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[2023] ZAFSHC 464
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CS Oosthuizen Boerdery CC v Radiant Hour Ministry International (NPC) (4261/2023) [2023] ZAFSHC 464 (30 November 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no:
4261/2023
In
the matter between
:
CS
OOSTHUIZEN BOERDERY CC
Applicant
(Registration
number: 1993/006738/23)
and
RADIANT
HOUR MINISTRY INTERNATIONAL (NPC)
Respondent
(Registration
number: 2013/000945/08)
CORAM:
PJJ ZIETSMAN AJ
HEARD
ON:
16 NOVEMBER 2023
DELIVERED
ON:
30 NOVEMBER 2023
Introduction
[1]
On 10 September 2014 the Respondent
purchase the property known as
Plot 1 Rocklands Agricultural Holdings, Bloemfontein (“the
property”) from the Applicant
in order to conduct its business
from the premises.
[2]
The written sale agreement contains
an entrenched formalities clause
and also stipulates that the Respondent shall not make any
improvements and/or additions to the
property without the prior
written consent of the Applicant.
[3]
When the Respondent failed to honour
the payment terms of the
agreement the Applicant proceeded to cancel the agreement and now
seeks an order to evict the Respondent
from the premises.
[4]
The Respondent opposes the application
on the basis that:
(a) The dispute
between the parties must be resolved by way of an alternative dispute
resolution process;
(b) The
parties verbally agreed to extend the time within which the purchase
price was to be paid; and
(c) The
Respondent relies on an improvement / enrichment lien.
Discussion
[5]
Mr Nkhahle who appeared for the Respondent
bravely tried to persuade
me to exercise my discretion and refer the dispute to mediation in
terms of Uniform Rule 41A(3)(b).
[6]
In support
for such contention Mr Nkhahle relied on the judgment of Daffue
J in
DIY
Superstores (Pty) Ltd v Kruger and others
[1]
.
[7]
It is not clear from the papers whether
the parties complied with the
procedural requirements of Uniform Rule 41A, but I was informed from
the bar that the parties indeed
complied with the rule and that the
Applicant is not in favour of mediation.
[8]
The dictum in
DIY Superstores (Pty) Ltd v Kruger and others
is
no authority for the proposition that the Court has a discretion to
direct a matter to mediation.
[9]
Rule 41A(3)(b) simply provides is mechanism
for a Court to direct the
parties to consider referring a dispute to mediation but it is still
open to the parties to then agree
to so refer the dispute to
mediation, or not.
[10]
The Respondent’s reliance on Rule 41A(3)(b) and
DIY
Superstores
is thus misplaced.
[11]
Even if I accept that I have an inherent discretion to direct
the
matter to mediation I would not have exercised my discretion in
favour of the Respondent because in
casu
the sale agreement is
cancelled and it is evident from the papers, and the argument in
court, that the Applicant has no intention
to reinstate the
agreement. I therefor see no prospects of success to direct the
parties to consider mediation where the Applicant
is clearly not in
favour of same.
[12]
The Respondent also relied on the alternative dispute resolution
clause contained in paragraph 35 of the agreement, however the said
clause deals with the alternative dispute resolution process
in terms
of the
National Credit Act, 2005
and since it is common cause that
the agreement between the parties is not regulated by the
National
Credit Act, the
Respondent’s reliance on clause 35 of the
agreement is likewise misplaced.
[13]
The defence that the payment terms in the written agreement
was
verbally amended was raised in the answering affidavit but it was not
advanced in the Respondent’s heads of argument
nor in argument
before me.
[14]
In any
event, cases such as
SA
Sentrale Ko-op Graanmaatskappy Bpk v Shifren en Ander
[2]
;
Brisley
v Drotsky
[3]
;
and
Nyandeni
Local Municipality v MEC for Local Government and Traditional Affairs
and Another
[4]
stands in the way of the Respondent’s reliance on a verbal
amendment to the written agreement.
[15]
Lastly, the Respondent relied on an improvement / enrichment
lien as
a defence against eviction.
[16]
It is not in dispute that the Respondent developed the property
but
the Respondent did not allege that such improvements were made with
the Applicant’s prior written consent.
[17]
The improvements included
inter alia
the building of ablution
facilities, a nursery, a storeroom and additional rooms. The only
evidence with regards to the cost of
the developments is that “
[the
Respondent] spent in excess of Two Million Rand to renovate, develop
and erect new structures”
.
[18]
The Applicant did not deny that the Respondent made improvements
to
the property but alleged that the Respondent did not satisfy the
requirements of an improvement lien.
[19]
First, the
Applicant alleged that the Respondent made the additions to the
property without the Applicant’s prior written
consent and in
conflict with clause 29
[5]
of
the agreement. As such, the Applicant contended that the improvements
were constructed by the Respondent at its own risk and
cannot form
the basis of any right to remain in occupation of the property.
[20]
In
Palabora
Mining Co Ltd v Coetzer
[6]
Mahomed J (as he was then)
declined to uphold a right of retention which was in contrast with
the provision of an agreement concluded
between the parties, on the
following basis:
“
There
is a third difficulty with the respondent's defence to the
claim for ejectment, based on a right of retention. It
arises from
clause 7 of the lease which provides:
'The
lessee shall not make any alterations or additions to the premises .
