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2023
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[2023] ZAFSHC 388
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Oosdeel Saalperdstoet 2 (Pty) Ltd v Bernardo and Others (5702/2022) [2023] ZAFSHC 388 (5 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number 5702/2022
In
the matter of:
OOSDEEL
SAALPERDSTOET 2 (PTY) LTD
Applicant
and
JACOBUS
JOHANNES BERNARDO
First
Respondent
ELIZABETH
BERNARDO
Second
Respondent
ANY
AND ALL UNIDENTIFIED OCCUPIERS,
OCCUPYING
PORTION 1 AND THE REMAINDER
OF
THE FARM MERIBA 1042, DISTRICT
BLOEMFONTEIN,
FREE STATE PROVINCE
Third
Respondent,
MANGAUNG
METROPOLITAN MUNICIPALITY
Fourth
Respondent
CORAM:
NAIDOO,
J
HEARD
ON:
23 MARCH 2023
DELIVERED
ON: 5 OCTOBER 2023
JUDGMENT
[1]
This is an application for the eviction of the first, second and
third respondents
from a farm owned by the applicant. The applicant
applied in terms of section 4(2) of the Prevention of Illegal
Eviction from and
Unlawful Occupation of Land Act 19 of 1998 (PIE).
Leave was granted by this court on 24 November 2022 to serve the
papers in this
matter upon the respondents. This was done, and the
respondents opposed the application. Before me is Part B of the
application,
seeking the eviction of the first, second and third
respondents. Adv S Grobler SC represented the applicant and Adv J Els
represented
the first to third respondents. I will refer to the first
and second respondents individually as the “first respondent”,
“the second respondent” or collectively as “the
respondents”. The third respondent appear to be the two
adult
sons of the first and second respondents, who are allegedly students.
The fourth respondent, which was established in terms
of the
constitutionally mandated
Local Government: Municipal Structures Act
117 of 1998
, did not participate in these proceedings as the
application was served on it merely to give it notice thereof.
[2]
As a preliminary issue, I deal with the application for condonation
brought by the
respondents for the late filing of their Answering
Affidavit. The notice to oppose the application was filed on 14
December 2022.
Given the
dies non
which ran from 21 December
2022 to 7January 2023, in terms of the provisions of Uniform
Rule 6
,
the respondents should have filed their Answering Affidavit on 25
January 2023. The respondents allege that due to a miscalculation
by
their Senior Counsel as to the date for filing of the Answering
Affidavit, the latter was not drafted timeously. They were only
able
to file the said affidavit on 15 February 2023. The respondents
applied for condonation for such late filing and sought an
order
extending the date for filing it to 15 February 2023. There was no
opposition to the condonation application. The court considered
it to
be in the interests of justice as well as the expeditious
finalisation of the matter to grant condonation, as sought by the
respondents. The respondents are to pay the costs of such condonation
application.
[3]
The applicant’s case is that it concluded a written agreement
with the respondents,
in October 2020, for the sale of a farming
entity as a going concern, which conducted business from the
properties known as Portion
1 of the Farm Meriba1042, district
Bloemfontein, Free State Province, and Remainder of the Farm Meriba
1042, district Bloemfontein,
Free State Province (collectively
referred to as “the property”). The agreement included
the sale of the property,
pivots and irrigation system, and the full
purchase price of R5 350 000.00, excluding VAT, was payable
within five years
from the date of signature of the agreement. It was
agreed that the first and second respondents would take occupation of
the property
on 1 November 2020.
[4]
The further agreement between the parties was that the respondents
would pay occupational
rent to the applicant on 1 December 2020 in
the amount of R 6 010.23 and on 1 December 2021 in the amount of
R345 184.93.
Thereafter occupational rent would be paid annually
until date of transfer and registration of the property in the names
of the
respondents. Upon taking occupation, the respondents would be
liable for payment of all expenses in relation to the property, which
expenses included property taxes, water and electricity consumption
charges.
