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[2010] ZAGPPHC 221
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Opperman v Stanley and Another (19539/2008) [2010] ZAGPPHC 221 (9 December 2010)
REPORTABLE
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: 19539/2008
DATE:
09/12/2010
IN THE MATTER BETWEEN:
JACOBUS JOHANNES
OPPERMAN
.........................................
PLAINTIFF
AND
GAVIN LLEWELYN
STANLEY
......................................................
FIRST
DEFENDANT
LIBRA MEASURING
INSTRUMENTS (PTY) LTD
......................
SECOND
DEFENDANT
JUDGMENT
MAKGOBA, J
[1] The
plaintiff instituted an action against the first and second
defendants seeking a declaratory order that certain fixtures,
namely
a weighbridge and two augers (“the impro
vements”)
installed by the first defendant on the plaintiff’s farm,
permanently form part of the plaintiff’s immovable
property.
[2] The second defendant
had no interest in the litigation and did not defend the action.
In
his plea the first defendant denies that the weighbridge and augers
constitute “fixed improvements” or that he ever
had the
intention of permanently affixing these assets to the immovable
property of the plaintiff.
[3] The
plaintiff is the owner of the Farm Witpoort, Delmas. During October
2006 the plaintiff and first defendant entered into
a written lease
agreement in terms whereof the first defendant became the lessee of a
specific portion of the plaintiff’s
farm for an agreed period
of 7 (seven) years with an option to renew the lease agreement. The
main purpose for the lease was for
the first defendant to develop
that specific portion of the property into a grain storage facility.
The plaintiff was given an
option to, during the term of the lease
agreement, purchase shares in the business.
[4] The
written lease agreement contained
inter
alia,
the following clause which is
relevant to the present case:
“
3.
VERBETERINGE:
3.1 Die partye kom
ooreen dat die Huurder sekere vaste verbeteringe op die Eiendom sal
aanbring tydens die huurperiode, welke
verbeteringe aangebring sal
word ten einde die besigheid te help vestig en te bedryf.
3.2 Toestemming tot
enige verbeteringe sal eers vanaf die Verhuurder verkry word.
3.3 Alle vaste
verbeteringe sal deel vorm van die Eiendom en die Huurder sal nie
geregtig wees om op enige kompensasie daarvoor
na afloop van die
huurooreenkoms nie.”
[5] The
first
defendant effected various
improvements to the specific portion of the leased property by
inter
alia
fencing it off, installing a
weighbridge and two augers and building two small offices on the said
property.
[6] Unfortunately the
business of the grain storage facility was never realised. The first
defendant then tried to remove the weighbridge
from the property
without the knowledge of the plaintiff.
[7] The
issue before me is whether the improvements had become part of the
plaintiff’s property through
accessio.
If so, then clause 3.3
of the lease agreement as set out in paragraph [4] above is
applicable and the first defendant is not entitled
to the removal
thereof or to compensation thereon.
[8] The
law regarding acquisition of property and the subsequent ownership
thereof remains widely debated (among legal academics)
and a much
litigated topic spanning over a long period in our courts. Through
the years the courts and academics attempted to
formulate and
reformulate “ tests or guidelines” in an attempt to
provide clarity as to how to determine whether a
movable thing that
is fixed to an immovable thing looses its identity and therefore
becomes part of the property of the owner of
the immovable thing.
[9] In
Konstanz Properties (Pty) Ltd v Wm
Spilhaus en Kie
(WP) Bpk
[1996] ZASCA 28
;
1996 (3) SA
273
(A) it was held that as to the issue of
accessio
,
that whether a movable became a fixture by attachment depended on the
circumstances. The “new” approach was that
the
subjective intention with which the attachment was made (with the
emphasis on whether the intention had been that the attachment
should
be permanent) was decisive – the nature of the movable attached
and the manner of its attachment were as a matter
of degree merely
indicative of the intention with which it was attached.
[10] Nienaber
JA in the
Konstanz Properties
case
(
supra)
at
page 281 said:
“
Of
los goed deur aanhegting vas word, hang van omstandighede af. Geen
enkele maatstaf kan vir alle gevalle voorsiening maak nie.
