About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, East London Local Court
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, East London Local Court
>>
2022
>>
[2022] ZAECELLC 12
|
|
Petersen and Another v Gqosha and Another (EL 1281/2021) [2022] ZAECELLC 12 (9 June 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
CASE
NO. EL 1281/2021
In
the matter between:
GARTH
PETERSEN
First Applicant
SARAH-JANE
PETERSEN
Second Applicant
and
KHAYALETHU
GQOSHA
First Respondent
BUFFALO
CITY METROPOLITAN
MUNICIPALITY
Second Respondent
JUDGMENT
IN RESPECT OF APPLICATION FOR EVICTION
HARTLE J
[1]
The applicants seek the eviction of the
first respondent and all persons occupying through or under him from
residential premises
situated at [….] B [....] D [....] Place,
East London (“the property”).
[2]
The application purports to be one in terms
of the provisions of section 4 of the Prevention of Illegal Eviction
from and Unlawful
Occupation of Land Act, No. 19 of 1998 (the “PIE
Act”) and is predicated on the basis that the applicants are
the lawful
owners of the property and the first respondent and his
family in unlawful occupation thereof. The applicants launched the
application
on the basis of urgency as provided for in terms of
Uniform Rule 6 (12).
[3]
The applicants divulged in their founding
papers only the premise that they had recently purchased the property
and, contrary to
a provision in the deed of sale guaranteeing them
vacant possession, that they had not acquired vacant possession
thereof by virtue
of the fact that the first respondent and his
family were found to be unlawfully occupying the property after
registration of transfer
to them.
[4]
A copy of the deed of sale was not
disclosed neither the rather unique circumstances under which the
applicants came to acquire
the property.
[5]
In
proof of their ownership of the property they relied only on a copy
of a WinDeed report, although at the abortive first appearance
of
this matter on 2 November 2021
[1]
and in response to the first respondent’s contention that the
sale was contrived, put up a copy of the title deed which on
the face
of it confirms his and his wife’s acquisition of the property
on the basis of a sale to them on 12 February 2021
by one Colin Kriel
for a purchase consideration of R2 500,000,00.
[2]
Even though this detail was not volunteered from the outset, it is
common cause that Colin Kriel is the uncle of the second applicant
who evidently also transacted professional business with her
eponymous firm, Kriel Petersen Attorneys of East London. The firm’s
name is endorsed on the face of the title deed, suggesting their
professional involvement in the transfer of the property to herself
and her husband as well.
[6]
Although the first respondent’s
attorney ostensibly objected to the introduction of the title deed as
proof of ownership at
the initial hearing when the application was
struck from the roll for want of urgency, it can hardly be gainsaid
that the applicants
took ownership of the property on 28 July 2021.
[7]
Notwithstanding
the applicants’ rights as owners to recover possession of their
property by resort to the
rei
vindicatio
,
the first respondent opposes the application on the primary basis
that he is not an “unlawful occupier” within the
meaning
contended for in the PIE Act.
[3]
He pleads over that it would not be just and equitable to evict him
and his family and that they would be rendered homeless by
such
injunction, but evidently his main concern by such eviction is that
it will “render (his) case with Colin (Kriel) moot”.
[4]
The first respondent and his family have lived in the property since
February 2016 although the applicants plead that their unlawful
occupation of the property spans only from the date upon which they
took transfer of the property.
[5]
[8]
In essence the first respondent alleges a
contrived purchase by the applicants of the property in order to
thwart a “lien”
he has over it. This lien, so he
explained, had its origin in a “loan” he advanced to
Colin Kriel, who was introduced
to him by the second applicant in her
capacity as attorney or conveyancer after she was professionally
involved in a failed property
acquisition by him. He alleges that she
encouraged him to “triple” his deposit of R1 900 000.00
which he
had paid into the trust account of her law firm as a payment
towards the purchase price of the failed transaction, by paying it
to
Colin Kriel as an investment.
[9]
On 24 June 2015 the second applicant
advanced an initial sum of $86 500.00 to Colin Kriel from her
firm’s trust account
pursuant to a loan agreement entered into
between Colin Kriel and the first respondent which she herself
drafted. Further advances
were made to Colin Kriel at his request in
due course, entailing addenda to the original agreement, culminating
in an obligation
by Colin Kriel ultimately to pay him a sum of
$249 550.00, plus interest.