[5]
The parties also agreed that the respondents would provide the
applicant with a certificate
of compliance, issued by an accredited
electrician, in respect of the electrical connections on the
property, before 30 November
2020. In the event of the respondents
breaching any term of the agreement and failing to fulfil their
obligations in terms of the
agreement, the applicant would be
entitled to give the respondents seven days’ notice to remedy
such breach. Should they
thereafter fail to remedy the breach, the
applicant would be entitled to cancel the agreement forthwith and
obtain an order for
the eviction from the property, of the
respondents and any person or persons occupying the property through
them.
[6]
The applicant complied with the agreement and gave the respondents
occupation of the
property on 1 November 2020, and they are still in
occupation thereof. The respondents failed to pay the occupational
rent due
on 1 December 2021 and to provide the electrical certificate
in terms of the agreement. The applicant’s attorneys,
consequently,
addressed a letter of demand to the respondents in
March 2022, giving them seven (7) days to remedy the breach. The
respondents
did not remedy their breach of the contract but instead,
responded by demanding that the applicant remedy its breach of the
agreement
and stating that any cancellation of the agreement is
disputed. The applicant avers that it had by this stage already
complied
with all its contractual obligations in terms of the
agreement.
[7]
The respondents failed to respond to further communication to the
respondents pointing
out that the agreement contained a “Voetstoots”
clause which was binding on the respondents. The applicant set out a
detailed exposition of the communications and negotiations between
the parties where the terms of the agreement were re-negotiated,
leading to the signature of the agreement between the parties in
October 2020. The applicants thereafter cancelled the agreement
in
writing addressed to both the respondents and their attorneys, and
demanded that the respondents vacate the property. When they
failed
to do so, the applicant launched court proceedings for the eviction
of the respondents and all who occupy through them.
[8]
The respondents’ case is that they entered into the agreement
for the purchase of
the property because of the misrepresentations
made to them by the agents/representatives of the applicant, with
regard to electrical
connections and supply to the property, as well
as the water capacity of the boreholes in relation to the irrigation
systems on
the farm. They further allege that the infrastructure on
the property was so poor that they spent in excess of R1 000 000.00
in repairs to get the property into some semblance of working order.
As a result, they have a right of retention, as they acquired
a
salvage and improvement lien on the property. The respondents
attached certain documents to their Answering Affidavit which they
allege to be the expenses they incurred in restoring the property,
the content of which is disputed by the applicants. I will deal
further with this aspect later.
[9]
With regard to the cancellation of the agreement, the respondents
admit receipt of the letter
notifying them of the cancellation, but
deny the content thereof, namely, that the agreement is cancelled,
that they do not have
a right to occupation of the property or to
continue farming activities thereon, and are required to vacate the
property within
thirty days. They advance the reason for such denial,
in the Answering Affidavit, to be what they believe to be their right
of
retention on account of the substantial amount of money they spent
to repair the property. They allege further that they have the
right
of occupation while the contractual dispute is being resolved.
[10]
The issues for this court to decide are whether:
10.1 the
contract between the parties has been cancelled;
10.2 the
respondents have a right of retention over the property;
10.3 the respondents
should be evicted from the property.
[11]
It is common cause or not in dispute between the parties that
11.1 the
parties entered into the contract of purchase and sale in respect of
the property;
11.2 the
respondents took occupation of the property on 1 November 2020;
11.3 the
respondents were liable in terms of the contract to pay occupational
rent as set out in the contract;
11.4 the
respondents paid occupational rent for December 2020 but failed to
pay any occupational rent from December
2021 to date.
11.5 the
contract contains a “voetstoots” clause.
[12]
The law relevant to this matter has been comprehensively dealt with
in our case law over many
decades. I will mention those matters which
succinctly deal with issues relevant to the present matter. The
matter of Business
Aviation Corporation (Pty) Ltd and Another v
Rand Airport Holdings (Pty) Ltd 2006(6) SA 605 (SCA)
dealt with
the issue of leases in respect of urban properties and also made
pronouncements concerning rural or agricultural land.