Vandaar
dat Innes HR in die toonaangewende beslissing,
McDonald Ltd v
Radin NO and the Potchefstroom Dairies and Industires Co Ltd
1915
AD 454
te 466 eers beklemtoon dat “each case must depend on its
own facts”.
[11] The learned judge
summarized the “traditional” approach, (with reference to
the McDonald case) as follows:
“…
die
verskillende omstandighede ... wat normaalweg in ag geneem word, te
wete:
(a) Die gesteldheid van
die roerende saak wat aangeheg word- met die nadruk op sy
assimilieerbaarheid met die onroerende saak;
(b) Die wyse van
aanhegting- met die nadruk op die integrasie van die roerende saak
met die onroerende saak en die verwyderbaarheid
van die roerende saak
sonder beskadiging van die en of die ander;
(c) Die bedoeling
waarmee die aanhegting geskied- met die nadruk daarop of die
aanhegting beoog was om blywend te wees ...”
[12] In
the
light of the above exposition the legal principle can therefore be
laid down as follows: That the question whether an article
originally movable has become immovable through annexation by human
agency to realty depends upon the circumstances of each case.
The
elements chiefly to be considered are the nature of the particular
article, the degree and manner of its annexation, and the
intention
of the person annexing it.
See:
McDonald Ltd v Radin NO and the
Potchefstroom Dairies & Industries Co Ltd
1915 AD 454
Melcorp
SA (Pty) Ltd v Joint Municipal Pension Fund (Tvl)
1980 (2) SA 214
(WLD).
Unimark
Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd
1999 (2) SA 986
(TPD).
Compare
with:
Theatre Investments (Pty) Ltd and
Another v Butcher Brothers Ltd
1978 (3)
SA 682
(A).
[13] In the present case
there is evidence on record as to the nature of the improvements in
question.
The weighbridge consists
of three parts, namely (i) the top platform, (ii) the load cells with
bearings, electronics and software
and (iii) the concrete floor and
ramps on both sides of the platform.
The augers are two huge
steel contraptions, next to two loading/offloading platforms that are
affixed to the property (land) in
a brick dungeon approximately 1,5
metres deep.
[14] During
the trial I had the opportunity of looking at the photos of the
improvements in question and have satisfied myself as
to the nature
of the improvements as well as the manner of their annexation to the
immovable property.
It is significant to
note that in answer to the questions by the court the plaintiff
conceded that the weighbridge and the augers
are capable of being
removed and that they can be removed and installed at another place.
That they can be removed without any
damage to them to an extent that
they can still be utilised at another place.
The plaintiff’s
worry seems to be that it will cause him some expenses to
rehabilitate the portion of the land where the
improvements happened
to have been installed.
[15] The present case is
the one to be decided on its own facts, with a liberal sprinkling of
common sense, fairness and practicality.
The first defendant paid
for all the improvements including the fencing and office buildings
for which he does not lay any claim.
The principle of simple justice
between man and man should also come into play.
[16] My
observation of the weighbridge is that it consists of a metal
pressure plate laid on concrete pillars which sunk into the
ground.
The pressure plate and all of the other related items can be removed
without damaging or disturbing the property, that
is the land.
There
is no reason to believe that it cannot be removed without causing
irreparable damage to the property. It is a simple matter
of
unscrewing bolts, lifting metal structures and the filling of
possible holes where the foundation has been set. The removal
of the
two augers would also not cause any irreparable damage to the
property.
[17]
I come to the conclusion that the weighbridge and the two augers
cannot be described as immovable or fixed improvements as
envisaged
by the written lease agreement between the plaintiff and the first
defendant. In the circumstances the plaintiff is not
entitled to the
declarator he seeks in this matter.
[18]
The plaintiff's action is accordingly dismissed with costs.
EM
MAKGOBA
JUDGE
OF THE HIGH COURT
FOR
THE
PLAINTIFF:
ADV.
A
WILKINS
INSTRUCTED
BY:
BOSHOFF
SMUTS
INC
FOR
THE
FIRST
DEFENDANT:
ADV.
C
VAN
DER
MERWE
INSTRUCTED
BY:
CORNE
BOTHA
ATTORNEYS