[10]
Colin
Kriel’s failure to pay the agreed amount to him in February
2016 led to the latter and him entering into a verbal agreement
that
he would take occupation of the property, then owned by Colin Kriel,
“until (Kriel) has paid all the money that he owes
me”.
[6]
It appears further, according to him, that the understanding was that
he would not be required to pay either rent or service charges
for so
long as he occupied the property on this basis.
[11]
Later,
on 25 April 2016, when Colin Kriel fell into arrears with his bond
repayments owed to Absa Bank Ltd, he and the latter entered
into a
mock deed of sale (sic) of the property to him (drafted by the second
applicant’s firm), but only to create the impression
that the
first respondent was purchasing the property from him for 7 million
rands. Colin Kriel persuaded him that the simulated
agreement was
intended only to be used as leverage with Absa Bank Ltd in order for
the latter to gain some time to catch up with
his arrears on the
mortgage loan(s).
[7]
[12]
He was surprised therefore when on 11 April
2019 Colin Kriel issued summons against him under East London Case
No. 381/2019, alleging
that he was holding over and in unlawful
occupation of the property after having failed to pay him the
purchase price as ostensibly
agreed in the “mock” deed of
sale. He has defended the claim of Colin Kriel for his ejectment on
the basis that he
is not in unlawful occupation of the property. At
the launch of the present application that action stood poised to go
to trial
and is still a live dispute. A perusal of the court papers
in that file, to which the first respondent referred this court in
support
of his plea of
lis pendens
as it were, confirms the same defence as presently raised to the
applicants’ claim for ejectment.
[13]
It is the first respondent’s belief
that the sale of the property to the applicants was - or since it has
now been successfully
concluded by way of registration of transfer,
is
, a
“tactical maneuver by Colin Kriel acting in cahoots with (the
applicants) to ensure his ejectment from the property without
being
paid what is owed to him by Colin Kriel.”
[14]
The first respondent alluded to a separate
action (EL 835/2016) in which Shumayela Properties (Pty) Ltd,
represented by Colin Kriel’s
brother Tony Kriel as director,
issued summons against Roger Charles Kriel, Colin Graham Kriel (who
was joined in those proceedings
only on 28 November 2018) and
Geoffrey Colin Kriel, the second applicant’s father and Colin’s
brothers respectively,
cited
nomine
officio
as defendants in their capacity
as trustees of Thistle Trust No. IT 848/96, to recover certain
indebtedness to it.
[15]
It appears from a copy of a court order
granted by consent between the various family members put up by the
first respondent in
respect of that action (“the Order”)
that on the day of Colin Kriel’s joinder, he was ordered in
settlement of
“claim 2” in the action to pay in his
personal capacity to the plaintiff a sum of 1 340 000.00.
Payment of
this amount was to be secured by way of a mortgage bond to
be registered over the property to rank behind Absa Bank Ltd, which
was then already holding six bonds registered against the property.
(It appears from the historic information furnished on the WinDeed
search in respect of the property that such a bond was registered by
Shumayela Properties (Pty) Ltd per document reference B7721/2019
although no date is indicated when this occurred.)
[16]
When Colin Kriel failed to pay this bond
there was a sequel to the Order pursuant to which Shumayela
Properties brought a further
application to declare the property
executable. The first respondent applied to join in those proceedings
and at the hearing of
that application asserted (as he does now) that
he had “a lien over the property, as occupation of same was
given to (him)
as security for payment of (his) money.”
[17]
The culmination of all of this is that on
12 January 2021 a further order (“the further Order”)
granting leave to Shumayela
Properties to immediately take its
execution against the property was made. A reserve price was set for
the sale of the property
in execution in the sum of R2.5 million. The
court’s order in this respect provided further, ostensibly in
respect of the
first respondent’s claimed interest in those
proceedings which had evidently warranted him been joined in that
application,
that:
“
4.
The following shall be included in the conditions of sale of the
property.
“
The sale of the
property is subject to any legal rights which Khayalethu Wiseman
Gqosha may have as occupier of the property.””
