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[2010] ZASCA 67
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De Aguair v Real People Housing (Pty) Ltd (426/09) [2010] ZASCA 67; 2011 (1) SA 16 (SCA) ; [2010] 4 All SA 459 (SCA) (24 May 2010)
Links to summary
THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
judgment
Case
No
426/09
In
the matter between:
anselmo
inacio de freitas de aguiar
Appellant
and
real
people housing (pty) Limited
Respondent
Neutral
citation:
De
Aguiar v Real People Housing
(426/09)
[2010] ZASCA 67
(24 May 2010)
Coram:
Mthiyane,
Van Heerden, Mlambo
and
Shongwe
JJA and GRIESEL AJA
Heard:
4
May 2010
Delivered:
24
May 2010
Summary:
Application
for leave to adduce further evidence – requirements restated –
whether lessee entitled to rely on enrichment
lien for expenses in
respect of necessary and useful improvements.
order
On
appeal from:
South Gauteng High Court
(Johannesburg) (Bhana AJ sitting as court of first instance):
(a) The
appeal is dismissed with costs.
(b) The
order of the high court is varied by substituting a period of 60
days for the period of 120 days in para 1 of the order.
judgment
Griesel
AJA (
Mthiyane,
Van Heerden, Mlambo
and
Shongwe
JJA
concurring
):
The
sole issue for determination in this appeal is whether or not leave
should be granted to the appellant to adduce further evidence
so as
to enable him to
rely on an alleged
improvement lien as a defence to a claim for his eviction from
certain premises. If leave is refused, it is
common cause that the
appeal should fail.
Th
e
present respondent (as applicant in the court below) obtained an
order in the South Gauteng High Court, Johannesburg for the
eviction
of the appellant (respondent in the court below) and all those who
occupy the premises described as 90 Main Road, Walkerville,
Meyerton
(the property) by virtue of his occupation.
Most
of t
he relevant facts are uncontentious
and can be briefly stated. The appellant’s father acquired the
property as vacant land
in 1970, later erecting a family home and
other improvements thereon during the early 1980s. The appellant and
his family have
been in occupation of the property ever since.
During November 1997 the property was sold in execution to First
National Bank
(FNB) after the appellant’s father ran into
financial difficulties. FNB subsequently sold the property to
the respondent,
who took transfer thereof during May 2001. On 14 May
2001, the respondent concluded a written lease with the appellant in
respect
of the property at a monthly rental of R9 795.04. In
breach of the lease, however, the appellant failed regularly to pay
the rental due and as at 15 April 2006 he was in arrears in a total
amount in excess of R130 000. The respondent accordingly
instituted action against the appellant in the Vereeniging
magistrate’s court for recovery of the arrears and
cancellation
of the lease. It simultaneously commenced eviction
proceedings out of the same court. Both the action and the
application
were opposed by the appellant.
On
25 April 2006 the parties reached a settlement of their disputes and
entered into a written ‘settlement agreement’
which was
made an order of court. In terms of the settlement, the lease was
cancelled and the respondent agreed to sell the property
to the
appellant at a purchase price of R1,5 million, which had to be
paid, alternatively secured by acceptable bank guarantees,
on or
before 31 May 2006. Clause 1.4 of the settlement agreement provides
as follows:
‘
In
the event that the defend
ant fails to meet
the conditions mentioned in 1.3 above [ie payment or securing of the
purchase price], the defendant has agreed
to vacate the premises on
or before 30 June 2006.’
It
was also recorded that the agreement constituted ‘a full and
final settlement of the disputes between the parties’.
The
appellant failed to pay or secure the
purchase price by due date, with the result that he became obliged
to vacate the property
on 30 June 2006. He refused to do so, which
led to the launching of the application for eviction in the court
below, based squarely
on the undertaking contained in clause
1.4 of the settlement agreement.
In
his answering affidavit
filed in
opposition to the claim for eviction, the appellant raised numerous
issues, none of which amounted to a valid defence
in law and none of
which requires judicial attention at this stage. The learned judge
in the court below rightly rejected the
appellant’s opposition
to the order sought and found that the respondent’s right to
seek eviction arose out of the
‘self-standing settlement
agreement’ entered into between the parties. He accordingly
granted an eviction order,
affording the appellant a further 120
days to vacate the premises.
