Knuttel N.O. and Others v Bhana and Others (38683/2020) [2021] ZAGPJHC 874; [2022] 2 All SA 201 (GJ) (26 August 2021)

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[2021] ZAGPJHC 874
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Knuttel N.O. and Others v Bhana and Others (38683/2020) [2021] ZAGPJHC 874; [2022] 2 All SA 201 (GJ) (26 August 2021)

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Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 38683/2020
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED:
YES
In
the matter between:
JENNIFER
ANN KNUTTEL N.O.
(In
her capacity as a duly appointed
and
authorised
trustee
of the Knuttel Family Trust, IT 3753/96
)
First Applicant
SARAH
ANN KNUTTEL N.O.
(In
her capacity as a duly appointed
and
authorised
trustee
of the Knuttel Family Trust, IT 3753/96)
Second Applicant
FRANZ
JOSEF KNUTTEL N.O.
(In
his capacity as a duly appointed
and
authorised
trustee
of the Knuttel Family Trust, IT 3753/96)
Third Applicant
and
ZOBEIDA
BHANA
(ID
Number
[....])
First Respondent
FAZEL
BHANA
Second Respondent
THE
UNLAWFUL OCCUPIERS OF UNIT 31
Third Respondent
CITY
OF JOHANNESBURG METROPOLITAN
MUNICIPALITY
Fourth Respondent
Summary
:
Practice – procedure – Regulation 3(1) of the Regulations
Governing the Administering of an Oath or Affirmation requiring

signature by deponent to declaration in  presence of a
commissioner of oaths – deponent infected with COVID19 unable

to sign Founding Affidavit in presence of commissioner of oaths
–Held, signature appended to Founding Affidavit during WhatsApp

video call between deponent and commissioner of oaths, together with
ancillary precautionary measures testified to, constituted

substantial compliance with Regulation 3(1)
Eviction
– occupier of property relying on enrichment lien against
application in terms of Prevention of Illegal Eviction
from and
Unlawful Occupation of Land Act, 19 of 1998 (“PIE Act”)
for eviction – Held, (
obiter
paragraphs [9] and [10] following
Rekdurum
(Pty)
Ltd
v
Weider
Gym
Athlone
(Pty)
Ltd
1997
(1)
SA
646
(
C
)
at
654D
),
due to the principle that lienholder not entitled to make use of
property subject to lien during exercise of lien, general defences
to
applications for eviction in terms of PIE Act upholding a right to
occupy property not generally available to a
retentor
who exercises a
ius
retentionis
founded on enrichment over immovable property
Possession
– immovable property – right to occupy property pending
transfer conferred on purchaser in terms of Agreement
Of Sale –
purchaser  informally granting right of pre-transfer occupation
of property to non-party to Agreement Of Sale
– Held (paragraph
[100] following
De
Jager
v
Harris
N.O.
and
The
Master
1957
(1)
SA
171
(SWA)
at
175C-E
), no independent
possessory right in favour of informal occupier of property –
informal occupier’s occupation of property
derived from
overarching right of possession conferred on purchaser in terms of
Agreement Of Sale - informal occupier’s occupation
of the
property not a relinquishment of the purchaser’s possession
Contract
– term – applicability to non-party to a contract - term
of Agreement Of Sale requiring written consent of
seller to purchaser
for any improvements to property pending transfer – Held
(paragraphs [97], [98], [99], [100], [101],
[102] and [103] following
African
Films
Trust,
Ltd.
v.
Reid
and
Dunye
1918
WLD
22
at
23-24
and
De
Jager
v
Harris
N.O.
and
The
Master
(supra)
), term also
applicable to non-party informal occupier of property –
non-party informal occupier of property effecting improvements
to
property without written consent of seller – purchaser
defaulting and seller cancelling Agreement Of Sale and claiming