[18]
The applicants did not volunteer to this
court how it transpired that they came to purchase the property or on
what terms vis-à-vis
the first respondent who could hardly
have been out of the picture as it were especially from the point of
view of the second applicant
(the applicants, ostensibly eschewing
any direct dealings with Colin Kriel, averred in their replying
papers that they negotiated
with the execution creditor in respect of
their private purchase of the property which to my mind requires
elaboration on its own
why they ignored the court’s caveat
expressed in the further order which especially reserved the “legal
rights”
of the first respondent as “occupier”
thereof), or why they saw fit, in laying out the essential
allegations for their
ejectment claim, to withhold details of the
evidently known fact of the first respondent’s long standing
possession of the
property and his peculiar relationship with Colin
Kriel or the second applicant’s firm’s professional
dealings with
both the latter and the first respondent in relation to
the property. In reply they simply denied that a lien exists which
denial
rings hollow against the premise of their purported nescience
of any prior dealings between Colin Kriel and the first respondent.
[19]
The
first respondent alluded to yet another significant incident
preceding the applicants taking transfer of the property which
self-evidently exposes their complicity with Colin Kriel and
awareness of the first respondent’s long-standing possession
of
the property. This is that on 26 February 2021 the first applicant
wrote to the second respondent (ostensibly on behalf of Colin
Kriel)
[8]
to request them to
disconnect the supply of services to the property. This
communication, which urges upon the second respondent
to urgently
disconnect the services to the property, reads as follows:
“
Morning
Wayne
Thank you for taking the
time this morning to talk to me over the phone.
The
person in question has been occupying the property since 2016 and
stopped paying the municipal accounts as of late 2018. We
are very
concerned as to how the occupier who is not a tenant and has no lease
agreement but instead a potential buyer whereby
the agreement was
breached by non-payment,
[9]
has
not been disconnected to date as the main and the tenant account
(which he was able to set up at BCM) have both been handed
over and
have reached no payments since 2018. I have confirmed that he is able
to still purchase electricity and did so in January.
He has also been
running up water bills randomly to the amounts of R11 000.00 per
month.
The
owner did initiate eviction proceedings in 2019 which I have attached
for your perusal,
[10]
as well
as the letter from the attorney requesting disconnection on behalf of
the owner and a copy of the rates clearance certificate
which is
incomplete as per Barry Brown. I have also attached a detailed BP108
report on both accounts.
I ask that you please
consider this matter with urgency to avoid any further unnecessary
municipal and legal costs to the owner.”
[20]
The first respondent relates that the
second respondent acted upon this request and terminated the
electricity to the property on
8 March 2021. However, after his
attorney intervened to explain that the issue of his occupation was
the subject matter of litigation
(alluding to the pending action
aforesaid), his electricity connection was restored. Other municipal
services to the property were
also unlawfully terminated at the
behest of the first applicant.
[21]
In a letter of demand addressed to the
first respondent dated 1 September 2021 foreshadowing this
application on an urgent basis
the applicant’s attorneys of
record acknowledge the prior action that is alive between the first
respondent and Colin Kriel.
Indeed, it is averred in the demand that:
“
Despite
the foregoing, our client has informed us that the is aware of the
current action and/or eviction proceedings between your
client and
the previous owner, and his election not to pursue immediate eviction
proceedings against you client should not at all
be construed as a
forfeiture of his rights in law to do so. Our client requires
occupation of the property in due course, and should
your client
refuse to vacate when required to do so, our client shall enforce his
rights to occupation of his property.”
[22]
The applicants, perhaps inadvertently, also
exposed the fact of their knowledge prior to the launch of the
present application of
the first respondent’s long-standing
retention of the property as well as the pending litigation between
him and Colin Kriel
in Annexure “GP 7”. The annexure was
put up ostensibly to demonstrate to this court that the first
respondent’s
attorneys had on behalf of the first respondent
resisted their demand (dated 4 August 2021) as the new owners of the
property to
inspect it by referencing a “High Court Order”
(of which they claim to have had no knowledge) that purportedly
protected
his rights as an occupier. Rather than giving credence to
the applicant’s case that they were surprised to find out after
the purchase of the property that it was occupied, the first
respondent’s attorney’s response creates an entirely
different impression:
“
Your
“notice”, which I term “request”, to inspect
the property has been handed over to us for a proper response.
First
of all, we do not know in what capacity and on what basis you are
requesting to inspect this property. As far as we are aware
the owner
of the property is Colin Kriel, who is embroiled in litigation with
our client regarding this property.
All of this is known to
you as on the 28
th
of February 2021, you wrote an email to
Buffalo City Municipality, detailing the history of the property as
well as the dispute
between our client and Colin Kriel, requesting
the municipality to disconnect the services to the property, despite
the High Court
Order that protected our client’s rights as the
occupier of the said property. When that attempt failed, the services
were
illegally disconnected by someone who went to the property and
illegally cut the supply of the municipal services to the property.”