The
appellant filed a notice of application for leave to appeal against
the eviction order, raising a number of grounds of appeal.
Those
grounds all fell
away, however, and were
overtaken by a notice styled ‘Supplementary Grounds for
Leave to Appeal’, supported by
a supplementary affidavit, in
which the appellant – now represented by a new legal team –
claimed to be entitled
to rely on an enrichment lien over the
premises, based on ‘considerable amounts of money’
allegedly expended by him
and his father in respect of ‘necessary
and useful improvements’ to the property. This was an entirely
new point,
which was neither foreshadowed in the evidence on record
at that stage nor supported by such evidence. The appellant
accordingly
sought leave to appeal so as to enable him to apply to
the court hearing the appeal for leave to lead further evidence
relating
to such expenses and improvements.
In
the event, the application for leave to appeal was dismissed by the
court below, but was subsequently granted by this
court on
petition. Pursuant to that order, a substantive application for
leave to adduce further evidence was delivered on behalf
of the
appellant, which is what is before us at this stage. Should such
leave be granted, the respondent wants the matter to
be remitted to
the high court for that court to determine whether, having regard to
the evidence adduced by the appellant, he
is entitled to rely on a
lien as a right to retain possession of the property.
Legal position
In
terms of s
22(a) of the Supreme Court
Act 59 of 1959 this court (and a high court) is afforded power –
‘
. . .
on
the hearing of an appeal to receive further evidence, either orally
or by deposition before a person appointed by such division,
or to
remit the case to the court of first instance, or the court whose
judgment is the subject of the appeal, for further hearing,
with such
instructions as regards the taking of further evidence or otherwise
as to the division concerned seems necessary; . .
. .’
These
provisions have been the subject of judicial scrutiny on innumerable
occasions
over the years and although the
requirements have not always been formulated in the same words, the
basic tenor of the various
judgments throughout has been to
emphasise the court’s reluctance to reopen a trial:
1
in the interests of finality, the court’s powers should be
exercised sparingly and further evidence on appeal should only
be
admitted in exceptional circumstances.
2
It
is incumbent upon an applicant for leave to adduce further evidence
to satisfy the court that it was not owing to any remissness
or
negligence on his or her part that the evidence in question was not
adduced at the trial.
3
Furthermore, inadequate presentation of the litigant’s case at
the trial will only in the rarest instances be remediable
by the
adduction of further evidence at the appeal stage.
4
It is thus clear that the test is a stringent one. As pointed out by
Corbett JA in
S v N
:
5
‘
A
study of the reported decisions of this Court on the subject over the
past 40 years shows that in the vast majority of cases relief
has
been refused: and that where relief has been granted the evidence in
question has related to a single critical issue in the
case.’
While
pointing out that it is undesirable to lay down fixed rules as to
when the court ought to accede to the application of a
litigant
desirous of leading further evidence upon appeal, this court as well
as the Constitutional Court has in a series of
decisions laid down
certain basic requirements. The formulation that is perhaps the most
often quoted is that of Holmes JA in
S
v De Jager
:
6
‘
(a)
There
should be some reasonably sufficient explanation, based on
allegations which may be true, why the evidence which it is
sought to lead was not led at the trial.
(b
)
There
should be a
prima facie
likelihood
of the truth of the evidence.
(c)
The
evidence should be materially relevant to the outcome of the trial.’
Applying
the foregoing principles to the evidence before us, I
am
of the view that the present application cannot succeed.
Evidence materially relevant to the
outcome
Starting
with the last requirement first, c
ounsel
for the respondent strongly relied on the terms of the settlement
agreement concluded between the parties on 25 April 2006.
He pointed
out that it contains an unequivocal undertaking by the appellant to
vacate the property on or before 30 June 2006,
should he be unable
to pay or secure the purchase price by that date.
