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[2023] ZAKZPHC 12
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Knoop N.O. and Others v Khumalo and Others (6174/2021P) [2023] ZAKZPHC 12 (3 February 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NUMBER:
6174/2021P
In the matter between:
KURT ROBERT KNOOP
N.O.
FIRST APPLICANT
AMERASAN PILLAY
N.O.
SECOND APPLICANT
EBRAHIM AMEER
N.O.
THIRD APPLICANT
and
MUZI CYPRIAN
KHUMALO
FIRST RESPONDENT
THOBEKA NTOMBIFUTHI
KHUMALO
SECOND RESPONDENT
MHOLI MERVIYN
KHUMALO
THIRD RESPONDENT
eTHEKWINI
MUNICIPALITY
FOURTH RESPONDENT
JUDGMENT
P
C BEZUIDENHOUT J
:
[1]
Applicants are the trustees of the insolvent estate of First and
Second Respondents
who had been married in community of property.
First and Second Respondents estates were finally sequestrated on 4
July 2011. The
primary asset in the estate was the property situated
at [....] H [....] Road, Kloof, KwaZulu-Natal.
[2]
After the sequestration of their estates First and Second Respondent
resigned as trustees
of the Khumalo Family Trust. The Khumalo Family
Trust of which Third Respondent is a trustee then entered into an
agreement with
Applicants during May 2012. In terms of the said
agreement the property was purchased by the Trust for the sum of R 2
900 000.00
million which had to be paid by a non-refundable deposit
of R 290 000.00 payable within 7 days of signature and the balance of
the purchase price of R 2 610 000.00 was payable against registration
of transfer. A bank guarantee for the amount had to be furnished
to
the transferring attorneys on or before 30 June 2012. The Trust had
to pay occupational rent calculated at 1 per cent of the
purchase
price which amounted to R 29 000.00 per month. The various other
terms of the agreement are not relevant to the issue
which has to be
decided. The agreement was effective from 19 June 2012. The deposit
had to be paid therefore by 26 June 2012 which
was not done. The bank
guarantee for the balance of the purchase price was also not
furnished by 30 June 2012.
[3]
Sporadic payments were made by The Khumalo Trust but was not in
accordance with the
agreement. According to Applicants payments were
made of R 30 000.00, R 50 000.00 and R 20 000.00 during 2012 and was
the total
of the payments made. During 2013 payments were made by The
Trust in the sum of R 379 000.00 which covered the occupational
rental
for 2013. A letter of breach was sent to The Trust. It was not
cured the agreement was cancelled by notice dated 28 March 2014.
[4]
It is common cause that First and Second Respondent continued living
in the said premises
and are presently still residing therein.
Applicants are seeking an order that First and Second Respondent be
evicted from the
said premises. This is based on the fact that the
occupation by them is unlawful as The Trust which had purchased the
property
had not complied with the agreement which was then cancelled
as set out above. Accordingly they have no further right to remain
on
the said property. It is further common cause that the necessary
notices in terms of PIE were served on Respondents.
[5]
It is contended by First Respondent that an amount of R 2 690 000.00
was paid between
2012 and July 2014. It is admitted that at the
beginning of 2013 the R 290 00.00 had not been paid but only R 235
000.00. It is
further contended that after 28 March 2014 when the
notice of cancellation was received further payments totalling R 925
000.00
were paid.
[6]
Third Respondent contends that The Trust had to be joined as a
Respondent. He also
contends that payment in the sum of R 2 690
000.00 was paid between 19 June 2012 and July 2014. He further
contends that The Trust
has made improvements to the property in the
sum of R 1 800 000.00 and accordingly has an improvement lien in
respect thereof.
He sets out various changes which have been made to
the said property and it also attaches certain photographs. It is
common cause
that Third Respondent, although a trustee of The Khumalo
Family Trust, does not reside on the said property.
[7]
It is also common cause or undisputed by Respondent that the deposit
was not paid
on time; that the guarantee was not provided for the
balance of the purchase price and also that there is no allegation by
Third
Respondent that occupational rent was paid beyond the year
2014. The occupation is accordingly unlawful as the agreement of
purchase
and sale had been cancelled for the reasons set out above.
