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[2021] ZAGPPHC 339
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Gerber v Chris Vlok Property Services Tshwane CC (49324/2020) [2021] ZAGPPHC 339 (20 May 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
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Policy
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE
NUMBER: 49324/2020
REPORTABLE:
No
OF
INTEREST TO OTHER JUDGES: No
REVISED:
Yes
Date:
20 May 2021
In the
matter between:
TABITA
GERBER
APPLICANT
and
CHRIS
VLOK PROPERTY SERVICES TSHWANE CC
RESPONDENT
Coram: A
Vorster AJ
Heard: 18
May 2021
Judgment
handed down electronically on 20 May 2021 by uploading the judgment
onto https://sajustice.caselines.com
ORDER
1.
The respondent is ordered to forthwith
deliver the property, […]Street, […], Pretoria, to the
applicant.
2.
Should the respondent fail to deliver the
property, the sheriff for the area in which the property is situated
is ordered and directed
to evict the respondent and eject it from the
property.
3.
The respondent is ordered to pay the cost
of the application on an attorney and client scale.
JUDGMENT
A
Vorster AJ
Introduction
(1)
The applicant is the owner of a residential
property situated in Pretoria. The respondent is in possession
of the property.
The applicant reclaims possession of the property
with the rei vindicatio. The applicant approached the court by
way of motion
proceedings. The respondent opposes the relief on the
basis that it should be allowed to retain the property until its
claims for
expenses incurred in effecting ‘useful improvements’
had been satisfied.
(2)
There are peripheral issues to be decided
separately, namely:
·
whether the applicant made out a case in
her founding affidavit;
·
in the event of the applicant being
successful with her claim against the respondent, whether she is also
entitled to an order vindicating
her property from unnamed
respondents, cited as ‘all persons who hold possession under
the respondent’.
Did
the applicant make out a case in her founding affidavit?
(3)
In her founding affidavit the applicant
alleges that she is the owner of the property, that the respondent is
in possession of the
property, that possession is against her will,
and unlawful. In its answering affidavit the respondent complains
that the applicant
failed to take the court into her confidence by
not disclosing certain antecedent agreements, which at some stage
entitled it to
possession, and precipitated the effecting of ‘useful
improvements’ to the property. The respondent contends that
this
information belonged in the founding affidavit because it points
to the respondent’s defense of ius retentionis. The applicant
dealt with the facts upon which the respondent relied to support its
defense in her replying affidavit and disavowed any reliance
on a
retention lien.
(4)
The general proposition that all the
necessary allegations upon which the applicant relies must appear in
her founding affidavit,
and not in her replying affidavit is sound.
Mandatory precedent is replete with underpinnings for the
proposition, but it will
suffice to refer to
Finishing
Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Limited
and Others
2013 (2) SA 204
(SCA) at
para [26]. The Constitutional Court expanded on the principle in
Molusi and others v Voges NO and
Others
2016 (3) SA 370
(CC) at
para [37]. The Court held that a case made in the notice and
pleadings, may not be different from the case made at trial.
(5)
The question is therefore whether the
applicant makes all the necessary allegations upon which she relies
in her founding affidavit,
and whether the case made in the notice
and founding affidavit, was different from the case made at the
hearing of the application.
The first question should be
answered in the affirmative and the second in the negative.
(6)
The applicant reclaims possession of her
property with the rei vindicatio, and places reliance on her
ownership, and the respondent’s
possession of the property. To
succeed with her claim, she must allege and prove
ownership of
the property [see
Goudini Chrome (Pty) Ltd v MCC Contracts (Pty)
Ltd
[1992] ZASCA 208
;
1993 (1) SA 77
(A) at 82 &
Concor Construction (Cape)
(Pty) Ltd v Santambank Ltd
1993 (3) SA 930
(A)], and that the
respondent was in possession of the property at the time of the
institution of the proceedings [see
Graham v
Ridley 1931
TPD 476 &
Chetty
v Naidoo
1974 (3) SA 13
(A)]. Because
possession of the applicant’s property by the respondent would
be prima facie wrongful, it is not necessary
for the applicant to
allege or prove that the possession is wrongful or against her
wishes. The fact that she did so did
not draw any onus (see
Chetty v Naidoo
supra &
Singh v Santam Insurance
Company Limited
[1996] ZASCA 92
;
[1997] 1 All SA 525
(A),
1997 (1) SA 291
(SCA)].