The case of
Business Aviation
concerned a lease of urban property where
the lessee made improvements to the property. When the lessor
attempted to evict the
lessee, the latter relied on an enrichment
lien as a result of money it had expended on necessary and useful
improvements to the
property. The lessor countered the lessee’s
defence by contending that the lien relied upon by the lessee had
been abolished
by the two
Placaeten
promulgated by the Estates
of Holland in the 17
th
century.
[13]
The court in
Business Aviation
meticulously traced the history of our law in respect of urban and
rural leases, and found that certain principles of the
Placaeten
were incorporated into our law. Article 10 of the
Placaeten
was most relevant for the matter considered by the court, which cited
the translation of article 10 b
y
W E Cooper
Landlord
and Tenant
2
ed p 329 note 3 thus:
‘
Provided,
nevertheless, that whenever the owner of any lands, takes them for
himself, or lets them to others, he is bound
to pay the old lessee,
or his heirs, compensation for the structures, which the lessee had
erected with the consent of the owner,
as well as for ploughing,
tilling, sowing and seed corn, to be taxed by the court of the
locality, without, however, the lessees
being allowed to continue
occupying and using the lands, after the expiration of the term of
the lease, under the pretext of (a
claim for) material or
improvements, but may only institute their action for compensation
after vacating (the lands).’
[14]
Therefore, the principle applicable in our law, in terms of the
Placaeten
, does not allow for a retention Iien in respect of
rural land. However, the lessee may claim compensation for
improvements after
he vacates the property. With regard to
improvements, it is well established in our law that such
improvements must have been necessary
and useful and were incurred to
preserve the property. The lessee may be compensated in the amount by
which the value of the property
had been increased. It goes without
saying therefore, that the lessee must prove such expenses and give a
detailed account thereof.
[15]
In the matter of
Rhoode v De Kock and Another 2013(3) SA 123
(SCA),
which both parties referred to in their Heads of Argument,
the court dealt with an enrichment lien. The respondent sold a
property
to the appellant. The latter made payment in terms of the
contract, which later turned out to be void. The appellant also
claimed
to have made certain improvements to the property and sought
to enforce an enrichment lien against the respondent when the latter
tried to evict him from the property. The appellant did not properly
quantify his claim for enrichment. The court held at para
17 that:
“
The
present is not a case where it is common cause or cannot on the
papers be disputed that the property has been increased in value,
and
there is a disagreement as to the amount. In such a case an owner
seeking possession of his/her property would usually tender
security
such as a guarantee from a financial institution for the amount by
which the property will in due course be found to have
been increased
in value, up to the amount claimed by the person asserting the lien
(or such lesser amount as the court might be
able to determine on the
papers as being the maximum amount for which the lien is
maintainable), and ask a court to exercise its
discretion to order
delivery of the property to him/her against provision of such
security:
Hochmetals
Africa (Pty) Ltd v Otavi Mining Co (Pty) Ltd
1968
(1) SA 571
(A)
at 582C-F and cases there quoted. Here, there is not even a prima
facie case for the respondents to meet. The appellant’s
case
amounts to this: ‘I have made alterations and additions to the
respondents’ property. I have produced no acceptable
evidence
to establish whether the property has been improved in value, nor
have I disclosed what I expended in money or materials.
But I wish to
resist an application for ejectment until compensated for an amount
that I have not begun to quantify.’ To
enforce a lien in these
circumstances would in my view be to allow an abuse of the process of
the court.