The only issue which still has to be considered is the contention by
The Trust that they made improvements to the property to the value of
R 1 800 000.00. It is however noteworthy that Third Respondent
sets
out various alterations, additions etc. that were made to the
property but no further detail is provided as to when each of
these
were done, by whom they were done and the costing of each one and
that no invoices etc. were attached to his affidavit. The
contention
that it is The Trust that occupies the property is not correct in
that The Trust as a semi legal entity cannot occupy
it but it is
individuals which occupy the property. As the agreement with The
Trust had been cancelled The Trust no longer has
any lawful right to
occupation of the said property but it is occupied by First and
Second Respondent and their family and accordingly
it is them that
have to be evicted from the said property.
[8]
It was submitted on behalf of Respondents that even if the property
was held
mala fide
it still had a right of retention. It was
further submitted that there are disputes of facts and that it has to
be referred for
the hearing of oral evidence. It was the submission
on behalf of Applicants that there are no material disputes of fact
in that
the agreement was cancelled due to non-compliance and that
there is accordingly no need for the matter to be referred for oral
evidence and that it can be decided on the papers.
[9]
To rely on a lien a party must prove:
(a)
a lawful possession of the object,
(b)
that the expenses were necessary for the salvation of the thing or
useful for its improvements,
(c)
the actual expenses and the extent of enrichments of the plaintiff
and
(d)
that there was no contractual arrangement between the two parties in
respect of the expenses.
[10]
As set out above besides mere allegations that certain improvements
and changes had been made
and that it cost a certain amount no proof
of any expenditure thereon such as invoices etc. has been provided
and accordingly it
is merely unsubstantiated allegations that are
made in respect of the improvements made. It is accordingly difficult
due to the
bold allegations of improvements without any detail as to
who did the work, who the contractor was etc. to evaluate the
evidence.
There is also no building plans etc. provided for any of
the improvements which include the construction of carports etc.
[11]
Accordingly as set out above the purchase and sale agreement was
validly cancelled due to non-compliance
by Respondents and which is
not disputed that no guarantee was every obtained for the balance of
the purchase price. Attempts were
made for payments to be made in
various other ways but was not accepted by Applicants and accordingly
no such agreements came into
existence. The only agreement was
therefore the agreement which was entered into for the purchase of
the property and which was
not complied with and validly cancelled.
[12]
Applicants have are therefore entitled to an order evicting First and
Second Respondent from
the said premises.
Order:
I accordingly grant an
order as set out in the Draft Order attached hereto which is
initialled and dated.
Case
No.: 6174/2021P
DRAFT
ORDER
It
is hereby ordered that:
1.
The
first
and
second
respondents
and
any
or
all
persons
occupying
by
,
through
or under them are hereby ordered to vacate the immovable property
bearing the
physical
address
[….]
H
[….]
Road,
Kloof,
KwaZulu
Natal
("the
property"),
within
30
days
of the granting of this order.
2.
The
first and second respondents are directed to deliver to the
applicants
'
nominated
representative or agent all keys and access remotes to the property
upon vacating the property.
3.
In
the
event
of
the
first
and
second
respondents
and
any
persons
occupying
by, through or under them failing to comply with the orders set out
in
paragraphs
1
and
2 above, the Sheriff of the Court be and
is
hereby
authorised and directed forthwith to eject the first and second
respondents and any persons occupying by
,
through
or under them from the property and
to
hand
vacant possession thereof to the applicants
,
and
to deliver all keys and access remotes
in
respect
of the property to the applicants
'
or
their nominated representative or agent.
4.
The
first
and
second
respondents
are
directed
to
pay
the
costs
of
the
application.
P C BEZUIDENHOUT J.
JUDGMENT RESERVED
ON:
31 JANUARY 2023
JUDGMENT HANDED DOWN
ON:
3 FEBRUARY 2023
COUNSEL FOR THE
APPLICANTS:
MR D ALDWORTH
Instructed
by:
Van Wyk Law Inc
Durban
Ref: MAN4/0025
Tel: 031 26601013
c/o Hay and Scott
attorneys
Pietermaritzburg
Ref: R
Brent/mak/09V152023
Tel: 033 342 4800
COUNSELF FOR THE
1
ST
,
2
ND
& 3
RD
RESPONDENTS:
MR M B PEDERSEN
Instructed
by:
Pretorious, Mdletshe & Partners
Stanger
Ref: Mdletshe/NS/M639
Tel: 032 552 2243
c/o Ngcamu
Incorporated
Pietermaritzburg
c/o M B Pedersen &
Associates
Westville
Ref: M B Pedersen
Tel: 031 072 0324