(7)
There is no duty on the applicant to deal
with any anticipatory defenses, such as the respondent’s
defense of ius retentionis,
in her founding affidavit.
A
founding affidavit is to plead the case put forward by the applicant
and if the answering affidavit raises a defence to which
the
applicant must respond, the response belongs in a replying affidavit.
Not only is this the proper approach under the Uniform
Rules of
Court, it enables the replying affidavit to focus on points actually
raised by the respondent, rather than trying to anticipate
points
that may not be raised at all or, if raised, formulated differently
from the way they were anticipated.
(8)
The respondent, relying on a right, which
in this instance is ius retentionis, to possess the applicant’s
property, must in
its answering affidavit allege and prove the right
[see
Woerman NO v Masondo
[2002] 2 All SA 53
(A),
2002 (1) SA 811
(SCA)]. Should the applicant
refute the right, she must deal with the factual bases for the
refutation in her replying affidavit.
(9)
In argument the applicant’s Counsel
persisted with the applicant’s reliance on the rei vindicatio
and there is accordingly
no merit in the respondent’s
complaint.
Is
the applicant entitled to vindicate her property from unnamed
respondents?
(10)
The applicant not only claims return of
possession of her property from the respondent, but also from ‘all
persons who hold
possession under the respondent’. The
applicant claims consequential relief that those persons be evicted
with the respondent,
should the respondent fail to return possession
of the property to the applicant. The identities of those persons are
not discernable
from the papers, and the court is not informed on
what bases those persons hold possession under the respondent, or the
causa for
their occupation or possession of the property. More
pertinently, there is nothing in the papers to suggest that the
application
was served on or brought to the attention of anyone else
than the respondent.
(11)
There is an important policy consideration
why the relief against ‘all persons who hold possession under
the respondent’
cannot be countenanced. Eviction orders should
not be granted against ‘faceless’ respondents who are not
a clearly
discernable group. Eviction orders should also not be
granted against respondents in the absence of proof that notice of
the proceedings had been given to them by methods prescribed by the
Uniform Rules of Court or approved by Court
.
(12)
The judgments of
Kayamandi
Town Committee v Mkhwaso & Others
1991
(2) SA 630
and
City
of Cape Town v Yawa
and
Others
City of Cape Town v Yawa and Others
(395/04)
[2004] ZAWCHC 5
;
[2004] 2 All SA 281
(C) (29 January 2004) and
Illegal Occupiers of Various Erven
Philippi v Monwood Investment Trust Company (Pty) Ltd
(2002) 1 All SA 115
(C)
, three eviction and
property related matters, significantly examine the situation where
an applicant does not have the identity
of all respondents involved
in a matter and set out the underlying principles pertaining to court
orders.
(13)
In
Kayamandi
Conradie J stated that:
“
a failure
to identify defendants or respondents would seem to be destructive of
the notion that a Court’s order operates only
inter partes ….
An order against respondents not identified by name (or perhaps by
individualised description) in the process
commencing action or (in
very urgent cases, brought orally) on the record would have the
generalised effect typical of legislation.
It would be a decree and
not a Court order at all” (page 634 F-I)
.
“
But
I consider that it is a far cry to say that persons who independently
happen to occupy the same property and who may have quite
different
rights and interests can all be bundled off the property on the
authority of a writ addressed to only one of them“
(page 636).
(14)
Ngwenya J in
Monwood
held that:
“
The
parties in legal proceedings must be clearly identified. There are
serious difficulties when the applicant, as is the case here,
does
not have the requisite details of the respondents. The respondents
did not and do not have the particulars of the appellants.