. . without the prior written permission of the lessor
. . . . Any
alterations or additions hereinbefore mentioned will become the
property of the lessor, without payment or compensation
to the
lessee.'
It
is not contended by the respondent that he received any such 'written
permission' from the applicant to effect the 'alterations
or
additions to the premises'. No right of retention can, in these
circumstances, be successfully invoked.”
[21]
On this basis alone the Respondent’s reliance on an
improvement
lien against eviction cannot be upheld.
[22]
There is another reason why the Respondent has not made out
a proper
case based on an improvement lien.
[23]
Cloete JA,
writing for the Supreme Court of Appeal in
Rhoode
v De Kock and Another
[7]
explained
the legal position as follows:
“
[13]
The appellant claimed the rights of a bona fide purchaser based on
the decision in
Kommissaris
van Binnelandse Inkomste v Anglo American (OFS) Housing Co Ltd
1960
(3)
SA
642
(A)
at
657. He therefore claimed to be entitled to recover necessary and
useful expenses and to exercise a lien over the property
until paid.
His affidavit does not distinguish between the two categories of
expenses. I shall consider both possibilities.
[14]
So far as the claim for necessary expenses is concerned, Rhoode would
have a claim for reimbursement
for expenditure of money or material
on the preservation of the property. He has no claim for his own
labour:
Harrison v Marchant
1941 WLD 16
at 20 –
21. The problem facing the appellant, however, is that he relies on
the evidence of Bouwer who has estimated what
the improvements would
cost as at February 2010. That evidence is irrelevant. It does not
establish that the appellant actually
expended anything in money
or materials.
[15]
So far as useful expenses are concerned, the amount of compensation
is limited to the amount by which
the value of the property has been
increased or the amount of the expenses incurred by the appellant,
whichever is the less; and
the court has a wide discretion. That was
the Roman law: D 6.1.38; the position was the same in the Roman-Dutch
law: Voet 6.1.36; and
it remains the same in the modern
South African law:
Meyer's
Trustees v Malan
1911
TPD 559
at 568;
Fletcher
& Fletcher v Bulawayo Waterworks Co Ltd
1915
AD 636
at 648, 656 – 657 and 664 – 665.
[16]
Here again, one does not know what the appellant's actual expenses
were. In addition, there is no
acceptable evidence that the value of
the property was increased. The opinion expressed by Van der Spuy is
of no assistance as
neither the factual foundation nor his motivation
therefor are set out:
(a)
Van der Spuy never visited the property, but relied upon
photographs and what was told to him by an unnamed appointee. Not all
of
the photographs shown to him were annexed to the appellant's
answering affidavit. Moreover, and more importantly, what the
'appointee'
sent to examine the property told Van der Spuy is nowhere
recorded.
(b)
The factors taken into account by Van der Spuy in arriving at his
'provisional' valuation, such as the location of the property,
its
size and zoning, comparable sales in the area and the nature, extent
and degree of completion of the improvements, are nowhere
set out.
The criticism by the
respondents' counsel of the answering affidavit on this aspect as
containing 'vague
, bald, terse, sketchy and
insufficient allegations' is entirely justified.”
(footnotes omitted)
[24]
The same criticism applies in
casu
.
[25]
The Respondent simply alleged that an amount in excess of
R 2 million
was spent to renovate and develop the property without drawing a
distinction between necessary and useful expenses,
without giving any
credible evidence that the value of the property had increased
as a result of the developments, and without
giving any credible
evidence as to the actual expenses of the developments.
[26]
It follows that the Respondent has not made out a case in
terms of an
improvement lien.
[27]
Accordingly the application succeed, with costs.
Order
[28]
I make the following order:
1.
The Respondent and/or all persons or juristic persons holding
occupation through the Respondent shall
vacate Plot 1 Rocklands
Agricultural Holdings, District Bloemfontein, Free State Province,
within fifteen (15) days of this order.
2.
The sheriff of this court or his/her lawful deputy is authorised and
directed to take any and all such
steps as are necessary to
evict/eject the Respondent and all persons or juristic persons
holding occupation through the Respondent
from the aforesaid premises
in the event that the Respondent or any other person do not vacate
the premises within the timeframes
of this order.
3.
The Respondent to pay the costs of the application.
PJJ
ZIETSMAN AJ
Counsel
for the Plaintiff:
Adv R
van der Merwe
Maree
& Partners
BLOEMFONTEIN
Counsel
for the Defendant:
Adv
RJ Nkhahle
LG
Fixane Attorneys
BLOEMFONTEIN
[1]
(113/2022)
[2022] ZAFSHC 75
(19 April 2022).
[2]
1964
(4) SA 760 (A).
[3]
2002
(4) SA 1 (SCA).
[4]
2010
(4) SA 261 (ECM).
[5]
Clause
29 provides that: “The Purchaser shall not make any
improvements and/or additions to the Property without the prior
written consent of the Seller”.
[6]
1993
(3) SA 306
(T) at 309 F – H.
[7]
2013
(3) SA 123
(SCA) at para [13] – [17].