7
It contains no room for an unexpressed
reservatio
mentalis
that would entitle the
respondent to evade his contractual undertakings. The
settlement agreement formed an independent
basis for the
respondent’s application for eviction, as the learned judge in
the court below rightly found. This finding,
which has not been
assailed on appeal on behalf of the appellant, is dispositive of the
matter. As correctly submitted by counsel
for the respondent, the
appellant’s purported reliance on an enrichment lien is
incompatible with the undertaking to vacate
the property. The
appellant has not sought – either in the answering affidavit
or in his supplementary affidavit –
to assail the validity of
the settlement agreement or to qualify the undertaking
contained therein. In the result, no amount
of further evidence
relating to improvements can avoid the consequences of this
undertaking or affect the outcome of the application.
In
the light of this conclusion, it is not strictly necessary to deal
with the other requirements. It is, in any event, clear
to me that
the application does not comply with any of the other requirements
applicable to applications of this nature, as I
shall briefly
demonstrate.
A reasonable explanation
From
the affidavits filed on behalf of the respondent in the application
for leave to adduce further evidence it is evident
that
the only reason why evidence in support of the alleged lien was not
placed before the court earlier was due to the fact that
he was
allegedly unaware of the judgment of this court in
Business
Aviation Corporation (Pty) Ltd & another v Rand Airport Holdings
(Pty) Ltd.
8
In that case
–
an action by a lessor for the eviction
of the lessees from an urban property – the lessees relied on
an enrichment lien
as they had expended money on necessary and
useful improvements to the property for which they had not been
compensated. The
lessor met the lessees’ defence with the
contention that the lien purportedly relied upon had been abolished
by two Placaeten,
promulgated by the Estates of Holland in 1658 and
1696 respectively. On appeal to this court it was held that the
provisions
of article 10 of the Placaeten had never applied to urban
leases, with the result that the Placaeten did not provide an answer
to the lessees’ reliance on an enrichment lien. It was this
perceived ‘fundamental change’ in the law of which
the
appellant claims to have been unaware and on which he now seeks to
rely. The appellant cannot say why his erstwhile legal
representatives did not inform him of his rights, but he
surmises that this must be due to the fact that they had been
equally ignorant of the said judgment and its effect on the rights
of lessees.
In
my opinion, the
appellant’s
explanation does not withstand scrutiny, nor does it excuse his
failure to invoke the purported lien at an earlier
stage:
(a) First,
the decision in
Business Aviation
Corporation
was handed down in this
court on 30 May 2006. There is simply no explanation – apart
from pure speculation on the appellant’s
part – as to why
his former legal team would have been unaware of that decision when
the present matter came to be argued
before the court below exactly
one year later, on 30 May 2007. Whatever the true reason may be, it
is clear to me that this is
not one of those ‘rarest instances’
where the respondent should be permitted to take shelter behind the
perceived inadequate
presentation of the defence case.
9
(b)
Second,
the
Business Aviation
decision
did not create new law, as suggested by the appellant; it merely
clarified the common law position as it had existed for
many years.
Nothing prevented the appellant, if so advised, from relying on an
improvement lien when deposing to his answering
affidavit. This is
all the more so, seeing that the appellant alleges that he effected
improvements to the property, not only in
his capacity as lessee, but
also as a lawful occupier. The
Business
Aviation
decision did not in any way
affect the rights of lawful occupiers to rely on enrichment liens.
A
prima
facie
likelihood of the truth of the
evidence
In
his answering affidavit in the main
application the appellant made mention of various improvements
effected to the property over
the years, making it clear that it was
his father
who
had developed the property and paid for the various improvements.
Thus, although the appellant was clearly alive to the issue
of
improvements when deposing to his answering affidavit, no mention
was made of any improvements for which the appellant
himself
can claim credit. In his supplementary affidavit, however, the
appellant claims that
he and his father
had spent ‘a substantial amount of money on useful and
necessary improvements to the premises’. Any improvements
effected by his father are, of course, completely irrelevant to a
consideration of the lien on which the appellant seeks to rely.
Moreover, any improvements effected before 2001, when the respondent
became the owner of the property, are equally irrelevant,
because
the respondent could not have been enriched by such improvements.