Regrettably, our rules of procedure here do not assist us at all as
to what to do when faced with this dilemma. Therefore, each
case will
have to be considered on its own merits
.”
(page 121)
“
Furthermore,
the defective service I have referred to above in some detail and the
failure to properly identify the appellants before
the magistrate are
important requirements in bringing a party before court and thus to
satisfy the requirements of the
audi
alteram partem.” (page 123)
(15)
In
Yawa
Budlender AJ endorsed the legal
principle in
Monwood
and
Kayamandi
that
the effect of orders relating to faceless respondents amount to
decrees and not orders.
(16)
Should the persons be natural persons and
the consequential relief is granted, without proper notice and
without clearly identifying
them, they will forfeit the procedural
protection and judicial oversight of the
Prevention
of Illegal Eviction from and Unlawful Occupation of Land Act
,
No. 19 of 1998. In
Molusi
supra
at para [39] the Constitutional Court demands a departure from the
common law principles and practices of land law. At para
39 on pages
853 & 854 the Court held that:
“
The
pre-reform-era land law reflected the common-law based view that
existing land rights should be entrenched and protected against
unlawful intrusions. The land reform legislation – … –
changed that view. It highlights the reformist view that
the common
law principles and practices of land law … in eviction cases,
need to change.”
(17)
Even if it was historically competent and
permissible for courts to grant eviction orders against ‘persons
who hold possession
through or under a respondent’, without
proper notice and without clearly
identifying them
, such practices can no
longer be accepted without due regard to the objective, normative
value system established by the
Constitution
.
In consideration of the authorities quoted and the lack of
particularity in the papers relating to persons who ‘occupy
under the respondent’, and in the absence of proof that they
have knowledge of the proceedings, I am not prepared to grant
any
relief that will operate against them.
Background
facts
(18)
The relevant facts in this matter are
either common cause or not disputed on any credible grounds. The
applicant is the owner of
a residential property situated at […]
Street in […], Pretoria. The applicant lives in the United
Kingdom. The property
stood empty since November 2016 and placed on
the market to be sold since that date. In 2017 the property was
burgled and
completely ransacked. Everything was stolen, from the
electrical and plumbing fittings to the doors, gate motors, and even
the
kitchen sink and front door.
(19)
On 13 January 2017 the applicant executed
letters of authority to a certain Mr. Dunbar to ‘act on my
(her) behalf in all matters
of the said property (sic)’. Dunbar
negotiated a lease agreement with a certain Mr. Vlok, the deponent to
the answering affidavit
who is a member of the respondent. On 29
January 2017 the applicant and Vlok signed a written lease agreement
in terms of which
he rented the property from the applicant. Vlok
signed the agreement on 28 January 2017 and the applicant
countersigned the agreement
on 29 January 2017. Although not
expressly stated it would seem that subsequent to the conclusion of
the lease Vlok did not take
possession and occupation of the
property, the respondent did.
(20)
The duration of the lease agreement was a
period of one year, with an option to buy the property during the
validity period of the
lease. The agreement specified that Vlok was
not permitted to carry out any alterations, additions, or
improvements to the property,
without the prior approval of the
applicant. The agreement contained a clause which specified that all
fixtures stolen during the
burglary were to be replaced with the same
or similar fixtures. The clause did not specify who should replace
the fixtures but
according to Vlok, the understanding was that he
would, and the applicant would reimburse him. Vlok ultimately
replaced the fixtures
and was reimbursed by the applicant from funds
she received from her insurance.
(21)
When Dunbar negotiated the lease, Volk
indicated that he intended operating a restaurant from the property.
Dunbar cautioned Vlok
that the property was zoned residential and
provided Vlok with the property’s zoning certificate. Vlok was
undeterred by
this advice and was adamant that he would be successful
in applying to the local authority, being the City of Tshwane, to
have
the property rezoned from residential to business. Vlok
indicated that if he was unable to do so he would nonetheless buy the
property.
