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[2021] ZAGPJHC 632
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Vision Point Properties CC v Makubire and Others (01670/2020) [2021] ZAGPJHC 632 (18 August 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 01670/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
NO
18-08-2021
In
the matter between:
VISION
POINT PROPERTIES CC
Applicant
and
GRACE
KELLY
MAKUBIRE
First Respondent
GRACE
KELLY MAKUBIRE
NO
Second Respondent
(In
her capacity as executrix in the deceased estate of
Thabane
Keipele Modise Leo Makubire)
ALL
OCCUPIERS OF ERF 56 STRATFORD TOWNSHIP
Third Respondent
REGISTRATION
DIVISION J.R GAUTENG
JUDGMENT
Delivered:
By transmission to the parties via email and uploading onto Case
Lines the Judgment is deemed to be delivered. The date for hand-down
is deemed to be 18 August 2021
SENYATSI
J:
[1]
This is an opposed application
for eviction of the first respondent and all other occupiers
of erf
56 Strattford Township, Registration Division JR Gauteng situated at
6 Nichols Cresent, Strattford Gardens, Broadacres,
2021,
Johannesburg.
[2]
The first respondent, Ms Grace Kelly Makubire and her late husband,
Thabare Keipele
Modise Leo Makubire, lived in the property described
above as the owners thereof. The property was funded through a loan
secured
by mortgage bond passed in favour of Investec Bank
(“Investec”). The mortgage bond was registered on 6
November 2006.
[3]
On 29 January 2013, the first respondent’s husband died and
consequently the
first respondent was appointed as an executrix of
his estate. It appears from the papers that Investec instituted an
action to
recover the amount owing to it in June 2013 and judgment
was granted in its favour during August 2017 for payment of R4 961
470.67
and the property was declared specifically executable.
[4]
The first and second respondents served an application to rescind the
judgment under
case number 40411/2015 and the application was
dismissed on 6 June 2018. Rule 46A came into operation on 22 December
2017. The
property was sold to the applicant by sale in execution of
the judgment on 25 August 2018.
[5]
Transfer and registration of ownership of the property was effected
in favour of the
applicant on 30 July 2019. Following the transfer,
the applicant commenced with the eviction proceedings on 22 January
2020 and
the section 4 (2) of the Prevention of Illegal Eviction Act
proceedings was granted on 19 August 2020.
[6]
The applicant contends that it has complied with the requirements of
Prevention of
Illegal Evictions from and Unlawful Occupation of Land
Act 19 of 1998 (the PIE Act”). The respondent’s defence
is that
she has a lien over the property in that the property was
sold without a reserve price. The respondent furthermore contends
that
the property was sold in contravention of section 30 of the
Administration of Estates Act which provides as follows:
“
s30 Restriction on
sale in execution of the property in deceased estates any property in
the estate of any deceased person which
has been attached whether
before or after his death under such writ process; provided that the
foregoing provisions of this section
shall not apply if such
first-mentioned person could not have known of the death of the
deceased person.”
[7]
The issue for determination is whether the respondents’ defence
can be raised
against a
bona fide
purchaser for vindication of
its rights by way of eviction.
[8]
To consider the defence of lien, it is important to deal with the
legal principles
pertaining thereto. To successfully raise a defence
of a lien, it must be alleged and proved that:
“
(a) a person has
possession of the object;
(b) that the
expenses incurred were necessary for the salvage of the property or
that it was useful for the improvement of the object
(improvement
lien).”
[1]
[9]
A real lien (an enrichment lien) is afforded to a person who has
extended money or
labour on another’s property without any
prior contractual relationship between the parties. The lienholder is
entitled to
retain possession until his enrichment claim has been
met. It is an established principle of our law that the owner of the
property
subject to a right of retention may defeat the lien by
furnishing adequate security for the payment of the debt.
[2]
[10]
In
First
National Bank of South Africa Ltd v The Commissioner for the South
African Revenue Services and Another
[3]
it was held that there is no authority for the proposition that a
person having a lien over the property of a third party thereby
acquires an independent cause of action against a third party owner.
The Constitutional Court, in that case, citing
Buzzard
Electrical (Pty) Ltd c 158 Jan Smuts Avenue Investments (Pty) Ltd
[4]
confirmed that a lien did not exist in vacuum but to secure or
reinforce an underling claim and that neither a direct nor an
indirect
enrichment claim could be entertained if there had been no
unjustified enrichment of the owner, it constitutes no more than a
defence
against the owner’s
rei
vindicatio
.