[23]
The first applicant also attached his own
response to the communication received from the applicant’s
attorney (Annexure “GP
8”) to clarify that he was writing
in his capacity as “new owner” of the property. In reply
to the allegation
of the attempted disconnection, he did not refute
this neither the general tenor raised in the first respondent’s
attorney’s
response that he and his wife knew well that the
dispute between the first respondent and Colin Kriel had long been
coming and
that his rights as occupier were “protected”
by a court order. Instead, he merely lamented as follows: “I
fail
to believe that Buffalo City Municipality would have been that
negligent to give you the information that you are referring to
without the consent of Mr. Kriel.”
[24]
Neither applicant purported to explain the
interference with the first respondent’s entitlement to
municipal services in the
formal papers filed.
[25]
This
background aside in an application in which the parties are expected
to lay bare every legally relevant circumstance to assist
the court
in exercising its discretion to determine whether it is just and
equitable to order an eviction, the true and primary
question to be
determined is whether the first respondent is indeed an unlawful
occupier within the meaning of the definition of
this concept in the
PIE Act.
[11]
[26]
Whilst
the onus is on the first respondent to prove his “right”
to be in occupation of the property, the applicants
have attracted an
evidential burden (on the belatedly accepted premise that the first
respondent is holding over after the deed
of sale entered between him
and Colin Kriel was cancelled) to prove such cancellation. However,
on the first respondent’s
evidence - which I must accept on the
basis of the Plascon Evans principle,
[12]
he claims that this sale was a farce and makes no bones about the
fact that he has occupied the property in terms of a verbal agreement
to keep possession of it and use it, basically free of any charge
whatsoever, since February 2016, in terms of his claimed “lien”.
This may all sound fanciful, yet it is ironically consistent with the
reality that he has maintained his possession of the property
and has
paid neither rent nor service charges in respect thereof since he
took occupation. He volunteered that he only commenced
paying service
charges to the second respondent more recently in order to ensure
that he can purchase electricity from the second
respondent. That he
was allowed to occupy the property on such a basis without any
ostensible demur from Colin Kriel and without
paying rent and service
charges (as an ordinary tenant would) for several years prior to the
applicants purchasing the property
lends credence to some sort of
understanding between him and Colin Kriel that must have been in
place.
[27]
The fact that the first respondent was
joined in the litigation between Shumayela Properties and Kriel
family members in EL case
no 835/16 also confirms in principle a
recognition by a court of his interest in the property as an
occupier, but what exactly
the nature of that right is (or rather
what the court was recognizing in those proceedings as constituting
that “right”),
is less clear.
[28]
A
contractual lien against property serves to secure a creditor’s
legal claim arising from a contract with the owner usually
pertaining
to the thing itself. The lien vests to secure the payment of the
contract amount and usually concerns an obligation
arising on the
back of improvements effected to the property, which situation does
not pertain here on the first respondent’s
version.
[13]
The first respondent seems to suggest that his verbal agreement with
Colin Kriel rather entailed a simple pledge of the property
given as
security for the latter’s indebtedness to him, which in my
opinion would also constitute a defence against an owner’s
rei
vindicatio
or establish a superior right to occupation of the property in such a
unique scenario. Liens and pledges can be enforced against
a curator
of an insolvent estate as well as against the owner’s successor
in title.
[14]
In this instance
and on the applicants’ own showing it could not have escaped
their attention when they purchased the property
from Colin Kriel
that the first respondent was asserting a right of retention in
respect of the property relative to Colin Kriel’s
claimed
indebtedness to him. This would have been evident from the pending
litigation but would also have been apparent from paragraph
4 of this
court’s further Order which a conveyancer in the position of
the second applicant preparing conveyancing documents
in respect of
the sale of the property to her and her husband would have been
especially required to take heed of.
[29]
The
first respondent (who I will assume for present purposes bears the
onus to establish the claimed lien to remain in possession
of the
property) is indeed vague about his commercial interest in the
property and the status of his loan to Colin Kriel. The present
extent of Colin Kriel’s indebtedness to him is not mentioned
anywhere, neither the minutiae of the oral agreement or what
the
expectation was regarding the value of his occupation of the property
(if any) since he took possession of it in 2016. However,
he defers
to the pending litigation in the East London action under Case No.