On 2 February 2017 the applicant executed a written
consent, authorizing Vlok to apply to the local authority to have the
property
rezoned from residential to business.
(22)
After the applicant executed the consent,
the respondent, who was not a party to the lease agreement, applied
to the local authority
to have the property rezoned. Before approval
was obtained, the respondent started carrying out structural
alterations and modifications
to the property to realize its
development goals of converting the residential property into a
restaurant.
(23)
The application for rezoning of the
property was ultimately unsuccessful or not prosecuted to fruition,
and at some stage, the exact
date does not appear from the papers,
the local authority changed the rating category of the property from
residential to
'non-permitted use' or 'illegal use', and levied rates accordingly.
This change in rating category was ostensibly because the respondent
operated a restaurant from the property, which use was contrary to
the provisions of the local authority’s town planning
scheme.
The effect of this categorization by the local authority is that not
only did the applicant as owner of the property lost
the benefit of a
rebate, but also became liable to pay a higher rate.
(24)
The lease agreement expired without Vlok
exercising his option to buy the property. After expiry of the
agreement Vlok negotiated
with the applicant, through Dunbar, to buy
the property. Vlok was presented with a draft sale agreement in
February 2018 in which
he was cited as the purchaser. Vlok requested
Dunbar to substitute him as the purchaser with the respondent. On 13
March 2018 the
respondent, and the applicant, represented by Dunbar,
concluded a written sale agreement. The agreement provided for the
respondent
to pay occupational rent and provide a guarantee for the
purchase price before 31 May 2018. The respondent also assumed
responsibility
to pay all municipal debts.
(25)
The respondent did not provide the
guarantee, fell in arrears with the occupational rent, and neglected
to pay the municipal debts.
Due to the breach the applicant cancelled
the agreement on 24 June 2020.
Does
the respondent have an improvement lien for expenses incurred in
converting the residence into a restaurant?
(26)
It is not disputed that either Vlok or the
respondent incurred expenses in carrying out structural alterations
and modifications
to the property to convert it from a residential
property to a restaurant. It is further common cause that there was
no agreement
between the applicant and / or Vlok and the respondent
relating to these alterations and modifications. There is a factual
dispute
as to whether the applicant was aware of the fact. However,
on the facts of this case the applicant’s knowledge is not
germane
to the enquiry as to whether Vlok and / or the respondent
have an improvement lien for these expenses. The central
question
is whether the expenses may be recovered on the basis that
the alterations and modifications were necessary and / or useful.
(27)
The general legal principals relating to an
enrichment lien was described in
Business
Aviation Corporation (Pty) Ltd and another v Rand Airport Holdings
(Pty) Ltd
2006 (6) SA 605
(SCA) as
follwos:
·
bona fide
possessors
have an enrichment claim for the recovery of expenses that were
necessary for the protection or preservation of the property
(impensae necessariae), as well as for expenses incurred in effecting
useful improvements to the property (impensae utiles);
·
bona fide
possessors,
who are still in possession of the leased property, have an
enrichment lien (ius retentionis) that allows them to retain
the
property until their claims for compensation had been satisfied.
(28)
In
Brooklyn
House Furnishers (Pty) Ltd v Knoetze and Sons
(1970) 3 SA 264
(A)
the
following was stated:
“
'n
Retensiereg, jus retentionis , is die reg wat die besitter van 'n
saak van iemand anders, waaraan hy geld of arbeid bestee het,
verkry
om die saak in sy besit te hou totdat hy volgens ooreenkoms of, waar
daar geen ooreenkoms was nie, vir sy werklike uitgawes
of arbeid,
maar hoogstens tot die mate van die eienaar se verryking, behoorlik
vergoed is.
Retensieregte
vir bewaring en verbetering van die saak is saaklike regte en
ontstaan nie uit oreenkoms nie. Hulle is gefundeer op
die beginsel
50.17.206 dat jure naturae aequum est neminem cum alterius detrimento
et injuria fieri locupletiorem . Waar daar geen
verryking vir die
eienaar van die saak is nie, kan geen sodanige retensiereg tot stand
kom nie.