[16]
In the present matter, I earlier indicated that there were protracted
negotiations between the parties in
connection with the terms of the
contract, before it was finally signed by all parties at the end of
October 2020. The respondents
were, at the time, represented by a
different firm of attorneys (Graham Coetzee Attorneys) to the firm
currently on record (Lovius
Block Inc). The letter I mentioned
earlier was dated 28 March 2022 and was sent from the applicant’s
attorneys (Roussouws
Attorneys), then representing the applicant, to
Lovius Block Inc, setting out a detailed exposition of the
negotiations between
Graham Coetzee and Roussouws Attorneys, which
led to the signing of the agreement. In a letter dated
24 March
2022
, Lovius Block Inc responded to the letter from Roussouws
Attorneys dated
28 March 2022,
and refers to a letter of
demand sent to the applicant’s attorney, calling on the
applicant to remedy its breach of the contract
between the parties
and stating that the respondents elect to enforce the agreement. No
explanation was tendered for this discrepancy
in the dates of the
respective letters. It is only in Answer that a letter dated
24
March 2022
, made an appearance as an annexure to the Answering
Affidavit, setting out the alleged misrepresentations made by the
applicant,
the cost of repairs to infrastructure, and demanding
payment of such amounts to the respondents.
[17]
The respondents elevate the alleged misrepresentations to fraudulent
misrepresentations and allege that they have
a right to occupy the
property until the contractual dispute between the parties is
resolved. No mention of such misrepresentations
was made at any stage
prior to the letter written by Lovius Block Inc allegedly on 24 March
2022. It is also noteworthy that the
respondents allege that due to
such misrepresentations they found it impossible to perform in terms
of the contract. Yet the respondents
took no steps at any stage after
these defects were discovered, to complain to or draw it to the
attention of the applicant,
or to attempt to cancel the contract on
the ground of impossibility to perform in terms thereof. The
respondents also seem to have
paid the negotiated reduced
occupational rent for approximately one year before they ceased
payments in December 2021.
[18]
The correspondence between Roussouws Attorneys and Graham Attorneys
demonstrates that the respondents were
well aware that there would be
large costs involved in repairing the pivots necessary for
irrigation, as such had not been used
for nine months or more. As a
result, Coetzee proposed that the occupational rent be reduced and
the occupational rent for the
succeeding years were re-negotiated
accordingly. It is also clear that the issue of electricity to the
pivots and the delivery
of water from the boreholes were recognised
as problems which required attention and required the necessary
certificates, which
certificates the applicant was required to
provide. The negotiations in connection with the various items for
repair and payments
spanned the period 9 to 28 October 2020. It was
also clear that more than one inspection of the property was
undertaken by the
first respondent. The costs of various repairs to
the pivots as well as the possible shortage of water from certain
boreholes were
discussed. The costs of certain repairs were discussed
and the question was asked whether the purchase price would
accordingly
be reduced. Such negotiations continued, from which it is
evident that the respondents and their attorney at the time, were
fully
aware of the non-functioning pivots, the problems with the
boreholes, electricity and other infrastructure problems, which
required
attention. The respondents were also fully alive to the
costs involved and negotiated the terms of the contract accordingly,
as
the first respondent was present and fully aware of what the
problems were and what needed to be done.
[19]
The respondents also accepted that they would pay the costs involved
in repairing the property. It bears
mention that after the testing of
the boreholes, Graham Attorney said the following in one of the
letters dated 28 October 2020:
“
Die sertifikate
vir waterlewering van die boorgate wat wel getoets is word verlang.
Die res van die probleme rakende boorgate wat
skoongemaak moet word,
word aanvaar en sal die koper daarna omsien. Die feit dat daar nie
voldoende waterkwota is om die spilpunt
by die huis te bedryf word
voorgestel dat die koopprys net verlaag word na R5 350 000.00.
Loosely translated it reads:
“
The certificates
for water delivery from the boreholes that have already been tested
are awaited. The rest of the problems with
regard to boreholes that
must be cleaned are accepted and will be attended to by the
purchaser. As a result of the fact that there
is insufficient water
to run the pivots at the house, it is proposed that the purchase
price be reduced to R5 350 000.00”.