re-delivery of property from purchaser – Held (paragraph [102]
following
Palabora
Mining
Co
Ltd
v
Coetzer
1993
(3)
SA
306
(T)
at
309F-H
), enrichment lien set up by non-party
informal occupier of property foiled by non-compliance with term of
Agreement Of Sale requiring
written consent of seller to improvements
Enrichment
lien – exercise of – possession required of a lienholder
known as
possessio
naturalis
– comprises both a
physical and a mental element – in order to preserve the
security, the required elements of
detentio
and
animus
possidendi
must exist simultaneously from moment of exercise
of lien – cancellation of Agreement Of Sale by seller due to
purchaser’s
breach– purchaser initially resisting claim
for re-delivery of property by exercise of enrichment lien –
one month
later in Answering Affidavit to application for eviction,
purchaser switching hats as lienholder with informal occupier of
property
– Held (paragraph [87]), element of
animus
possidendi
over property absent from non-party occupier’s
claim to lien for the initial period when purchaser was exercising
same lien
– Held accordingly (paragraphs [92] and [93]),
enrichment lien exercised by informal occupier of property could not
have
been in existence at time seller was entitled to vacant
possession of property
Ius
retentionis
–
cannot exist in isolation – serves as a reinforcement of an
underlying claim – Held (paragraph [107]), no right
of
retention of property can exist in the absence of proof of such
underlying claim
In
answer to an application brought by the applicants, who are trustees
of the Knuttel Family Trust (“the trust”), in
terms of
the Prevention Of Illegal Eviction From And Unlawful Occupation Of
Land Act,19 of 1998 (the PIE Act”) for the eviction
of the
first, second and third respondents from an immovable property that
the trust had sold  to the First Respondent, the
first, second
and third respondents submitted in limine that the applicants’
Founding Affidavit did not conform to Regulation
3(1) of the
Regulations Governing the Administering of an Oath or Affirmation,
which requires the deponent to have signed the Founding
Affidavit in
the presence of the Commissioner of Oaths.
At
the time of deposing to the Founding Affidavit, the deponent was
infected with COVID19, which made it impossible for her to sign
the
Founding Affidavit in the presence of the Commissioner of Oaths. The
applicants’ attorney had arranged for the deponent
to sign the
Founding Affidavit during a WhatsApp video call with the Commissioner
of Oaths. The applicants’ attorney gave
a first-hand account in
an Affidavit of the measures taken by him and the deponent to satisfy
the Commissioner of Oaths that the
counterpart in the WhatsApp video
call was the deponent.
Held,
that the steps taken to satisfy the Commissioner of Oaths as to the
identity of the deponent, together with all the other
precautionary
measures testified to, constituted substantial compliance with
Regulation 3(1) of the Regulations Governing the Administering
of an
Oath or Affirmation.
Turning
to the merits, the First Respondent had taken occupation of the
property sold to her by the trust pending transfer thereof
into her
name. The Agreement Of Sale forbade improvements to the property
pending transfer into the First Respondent’s name,
unless
consented to in writing by the trustees of the trust.
To
the knowledge of the trustees, the First Respondent purchaser of the
property, who lived in another property in the same complex
as that
sold to her by the trust, informally allowed her son, the Second
Respondent, to occupy the property.
During
the course of his informal occupation of the property, the Second
Respondent, without him or his mother the First Respondent
obtaining
the prior written consent of the trustees, effected certain
improvements to the property, allegedly with the oral consent
of the
trustees to the Second Respondent.
When
the trustees at a later stage cancelled the Agreement Of Sale due to
the First Respondent’s material breaches thereof,
the First
Respondent resisted the trustees’ accompanying demand for
return of vacant possession of the property, inter alia
on the basis
of an enrichment lien for the cost of the improvements, which the
First Respondent claimed had been effected at her
expense.
Later,
however, in the Answering Affidavit in opposition to the urgent
application brought by the trustees for the eviction of all
parties
occupying the property, the First Respondent switched hats as
lienholder with the Second Respondent, who then alleged that
it was
he who had effected the improvements to the property at his cost.
The
Second Respondent informal occupier of the property sought to avoid
the requirement of written consent of the trustees to the

improvements by claiming that the contractual embargo on improvements
to the property without their written consent did not extend
to him
as a non-party to the Agreement Of Sale. He then also relied on the
oral consent that he alleged the trustees had given
him for the
improvements.
There
was a lack of any satisfactory evidence to substantiate the cost of
the improvements to the Second Respondent and the level
of utility
thereof to the trust. The evidence was also duplicitous as to whether
the cost of the improvements had been incurred
by the First
Respondent or the Second Respondent.
Held
(
obiter
), notwithstanding the trust’s resort to the PIE
Act as a mechanism for claiming eviction of all occupiers from the
property,
due to the principle that a lienholder is not entitled to
make use of the property subject to the lien during the exercise of
the
lien, the general defences available to eviction applications in
terms of the PIE Act were not available to the Second Respondent
as a
retentor
exercising a right of retention founded on enrichment
(paragraph [104]).
Held
further, that the informal right to occupy the property that was
granted by the First Respondent to the Second Respondent did
not
confer an independent possessory right on the Second Respondent,
whose occupation of the property remained subject to the overarching