“
(29)
The aim of the ‘improvements’
carried out by the respondent was to convert the residential property
into a restaurant.
In terms of zoning of the property in the
Tshwane
Town Planning Scheme
, 2008 (revised
2014) the use of the property is restricted to residential. In terms
of section 26 of the
Spatial Planning
and Land Use Management Act
, No. 16 of
2013 the Scheme, which is an adopted and approved land use scheme,
has the force of law, and all landowners and users
of land are bound
by the provisions of the Scheme.
(30)
Having regard to the zoning of the
property, and the force of the Scheme, the property may only be used
for residential purposes.
Any alternative use, such as a
restaurant, will only be permitted if application was successfully
made
to the local authority
in
terms of the
City of Tshwane Land Use
Management By-laws
to allow for
rezoning
of the property
,
or
a
consent use, which represent the granting of
development rights without changing the formal zoning of the
property.
(31)
It is common cause that the rezoning of the
property from residential to business (restaurant) was not approved
or not prosecuted
to fruition, and there is no evidence that the
local authority consented to the use of the property as a restaurant.
The fact that
the local authority changed the rating category of the
property from residential to
'non-permitted use' or 'illegal use' points indubitably to the
opposite.
The use of the
property as a restaurant is not permitted and illegal. The
consequences of the non-permitted and illegal land use
do not only
attach to the respondent but also the applicant.
(32)
The applicant, as owner of the property, is
rendered liable to criminal prosecution. Bylaw 36 of the
City
of Tshwane Land Use Management By-Law
,
2016 provides as follows:
‘
(1)
An owner and/or other person are guilty of an offence if such owner
or person:
(a)
contravenes or fails to comply with a:
(i)
…
;
(ii)
provision of the Land Use Scheme or
amendment scheme;
(iii)
uses land or permits land to be used
in a manner other than permitted by the Land Use Scheme or amendment
scheme;
(iv)
…
;
(v)
…
;
(b) alters
or destroys land or buildings to the extent that the property cannot
be used for the purpose
set out in the Land Use Scheme or zoning
scheme;
(c) …;
(d) …;
or
(e) ...
(2) An
owner who permits land to be used in a manner contemplated in
subsection (1) and who does not cease
such use or who permits a
person to breach the provision of subsection (1) is guilty of an
offence and upon conviction is liable
to the penalties contemplated
in subsections (3) and (4).
(3) Any
person convicted of an offence in terms of this By-law, shall be
liable to a fine not exceeding
R5 000 or as may be determined by a
Court of Law or to imprisonment for a period not exceeding 12 months
or both such fine and
such imprisonment.
(4) A
person convicted of an offence under this By-law who, after
conviction, continues with the action
in respect of which he/she was
so convicted, is guilty of a continuing offence and liable to a fine
not exceeding R5000, or upon
conviction, to imprisonment for a period
not exceeding three months or to both such fine and imprisonment, in
respect of each day
for which he/she has so continued or continues
with such act or omission.’
(33)
The applicant also attracts civil liability
for the pu
nitive
rates imposed on the property as a result of it being categorized as
non-permitted use [see
City
of Tshwane v Marius Blom & GC Germishuizen Inc and Another
(433/2012)
[2013] ZASCA 88
;
[2013] 3 All SA 481
(SCA);
2014 (1) SA
341
(SCA) (31 May 2013)].
(34)
It is perverse and absurd for the
respondent to contend that the ‘improvements’ carried out
in converting the property
from a residence to a restaurant are
useful. Not by furthest stretch of the imagination can it be accepted
that expenses incurred
in altering the property to the extent that it
cannot be used for the purpose set out in the land use or zoning
scheme could in
any shape or form enrich the applicant. It is
inimical
and contrary to the law that the respondent should be allowed to
benefit from conduct which gives rise to an illegality.