381/2019 between him and Colin Kriel, which ostensibly
involves the
self-same issues between them concerning whether his right to remain
in possession of the property prevails against
the owner’s
right to recover lost possession, no doubt with the applicants joined
or substituted in that matter as the new
owners.
[15]
Indeed I share his view that the applicants have “jumped the
gun” and prematurely brought the present application before
the
pending action between Colin Kriel and him has been finalized.
[30]
In my view all the elements of a
successful plea of
lis pendens
avail the first respondent in the circumstances and given his
reservations that the applicants purported to defeat his right of
retention by purchasing the property from Colin Kriel whilst knowing
full well that he was claiming a lien or pledge over it (a
concern
not unreasonably held by him), it appears to me to be appropriate
that the applicants involve themselves in the finalization
of the
pending action. No doubt the matter can also be resolved earlier by
the debt which is the subject matter of the pledge or
lien being
settled or secured to the first respondent’s satisfaction.
[31]
In
given circumstances, a court can and should stay eviction proceedings
if the outcome of other proceedings impacts the merits
of the
eviction or, if factual disputes raised on the papers can only be
resolved by oral evidence.
[16]
Either or both situations apply
in
casu
.
I cannot determine the issue whether the first respondent is an
unlawful occupier on motion (especially since the applicants have
not
entirely taken this court into their confidence) neither can I find
that the pending litigation between Colin Kriel and the
first
respondent is legally irrelevant. To the contrary, and according to
the doctrine of notice, the applicants at the time they
bought the
property, on their own showing, knew that the first respondent
claimed a “lien” (or pledge) and in the result
that right
of retention ought to prevail against them as successors in title if
the court in the pending action finds in the first
respondent’s
favour in this regard.
[17]
[32]
I have considered ordering a stay of these
proceedings, but my concern is that the premise for the application
set forth by the
applicants in the papers is not a true one and that
critical information has been withheld from the court. The launch of
the present
application was also unnecessary in the light of the
pending litigation in East London Case No. 381/2019 which ought to
dispose
of the question whether the first respondent’s right of
retention on the basis contended for can prevail against the owner’s
rei vindicatio
.
[33]
I mention too for guidance going forward
that the applicants failed to meet the procedural requirement
postulated by section 4 (2)
of the PIE Act in the sense that the
court’s directions for service were not obtained. The
applicants served a notice, but
this was not authorised by this court
prior to the sheriff serving it on the respondents. When the matter
was initially called
on the urgent roll, Ms. Collett for the
applicants argued that urgency in terms of the provisions of Uniform
Rule 6 (12), rather
than reliance on section 5 of the PIE Act
(involving a deviation from the normal forms and an abridgement of
time periods), was
a permissible basis upon which to launch such an
application. Whilst that may well be so, once the matter was struck
from the roll,
the notice format relied upon (without any
authorization from the court) did not survive and was required to be
supplemented.
[34]
Given the misconception by the applicants
that they had complied with the peremptory provisions of section 4
(2) of the PIE Act,
I invited the parties to make further submissions
to me as to the following:
“
Given the effect
of the ruling of Noncembu AJ dated 2 November 2021 concerning the
issue of urgency, what impact does this have
on the applicants’
claimed compliance with the peremptory procedural provisions of the
Prevention
of
Illegal Eviction from and Unlawful Occupation of Land Act,
No. 19 of 1998 (“the PIE Act”), since condonation was not
afforded to the applicants, and no leave granted by this
court to
serve written and effective notice of the proceedings as prescribed
in section 4 (2) of the PIE Act?
Assuming a procedural
deficiency, can this court in such event remedy the procedural
shortcomings by granting the necessary leave
to the applicants to
serve the requisite notice on the respondents and to permit them to
approach the court on the same papers,
duly supplemented, once they
have complied with the procedural prescripts in the PIE Act and the
respondents have had an opportunity
to place relevant circumstances
before the court, in order to argue the matter further?”