possessory right afforded to the First Respondent in the Agreement Of
Sale, which right the First Respondent did not relinquish
through
allowing the Second Respondent to informally occupy the property.
Accordingly
held, the effecting of the improvements to the property without the
required written consent of the trustees as prescribed
by the
Agreement Of Sale, which would have been inimical to the exercise of
an enrichment lien in respect of the improvements by
the First
Respondent, was equally inimical to the exercise of the same lien by
the Second Respondent (paragraph [105]).
Held
further, the initial claim to the lien by the First Respondent had
the effect of depriving the Second Respondent of the necessary
animus
possidendi
required to accompany his
detentio
of the
property at the crucial moment when the trust seller became entitled
to vacant possession thereof. This absence of
animus
possidendi
ie. the act of possessing the property as an
expression of an intention to exercise an enrichment lien, was
eclipsed by the First
Respondent’s exercise of the same lien at
the moment when the seller trust became entitled to vacant possession
of the property.
Held accordingly, there was no evidence of a lien
exercised by the Second Respondent.
Held,
finally, a right of retention of property serves as reinforcement of
an underlying claim of which there was no satisfactory
evidence by
the Second Respondent. Held accordingly, the right of retention
claimed by the Second Respondent existed in isolation
unaccompanied
by the required proof of an underlying claim to sustain the right
(paragraph [107]).
Application
for eviction upheld.
JUDGMENT
KATZEW,
AJ
:
INTRODUCTION
[1]
This is an application by the
applicants in their capacities as trustees in a trust for eviction of
the First Respondent, and through
her the Second Respondent and his
Family, from a property belonging to the trust, in terms of the
Prevention Of Illegal Eviction
From And Unlawful Occupation Of Land
Act, 19 of 1998 (“
the
Act
”).
[2]
By way of introduction, the relief
sought in the
Notice
Of
Motion
was formulated by the applicants at a time when the First Respondent
was contending for a right to occupy the property belonging
to the
trust,
inter
alia
by
virtue of an alleged extant agreement of sale of the property to her
by the applicants, which included certain provisions for
her to
occupy the property ahead of transfer thereof into her name.
[3]
It is not in dispute that during
this period of agreed pre transfer occupation of the property by the
First Respondent, she occupied
the property through her son the
Second Respondent and his Family, with the knowledge of the
applicants.
[4]
The application for eviction was
premised on the basis of the First Respondent’s refusal to
acknowledge the validity of two
notices to her, firstly of the
applicants’ cancellation of the agreement of sale of the
property to her, and secondly, of
the applicants’ demand for
vacant possession thereof, that were both given before the
application was launched.
[5]
In the midst of this dispute
surrounding the validity of the cancellation of the agreement of sale
and of the concomitant right
of the applicants to be provided with
vacant possession of the property, the applicants were obliged to
resort to
the
Act
in
order to secure vacant possession of the property via the eviction
therefrom of the First Respondent, and through her, the Second