(35)
For the applicant to extract any value from
the property, whether by sale or lease, and exonerate herself from
criminal and civil
lability, she will have to restore the property to
a residence, by removing all the structural changes carried out by
the respondent.
She needs to act post haste before the local
authority institute criminal proceedings against her, and she must
mitigate the deleterious
effect of the imposition of punitive rates
by ensuring that the property is no longer used contrary to the
Tshwane Town Planning Scheme
.
I cannot conclude that the ‘improvements’ are useful. The
contrary is true, the ‘improvements’ detract
from the
value of the property and create a liability for the applicant.
(36)
As a result, the respondent’s defense
of ius retentionis cannot defeat the applicant’s claim for
return of her property.
The respondent should forthwith
surrender possession and delver the property to the applicant.
Costs
(37)
The applicant contends that punitive costs
should be awarded on an attorney and client scale. In
Public
Protector v South African Reserve Bank
2019
(6) SA 253
(CC) at para 8, Mogoeng CJ in the majority judgment noted
that ‘[c]osts on an attorney and client scale are to be awarded
where there is fraudulent, dishonest, vexatious conduct and conduct
that amounts to an abuse of court process.’ In the minority
judgment Khampepe J and Theron J further noted that ‘a punitive
costs order is justified where the conduct concerned is
“extraordinary” and worthy of a court’s rebuke’.
Both judgments referred to
Plastics
Convertors Association of SA on behalf of Members v National Union of
Metalworkers of SA and Others
(2016)
37 ILJ 2815 (LAC) at para 46, in which the Labour Appeal Court
stated:
“
The scale
of attorney and client is an extraordinary one which should be
reserved for cases where it can be found that a litigant
conducted
itself in a clear and indubitably vexatious and reprehensible manner.
Such an award is exceptional and is intended to
be very punitive and
indicative of extreme opprobrium.”
(38)
To determine whether the respondent should
pay costs on an attorney and client scale it needs to be established
whether the respondent’s
opposition was frivolous and vexatious
and amounted to an abuse of the court process.
(39)
The respondent never had a realistic chance
of defeating the applicant’s claim based on an alleged ius
retentionis.
The ‘improvements’ precipitated an
illegality, and the respondent could not in good conscience have
believed that the
‘improvements’ were useful. It
should have been apparent to the respondent that the only conceivable
outcome
for the applicant would be to remove the improvements and
restore the property to a residence. To persist with a completely
untenable
defense is prima facie frivolous and vexatious.
(40)
What compounds the criticism of the
respondent’s conduct is that the applicant, notwithstanding the
absence of a legal requirement
to do so, offered to set security for
the respondent’s claim, on condition that the respondent
voluntarily vacates the property.
It is apparent from the
respondent’s conduct that it had no intention to resolve the
disputes with the applicant amicably,
but was intent on retaining
unlawful possession of the property for as long as possible. The
cumulative effect of the respondent’s
conduct, namely, to
refuse to entertain bona fide attempts to settle the disputes, and to
persist with an unsustainable defense,
amounts to an abuse of the
court process and calls for a cost order on an attorney and client
scale.
Conclusion
(41)
For these reasons the following order is
made:
(41.1)
The respondent is ordered to forthwith
deliver the property, […] Street, […], Pretoria, to the
applicant.
(41.2)
Should the respondent fail to deliver the
property, the sheriff for the area in which the property is situated
is ordered and directed
to evict the respondent and eject it from the
property.
(41.3)
The respondent is ordered to pay the cost
of the application on an attorney and client scale.
A.
VORSTER AJ
Acting Judge of the
High Court
Date
of hearing: 18 May 2021
Date
of judgment: 20 May 2021
Counsel
for the applicant: Adv. J. Stroebel
Instructed
by: Van Rensburg Koen & Baloyi Attorneys
Counsel
for the respondent: Adv. W. Pretsch
Instructed
by: M.J. Lombard Incorporated