[35]
Comprehensive
submissions were made to me in this respect by both parties. The
general tenor of these, consistent with the relevant
case law, is
that the absent court authorised notice in terms of section 4 (2) of
the PIE Act was not fatal, neither had there
been any prejudice
occasioned to the first respondent by its omission, or by the
truncation of the relevant time periods made provision
for in section
4 that were to be afforded to him in addition to compliance with the
provisions of Uniform Rule 6 to put forward
his case. Indeed, I
accept that I could have condoned the absence of a directions order
and the truncation aforesaid as the purported
notice seems to have
served its purpose in every respect. The first respondent was
certainly aware of the proceedings and of his
rights referred to in
section 4 (5) (d) of the PIE Act and in fact made his submissions,
limited by their nature to the single
observation that an eviction
order would render him homeless (a mere state of fact), but which
situation would have been ameliorated
by affording him and his family
reasonable notice to move out of the property. By the first
respondent’s own admission, his
primary concern is his
contention that he is not an unlawful occupier within the meaning of
the definition in the PIE Act. Once
that issue has been resolved the
applicants can approach the court afresh, alternatively can seek a
directions order in the pending
action to be served timeously before
the hearing.
[18]
[36]
In the result, I issue the following order:
1.
The application is dismissed, with costs.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:
14 February
2022
Last
date submissions received:
29 April 2022
DATE OF
JUDGMENT:
9 June
2022*
*Judgement
delivered by email to the parties on this date.
APPEARANCES
:
For
the applicants: Mr. S Collett instructed by Van Rensburg &
Associates, East London (ref. Mr R Collett).
For
the first respondent: Mr. Godongwana of Godongwana Pakade Attorneys,
East London (ref. Mr. Godongwana).
For
the second respondent: No appearance.
[1]
The
matter was struck from the roll with costs on this date on the basis
that the claimed urgency had not been established.
[2]
The
title deed was received by the court first hearing the matter on 2
November 2021 and marked Exhibit “A”.
[3]
See the definition of “unlawful occupier” in section 1
of the PIE Act.
[4]
The
first respondent is probably referring to his security constituted
by his continued possession of the property.
[5]
The
applicants may well have only acquired
locus
standi
to invoke the
rei
vindicatio
on date of registration of transfer to them of the property, but the
fact that the first respondent’s occupation may be
held to
have been unlawful vis-à-vis the previous owner earlier than
this date is an entirely relevant factor in proceedings
for eviction
under the provisions of the PIE Act. It is also a determinant of
whether the provisions of sub-section (6) or (7)
of the PIE Act
apply. The applicants have not located their case under either
sub-section, neither have they even made the essential
averment that
is just and equitable, according to one of those scenarios, that
this court should grant the order for the first
respondent’s
eviction from the property.
[6]
Exact
details of the extent of Kriel’s indebtedness by the time of
the launch of the application have not been disclosed.
[7]
The
first respondent purported to introduce a copy of the deed of sale
as an annexure to his heads of argument. This attempt was
however
objected to on behalf of the applicants at the first hearing of the
matter and so the court has not had the benefit of
considering its
provisions, whereas Colin Kriel has ostensibly relied on their
provisions in the live, pending, action for his
claim of ejectment
against the first respondent.
[8]
It
is not clear in what capacity the first applicant would have
purported to have written on Colin Kriel’s behalf to the
second respondent.
[9]
This
premise upon which the first applicant approached the second
respondent to intervene, namely that the first respondent was
holding over, was not the case made out by the applicants in their
founding papers.
[10]
This
is a clear indication that the first applicant is aware of the
pending action.
[11]
The
first respondent accepts that he will have to vacate if it
transpires that he has no legal right that justifies his continued
possession of the property, or if the debt that is the subject
matter of his claimed lien is paid to him.
[12]
Plascon-Evans
Paints (TVL) Ltd v Van Riebeeck Paints (Pty) Ltd [1984] 2 All SA 366
(A).
[13]
A
lien is a legally recognized capacity to withhold to ensure that a
claim will be met. It is less of a real or personal
right than
it is a defence against the owner’s
rei
vindicatio
.
[14]
Levy
v Tyler
1933 TPD 377.
United Building Society v Smookler’s
Trustees and Golombick’s Trustee 1906 TS 623.
[15]
It
can be fairly assumed in my view that Colin Kriel anticipated that
there would be a dispute of fact, hence proceeding by way
of action
against the first respondent rather than on motion.
[16]
Pillay
& Another v Pillay & Others
[2012] JOL 28319
(KZD).
[17]
Levy
v Tyler,
Supra
.
[18]
See Christo Smith, Eviction and Rental Claims: A Practical Guide,
Part 1: The Law of Eviction, Chapter 3 The Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act re Notice and
Procedure in General at par 3.5.2, especially numbered paragraphs
5
and 10 regarding the detailed procedures to be followed in the
courts in this respect.