[20]
That same day, the applicant’s attorney wrote to Graham Coetzee
enquiring if he (the applicant’s
attorney) understood correctly
the various proposals made by the respondents, namely:
·
The purchase price is reduced to R5 350 000.00 plus VAT
·
The occupational rent be reduced by an amount equal to the quotation
for the CoC plus
the costs of the stolen cable
·
Then Kobus (first respondent) will purchase voetstoots with
everything in the condition
in which it is now
·
The certificates for the (bore) holes which have been tested will be
given to the purchaser
but they play no role. The seller does not
guarantee that the boreholes will yield the water as reflected on the
certificates.
(my translation)
[21]
Graham Coetzee responded the same day advising that the matter as set
out by the applicant’s attorney
is accepted. The latter then
forwarded on the same day (28 October 2020) to the first respondent
and his attorney the revised contract,
with the request that they
read the whole contract. The contract was signed by the parties the
next day, 29 October 2020. The contract
contained the voetstoots
clause, which was also mentioned in the negotiations and which was
accepted by the first respondent. In
terms of the voetstoots clause,
the respondents acknowledged,
inter alia
, that they inspected
the property and were given the opportunity to familiarise themselves
with the nature and condition thereof,
they are satisfied therewith
and purchase the property voetstoots. The respondents further
acknowledged that no representations
were made by the applicant which
induced them to purchase the farming operation.
[22]
In my view, the respondents, particularly the first
respondent, signed the contract with his eyes wide open and
after
negotiating terms to suit them. He was fully aware of the condition
of the property and that it had not been operated for
approximately
nine months prior to his purchasing same. He was aware of and
accepted responsibility for all rehabilitation that
was needed for
him to farm the land. On his own version, he commenced farming
operations and speaks of the farm yielding a smaller
crop than he
anticipated. He has made no mention whatsoever of the income he has
derived from the property. He has acknowledged
that he has not paid
any amount towards occupational rent, as he was obliged to do in
terms of the contract, and is effectively
occupying the property free
of charge, while earning an income from it. He moves for the court to
permit him to continue doing
so. This flies in the face of the
well-established principle that a person is not permitted to use the
asset or property over which
he has a lien. The respondents are
clearly using the property and making a living from it.
[23]
I deal now with the purported expenses that the respondents allegedly
incurred to rehabilitate the property,
and based on which, they claim
to have a right of retention over the property. There are two
documents attached to the Answering
Affidavit as annexure JJB3 and
JJB4. JJB3 is a quotation from an entity called P & R Pumps CC
and is dated 26 September 2022,
almost two years after the
respondents took occupation of the property. There is no further
evidence or explanation in respect
of the items listed on the
quotation. It is also not clear whether the work quoted for was
actually done. The respondents rely
on this document to support their
contention that they had to undertake extensive repairs to
infrastructure as a result of misrepresentations
made by the
applicant or its representatives. I am constrained to attach any
significance to this document. It is a quotation for
items and labour
for repairs to what appears to be a dam and pivots. It is not certain
if this quote relates to the property which
is the subject matter of
this case. If it is, then it is also entirely possible that such
repairs were necessitated by the respondents’
farming
activities for almost two years since they took occupation of the
property, and not for repairs to infrastructure when
they took
occupation in November 2020.
[24]
JJB4 is purportedly a calculation by the accountant of the
respondents indicating the amounts spent by the
respondents in order
to get the infrastructure on the property semi-operational. It is a
thirteen-page typed document, which does
not indicate who the author
is or where it emanates from. While the items and expenses listed
thereon span the period October 2020
to December 2022, the entries do
not follow chronologically, the first entry on the document being for
18 December 2020, while
later in the document appear entries for
November 2020. It is also evident that many entries for 2021 appear
before items dated
2020. A perusal of the document, especially for
the period November 2020 to December 2021 appear to be running
expenses associated
with farming. There are items listed as “Repairs
and Maintenance”, but it is unclear what such items relate to.
There
are also numerous items listed as “General Farming
Expenses”. There is no explanation of these expenses, either
from
the respondents or the accountant who purportedly compiled the
document.