[11]
The principle is expressed by Eiselen and Pienaar Unjustified
Enrichment
[5]
as follows:
“
The lien or
retention right is an ancillary right which supports the main claim,
but also dependant on it. In all cases where a
party relies on a
retention right the onus is that party to prove the existence of the
main claim without which it cannot survive.”
[12]
In
Singh
v Singh Insurance Co Ltd
[6]
in dealing with the salvage lien the court held that it was a remedy
which is available to the possessor of property of another.
It
operates as security for the recovery of necessary expenditure
incurred by him in the course of his possession of another’s
property.
[13]
Another instance where a lien can be raised as a defence is an
instance where someone who has
effected necessary or useful
improvements to the property of another by agreement is sued for its
return before being compensated
for his work, he may defend his
possession by either means-against his contractual counter-part, on
the basis of his debtor and
creditor lien, for his agreed
remuneration, regardless of the extent of the latter's enrichment, if
owner, and against the owner
who is not the contracting party, on the
basis of his enrichment lien, for his actual expenses tempered by the
owner's enrichment.
[7]
[14]
The respondent's claim in her answering affidavits is that she has a
lien over the property.
She contends that the lien stems from the
fact that the property was sold without reserve and that it was not
sold for an equitable
value at sale in execution which took place on
25 August 2018. She further contends that, as the joint co-owner of
the property,
she was entitled to a larger sum of money for the
property. I have not come across any authority for such proposition,
especially
against a
bona fide
purchaser who purchased the
property through a judicial process.
[15]
The claim of lien as raised by the respondent is also not supported
by any of the authorities already
referred to above. She has not
averred that she expended expenses on the property of the applicant.
It follows, therefore that
there is no legal basis to sustain the
defence of lien as claimed by the first respondent against the
res
vendicatio
of the applicant. Accordingly, her defence must fail.
[16]
I hold the view as set out in paragraph [15] above because the sale
in execution was not done
at the instance of the applicant, but
through a court process where Investec was the judgment creditor who
exercised its rights
as a mortgage bondholder. The applicant is a
bona fide
purchaser who was not involved in the litigation
between Investec and the first respondent.
[17]
I find it unnecessary to deal with the provisions of Rule 46A of the
Uniform Rules, as the application
before this court has nothing to do
with it.
[18]
The applicant has complied with the provisions of s4(a) of the PIE
Act. It was authorised by
court to issue the eviction proceedings and
therefore I am of the view that a proper case has been made out for
the relief sought.
[19]
Section 4(7) of the PIE Act provides as follows:
“
(7) If an unlawful
occupier has occupied the land in question for more than six months
at the time when the proceedings are initiated,
a court may grant an
order for eviction if it is of the opinion that it is just and
equitable to do so, after considering all the
relevant circumstances,
including, except where the land is sold in a sale of execution,
pursuant to a mortgage, whether land has
been made available or can
reasonably be made available by a municipality or other organ of
state or another owner for relocation
of the unlawful occupier, and
including the rights and needs of the elderly, children, disabled
persons and households headed by
women.”
[20]
In dealing with the constitutional imperative on whether it is just
and equitable to order eviction,
the court in
City
of Johannesburg v Changing Tides 74 (Pty) Ltd and Others
[8]
held that the court must come to a decision that is just and
equitable to all parties.
[21]
In our constitutional dispensation, in a wide range of eviction
cases, municipalities have been
ordered to provide occupiers with
emergency accommodation. The critical issues when it comes to
eviction is firstly whether an
eviction order should be granted, if
the order is granted by which date must the property be vacated and
thirdly if the property,
is not vacated by the date determined by
court, when the order may be executed.
[9]
The issue of emergency accommodation is not relevant as the case
before me does not involve a municipality.
[21]
I now deal with the defence raised that s30 of the Administration of
Estates Act had not been
complied with when the property was sold.
[22]
The first respondent was the executrix of the estate of her late
husband. She has not adduced
evidence on what steps she had taken
after her appointment by the Master of the High Court, as an
executrix to bring the administration
of her late husband’s
estate to finality. She has also not disclosed evidence of how far
she was with the liquidation and
distribution account of the said
estate. There is also no evidence to suggest that she took any action
to protect the interest
of creditors and heirs to the estate.