As
to the details regarding exactly which improvements they were, when
they were effected and at what cost
, the
appellant is exceedingly vague. More importantly, the appellant does
not presently have the necessary evidence available
to establish the
enrichment lien on which he wishes to rely; such evidence must still
be found. According to him, it has been
‘very difficult . . .
to track down the builders’ who carried out the improvements
in question. He
has also experienced difficulty finding ‘any
records of such transactions and in most instances payment took
place in cash
transactions the records of which have been disposed
of’. This court is therefore quite unable to evaluate the
cogency
of the evidence that the appellant proposes to place before
the high court, should leave be granted. Such evidence as has been
adduced by the appellant, in the form of a report prepared by an
architect, Mr John Cornish, has persuasively been refuted on
behalf
of the respondent. On the basis of information supplied by the
appellant, Mr Cornish drew a schedule, illustrated by an
aerial
photograph, of improvements the appellant claims to have made
after 1 August 2001. With reference to building plans
obtained from
the local authority, however, it was demonstrated by the respondent
that most of the improvements claimed by the
appellant have in fact
been in existence at least since October 1985 and therefore could
not have been improvements effected
by him after August 2001.
Moreover,
it is clear from what is set out above
that the new evidence does not relate to a ‘single critical
issue’, as required.
Instead, it is envisaged that, should the
matter be remitted to the high court and referred for the hearing of
oral evidence,
the appellant ‘will be able to call many
witnesses, including the builders (with subpoenas
duces
tecum
for documents) as well as many
of my family members who were aware that I was paying for the
improvements to be effected and
witnessed the building operations’.
Thus, what the appellant contemplates is a full-scale new trial,
spanning a lengthy
period of time and involving a multitude of
witnesses and documents, much of which will be strenuously contested
by the respondent,
as appears from the affidavit filed in opposition
to the present application. This is a compelling consideration
against
granting the relief sought.
10
Conclusion
To
sum up,
I am of the view that the
appellant has not satisfied any of the requirements for leave to
adduce further evidence. In the circumstances,
the application for
leave to adduce further evidence is without merit. It follows that
the appeal falls to be dismissed with
costs.
Counsel
for the respondent has asked us to vary the order of the court
below
in one respect: as mentioned earlier, the court below afforded the
appellant a period of 120 days to vacate the property.
Counsel asked
that this period be substituted with a period of 30 days. In the
light of the fact that the appellant has had a
further period of
almost three years since the date of the order by the high court in
which to arrange his affairs, I am inclined
to accede to this
request. However, in my view, a fair compromise would be to allow
the appellant a period of 60 calendar days
from the date of this
order to vacate the property.
It
is ordered:
(a) The
appeal is dismissed with costs.
(b) The
order of the high court is varied by substituting
a
period of 60 days for the period of 120 days in para 1 of the order.
B M
Griesel
Acting
Judge of Appeal
appearances
FOR
APPELLANT:
George Kairinos
Instructed
by:
Harry
Goss Attorneys, Bedfordview
McIntyre
& Van der Post, Bloemfontein
FOR
RESPONDENT: Dirk Vetten
Instructed
by: Martini-Patlansky, Houghton, Johannesburg
Lovius-Block
Attorneys, Bloemfontein
1
Erasmus
Superior Court Practice
A1-55 – A1-56 (Service
Issue 33).
2
Colman v Dunbar
1933 AD 141
at 161;
S v N
1988 (3) SA
450
(A) at 458E;
Rail Commuters Action Group & others v
Transnet Ltd t/a Metrorail & others
2005
(2) SA 359 (CC)
para 43.
3
Simpson v Selfmed Medical Scheme & another
1995 (3) SA
816
(A) at 824J.
4
R v Carr
1949 (2) SA 693
(A) at 699.
5
Footnote 2 above at 458I–459A.
6
1965 (2) SA 612
(A) at 613B. See also the cases referred to in
footnote 2 above as well as
Loomcraft Fabrics CC v Nedbank Ltd &
another
[1995] ZASCA 127
;
1996 (1) SA 812
(A) at 824H–825D;
S v M
2003 (1) SA 341
(SCA)
para 16;
Prophet v National Director
of Public Prosecutions
2007 (6) SA 169
(CC) para 33; and
President of the Republic of South Africa & others v
Quagliani, and two similar cases
2009 (2) SA 466
(CC);
[2009]
ZACC 1
para 70.
7
Para 4 above.
8
2006 (6) SA 605
(SCA).
9
Carr’s
case,
supra
.
10
Cf
Metrorail
supra
loc cit
;
S v N supra
at
459A–B.