[25]
There were other items that do not appear to be related to farming or
infrastructure rehabilitation, for
example a listing itemised on 24
June 2021as “Entertainment Expenses” and the service
provider is listed as “Dischem
Langenhoven”, which is
known as a franchise chain store in South Africa. Another item listed
as “Repairs and Maintenance”
on 19 March 2021, names the
service provider as “Tochnell”, which is known as a
jewellery store in the Bloemfontein
area. These and numerous other
items were items brought to the court’s attention in the
applicant’s Heads of Argument,
and by Mr Snellenburg during his
oral argument when he asserted that this is a document which does not
advance the case of the
respondents. He made the point that it is
impossible to determine what expenses the respondents incurred, if
any, in rehabilitating
or repairing the property. I agree. It
appears, on the face of it, that whatever expenses were incurred were
largely day-to-day
running expenses related to the respondents’
farming activities. I am unable to place any reliance on this
document as substantiation
for the respondents’ contention that
large amounts of money were spent to improve the property. This
latter assertion is
not apparent from the papers
[26]
If the respondents were able to substantiate and show that they did,
in fact, expend monies in a particular
amount, it may have enabled
the court to exercise its discretion and direct that the applicant
furnish security in that amount
before it took possession of the
property. I also mention that the respondents did not react or
respond to the letter dated 28
March 2022 sent to their attorney, in
which the applicant sets out the details of the negotiations leading
to the signing of the
agreement. It was well within their power to
have done so and to have raised the issue of the applicant’s
misrepresentations.
The respondents, however, failed to do so and
have not grappled with the issues regarding the re-negotiation of the
terms of the
agreement set out in the letter of 28 March 2023. It
would have assisted the court greatly if they had. As it stands, it
is difficult
to avoid the perception that the respondents
opportunistically raise the issue of misrepresentations by the
applicant, in order
that they may delay their eviction from the
property.
[27]
It is clear that the respondents were actively involved in
re-negotiating the terms of the contract in view
of the costs of
rehabilitating the property. They confirmed the applicant’s
query and exposition of what it understood to
be the terms the
respondents sought in order for them to sign the agreement. In my
view, it its clear that no warranties or misrepresentation
were made
by the applicant and such of the expenses that may have been incurred
by the respondents, are costs they were aware of
before they signed
the agreement and accepted that they would have to pay those costs. I
reject the assertion that such costs arose
as a result of
misrepresentations by the applicant.
[28]
It is well established in our law that in order to prove a lien, the
essential requirements are that the
possessor must show that his
possession is lawful, that the expenses he incurred were necessary
for the preservation of the property,
or were useful for improving
the property. He must prove his actual expenses and show the extent
of the owner’s enrichment.
He must also show that such
enrichment is unjustified. The respondents in the present matter have
not met these requirements. They
breached the agreement by failing to
pay the occupational rent as agreed upon. The applicant complied with
the provisions of the
agreement by giving the requisite notice to the
respondents to remedy their breach, which the respondents failed to
do. The applicant
cancelled the agreement as it was entitled to do in
terms of the agreement. The claim of the respondents in respect of a
salvage
and improvement lien has not been established. Such a
defence, in fact, flies in the face of the agreement between the
parties
as indicated in the applicant’s letter dated 28 March
2022. From the papers, it appears that such expenses that may have
been incurred by the respondents were what they had contracted for,
alternatively were running expenses in respect of the respondents’
farming activities, and were not incurred as a result of
misrepresentations made by the applicant.
[29]
I pause to mention that the respondents denied they were lessees and
argued that they were purchasers. Therefore,
the case of
Business
Aviation
did not apply in this
matter, as that case dealt with a lessee. Where a purchaser of
property agrees to pay occupational
rent pending registration of
transfer of the property into his name, he can only logically be
regarded as a lessee for the period
that he pays occupational rent.
It is common cause that the payment of occupational rent was a term
of the purchase and sale agreement,
and that clause 21 of the
contract makes provision for the consequences of the breach of any
term of the contract. The principles
expounded in the
Business
Aviation
case would in my view apply
to the respondents where they had failed to pay occupational rent.
