission of the
respondent the appellant took occupation of the property. The
occupation date was 1 July 2010.
The appellant admits that he
breached the agreement in that he failed to pay at least part of the
purchase price by due date. The
respondent notified the appellant of
an intention to cancel the agreement unless the breach was rectified.
It was not and the respondent
purported to cancel the agreement.
Acting on this attempt at cancellation the respondent applied to the
Magistrate’s Court
seeking various relief including the
eviction of the appellant. The application was unsuccessful,
apparently on the ground that
the notice of cancellation did not
reach the appellant. The respondent launched a second application on
the same ground. The learned
Magistrate granted an eviction. That
decision is now before my learned Brother and I on appeal.
4. The appellant, conceding that he
breached the agreement and received notice to rectify the breach and
that he did not rectify
the breach, and conceding that he received
notice of termination, opposed the application on a number of bases.
Firstly, he alleged
an improvement lien over the property. Secondly,
he alleged that he was protected by the provisions of the
Extension
of Security of Tenure Act 62 of 1997
.
5. Assuming that the appellant spent
over R300 000 on erecting wooden structures on the property, in my
view the lien defence fails.
Prior to the conclusion of the agreement
on 17 August 2010 the respondent had given the appellant written
permission on 24 June
2010 to commence building the structures prior
to registration of the property into the name of the appellant. There
is no evidence
that the alleged improvements, even if they cost R300
000 increased the value of the property. The appellant seems to have
assumed
that spending money on the property necessarily increases the
value of the property by the same amount. If in fact, the value of
the property has increased there is no evidence to the extent of the
increase in value.
6. It is common cause that the
appellant proceeded to erect the wooded structures prior to any
building permission having been obtained.
As late as answering
affidavit stage in the present proceedings the appellant conceded
that he was still trying to get the necessary
permission from the
relevant municipality. Even if the structures have increased the
value of the land, the alleged lien is not
sought to be exercised in
circumstances where it is done so bona fide.
7. Given that the appellant in any
event concedes breach of the agreement and its subsequent
cancellation it is difficult to see
how the lien is exercised bona
fide.
8. The appellant, relying belatedly on
the
Extension of Security of Tenure Act made
a bald affidavit stating
that he is an occupier for the purposes of that Act. Under the
definition of occupier in
section 1
of the Act, a person who earns in
excess of a prescribed amount is not an occupier for the purposes of
the Act. It is common cause
that the prescribed amount is R5 000 per
month. The appellant made the bald allegation that he earned under R5
000 per month. In
further affidavits he sought to plead poverty
alleging that he did odd jobs for which he earned less than R5 000
per month. Nowhere
did the appellant explain how he would have paid
the purchase price on these earnings. In my view, the facts show
that, at least
for this reason, the appellant is not an occupier
under the Act and therefore the Act is not applicable.
9. I propose the following order.
Order:
1. The appeal is dismissed with costs
GC WRIGHT J
JUDGE OF THE HIGH COURT,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
NALANE AJ
I agree / disagree
On behalf of the Appellant: Adv HP
West
Instructed by: Locketts Attorneys
C/o Monte Coetzer Inc
011 492 1450
On behalf of the Respondent: Adv GH
Swanepoel
Instructed by: DF Oosthuizen Inc
011 673 4278/9
Date of Hearing: 13 October 2015
Date of Judgment:13 October 2015