Consequently, I hold the view that this defence is intended to delay
the vindication of the
applicant’s right to the property.
[23]
The first respondent argued that she was the sole breadwinner and
that she relies on her pension
of R3200 per month to pay her for her
legal fees. She does not disclose the special circumstances that she
considers relevant to
enable this court to decide on whether it is
just and equitable for her and the rest of the respondents not to be
evicted from
the property.
[24]
The balancing act that this court must exercise is that it should
also guard and protect the
owner of the property as it is innocent
party that was never involved in the litigation dispute between the
first respondent and
Investec Bank.
[25]
Section 25 of the Constitution protects the rights of owners of the
property and provides that
a limitation of these rights in favour of
the occupiers will be limited in duration. Once the court decides
that there is no defence
to the claim of eviction and that it would
be just and equitable to grant an eviction order, it is obliged to
grant that order.
[10]
[26]
I have been persuaded to grant the eviction order as no defence
exists against the eviction and
the applicant has made out a case.
ORDER
[27]
The following order is made:
(a)
The first, second, third respondents and all those who occupy the
undermentioned property
by virtue of their occupation thereof,
including their family, servants or employees are evicted from
property:
Erf 56 Stratford
Township; Registration Division: JR Province of Gauteng situated at 6
Nicholas Cresent Stratford Gardens, Broadacres,
2021 (“The
Property”);
(b)
The first, second and third respondents and all those who occupy the
property by virtue
of their occupation thereof, including their
family, servants or employees are ordered to vacate the property
within 45 (forty-five)
court days following the date upon which this
order is granted;
(c)
The first, second, third respondents and all those who occupy the
undermentioned property
by virtue of their occupation thereof,
including their family, servants or employees, fail to vacate the
Property within 45 (forty-five)
court days following the date upon
which this order is granted, the eviction order may be carried out,
in which event the Sheriff
of this court is authorised and directed
to forthwith evict the first, second and third respondents and all
those who occupy the
property by virtue of; through or their
occupation thereof; including their family, servants or employees,
from the property;
(d)
The Sheriff is authorised and directed to take all legal steps to
enforce this Court Order,
including enlisting the services of the
South African Police Services and a locksmith;
(e)
Should the first, second, third respondents and all those who occupy
the undermentioned
property by virtue of their occupation thereof,
including their family, servants or employees attempt to regain
access or possession
of the Property after eviction order has been
executed by the Sheriff and/or his/her authorised deputy, the
applicant shall not
need to approach this court for relief and the
Sheriff- or his/her authorised deputy is hereby authorised and
directed to take
all legal steps to enforce this Court Order,
including enlisting the services of the South African Police Services
and a locksmith
and;
(f)
The first, second, third respondents are ordered to pay the
costs of this application, the one paying the other to be absolved on
a party and party scale.
SENYATSI
ML
Judge
of the High Court of South Africa
Gauteng
Local Division, Johannesburg
REPRESENTATION
Date
of hearing: 28 April 2021
Date
of Judgment: 18 August 2021
Applicant’s
Counsel: Adv B Bhabha
Instructed
by: Bruno Simao Attorneys
First,
Second and Third Respondent’s Counsel: Adv V van der Merwe
Instructed
by: KG Tserkezis Attorneys
[1]
See Pheiffer v Van Wyk and Others
2015 (5) SA 464
(SCA) para [10]
[2]
Same at para [12]
[3]
[2002] ZACC 5
;
2002 (4) SA 768
(CC) at para
[32]
[4]
[1996] ZACC 13
1996 (4) SA 552
(CC)
[5]
1999 (Butterworths) 78 para (e)
[6]
1997(1) SCA
[7]
See Goudim Chrome (Pty) Ltd v MMC Contracts (Pty) Ltd
[1992] ZASCA 208
;
1993 (1) SA 77
(A); (249/91) [1992] ZASCA 186
[8]
2012 (6) SA 294
(SCA)
[9]
See De Rebus, May 2014: 40
[10]
See Occupiers of Erven 87 & 88 Berea v De Wet NO and Another
(CCT 108/16)
[2017] ZACC 18
; 2017(8) BCLR 1015 (CC); 2017 ()5 SA 346
(CC) (8 June 2017)