The respondents would not
have acquired a lien over the property,
which is rural or agricultural land,
[30]
It is further well established in our law that a lessee may claim
compensation for improvements he had made
to the property, after he
vacates the property. The respondents allege that they have already
instructed their attorney to issue
summons against the applicant for
repayment of the expenses they allegedly incurred in improving the
property. It would then be
best for the court hearing that matter to
deal with the issue of expenses. The respondents cannot in the
interim expect to continue
in their occupation of the property
pending the resolution of that dispute.
[31]
The respondents re-negotiated various terms of the agreement to suit
them during the three weeks preceding
the signing of the agreement.
One of the terms they agreed to was the voetstoots clause. This was
communicated to the applicant’s
attorney by the Graham Coetzee,
who represented the respondents at the time. I have set out the
import of the voetstoots clause,
and even if I am wrong on the aspect
of the lien, the voetstoots clause, considered in the light of all
the evidence before me,
puts paid to the allegations of
misrepresentation on the part of the applicant, and much less
fraudulent misrepresentations.
The respondents are bound
thereby and, from what I have set out, it is clear that the reason
the respondents agreed to the voetstoots
clause is that they had
thoroughly familiarised themselves with the nature and condition of
the property and its infrastructure,
and re-negotiated the payments
terms, taking into account the capital they would have to outlay in
order to farm on the property.
[32]
The dictum of the court in the Rhoode matter in respect of a lien,
which I set out in para [15] above is
apposite and I align myself
therewith. The remarks of the court at para [73], in
Gouws and
Another NN) v BPH Petroleum (Pty) Ltd
2020 (4) SA 203
(GP)
succinctly describes the situation that pertains to the present
matter:
“
It
follows that the respondent has not established that it has a lien
over the property. Indeed, the claim of lien in my opinion
is of the
same character as the other defences raised by the respondent: not
sincerely advanced but merely intended to use the
law's delays to the
respondent's own commercial advantage.”
[33]
In summary therefore, my view is that the applicant validly cancelled
the agreement between it and the respondents,
effectively rendering
unlawful the latter’s continued occupation of the property. The
respondents have not quantified the
amounts incurred by them to
support their claim to have acquired a lien over the property, nor
have they specified that those amounts
were necessary to preserve the
property or useful in improving the property. As I alluded to
earlier, it has become a principle
of our law that no right of
retention exists over rural land, If the respondents persist in their
claim for compensation, they
are at liberty to pursue such claim
after they vacate the property. The voetstoots clause further
militates against the success
of the defences raised by the
respondents.
[34]
In the circumstances I make the following order:
34.1 The
first and second respondents are declared to be unlawful occupiers of
Portion 1 and the Remainder of the farm
Meriba 1042, district
Bloemfontein, Free State Province;
34.2 The
first and second respondents and all other persons occupying the
property through them are ordered to vacate
the property by no later
than 12h00 on 30 November 2023;
34.3 The
first and second respondents and all other persons occupying the
property through them are ordered to remove
all movable property
belonging to them from the property by no later than 12h00 on 30
November 2023;
34.4 In the
event of the first and second respondents or any of the occupiers
occupying through them, failing to comply
with this order, the
Sheriff of the court is authorised and directed to evict them, and
remove any movable property belonging to
them from the property
forthwith;
34.5 The
first and second respondents are ordered to pay the costs of this
application jointly and severally, the one
paying the other to be
absolved.
S
NAIDOO J
On
Behalf of the Applicants:
Adv S
Grobler SC
Instructed
by:
Peyper
Attorneys
101
Olympus Drive
Helicon
Heights
Bloemfontein
(Ref:
Ms S Pienaar)
On
Behalf of the Respondents:
Adv J
Els
Instructed
by:
Lovius
Block Attorneys
31
First Avenue
Westdene
Bloemfontein
(Ref:
JG Keyl/evd/J01823)