Respondent and his Family.
[6]
Subsequent to the filing of all the
competing papers in the application, and some three and a half months
after the cancellation
of the agreement of sale, the First
Respondent, in her and the Second Respondent’s counsels’
heads of argument, acknowledged
for the first time that the
cancellation of the agreement of sale of the property to her by the
applicants was lawful. This concession
had the effect of eclipsing
the allegation of an extant agreement of sale of the property as a
basis for the First Respondent’s
resistance to the applicants’
claim for vacant possession thereof.
[7]
This concession notwithstanding, the
First Respondent did not back down on her refusal to provide vacant
possession of the property
to the applicants. The reason herefor is
that she has at all material times since the delivery of the
Answering
Affidavit
identified with the Second Respondent’s contention that he
holds an enrichment lien over the property for the cost occasioned
to
him of alterations and improvements that he claims to have effected
to the property, allegedly with the oral consent of the
applicants.
In one of the anomalies of the application, the First Respondent had
previously contended for the same lien, but in
her name, between
notice of cancellation of the Agreement Of Sale and the delivery of
the
Answering
Affidavit
.
[8]
The matter accordingly distils to an
application for eviction from the property of the First Respondent,
and through her the Second
Respondent and his Family, which the First
Respondent and the Second Respondent now contest on the basis of a
right of retention
(
ius
retentionis
)
in favour of the Second Respondent arising out of the alleged unjust
enrichment of the applicants by the cost occasioned to the
Second
Respondent of effecting the improvements to the property and of the
alleged increase in value of the property as a result
of the
improvements.
[9]
Despite the applicants’ resort
to the
Act
as a procedural mechanism for the eviction from the property of the
First Respondent, and through her the Second Respondent and
his
Family, the principles relating to eviction claims are not applicable
in
casu
.
If the First Respondent and the Second Respondent fail to discharge
the onus resting on them to prove the enrichment lien set
up by the
Second Respondent as a basis for denying vacant possession of the
property to the applicants, there will be no other
issues on the
merits that will influence the decision of the Court to grant the
eviction orders as sought in the Notice Of Motion.
[10]
Neither for that matter have the
First Respondent and the Second Respondent proffered any meaningful
defences in terms of the
Act
to the application for the First Respondent’s, and through her
the Second Respondent’s and his Family’s, eviction
from
the property.
[10.1]
It is common cause that the First
Respondent lives with her Family in other premises in the same
complex as the property, and therefore
does not require the property
for her own accommodation.
[10.2]
In paragraph 83 of the
Answering
Affidavit
,
the Second Respondent confines the inconvenience that would be posed
to him and his Family by eviction from the property to the
December
2020 holiday period, which has already passed.
[10.3]
Although the First Respondent’s and
the Second Respondent’s counsel conclude their heads in
paragraph 85 by pointing
out that the applicants do not explain
anywhere or argue why it would be just and equitable for the Court to
order the eviction
from the property of the First Respondent, and
through her the Second Respondent and his Family, the argument was
not seriously
pursued, and neither is there any scope for pursuit of
such an argument.
[10.4]
A
further consideration is that while a lienholder is entitled to
retain possession of the property as security for his claim against

the owner of the property, he is not entitled to make use of the
property during the exercise of the lien (see in this regard
Rekdurum
(Pty)
Ltd
v
Weider
Gym
Athlone
(Pty)
Ltd
[1]
).
[10.5]
This has the result that the Second
Respondent is not entitled to set up a right of occupation of the
property during the exercise
of his alleged enrichment lien.
[10.6]
This issue has been neutralized
in
casu
by
agreement between the parties in a Court Order referred to later on
in the judgment for the First Respondent, and through her
the Second
Respondent and his Family, pending final disposal of the application,
to remain in occupation of the property on certain
terms and
conditions as set out in the order.
[11]
There are two ancillary issues
raised by the First Respondent and the Second Respondent in the
application. The pursuit of these
issues, after the First
Respondent’s concession of the primary relief sought in
paragraph 2 of the Notice Of Motion that
the agreement of sale was
lawfully cancelled by the applicants prior to the launch of this
application, is anomalous to say the
least. However, the First
Respondent and the Second Respondent have chosen not to abandon these
issues, even after the First Respondent
had conceded the primary
relief in the Notice Of Motion, with the result that the Court is
required to consider them. The issues
are as follows:
[11.1]
whether the applicants have duly authorised
these proceedings; and
[11.2]
whether there was substantial compliance
with the requirements for the commissioning of the oath to the
Founding
Affidavit
.
[12]
The following are sub-issues under
the issue of the alleged lien in favour of  the Second
Respondent:
[12.1]
Given that a right of retention can never
exist in isolation, but always serves as reinforcement of an
underlying claim, has the
Second Respondent tendered satisfactory
evidence of an underlying enrichment action against the applicants?
[12.2]
Is the Second Respondent as a non-party to
the agreement of sale of the property between the applicants and the
First Respondent
bound by the clause therein (of which the Second
Respondent was aware at all material times) prohibiting alterations
to the property
during the pre-transfer occupation of the property
without the written consent of the applicants?
BACKGROUND
FACTS
[13]
The background facts to the
application are that the applicants, trustees in the Knuttel Family
Trust, sold Portion 31 of Erf [....]
Houghton Estate Township,
Registration Division I.R. Province of Gauteng Measuring 494 square
metres Held under Deed of Transfer
T[....] (“the Property”)
to the First Respondent in terms of an Agreement Of Sale dated 30
th
January 2020. The conventional description of the Property is Unit
31, Royal Houghton, Third Street, Houghton Estate, Johannesburg.
[14]
In terms of certain provisions of
the Agreement Of Sale, the First Respondent took occupation of the
Property pending transfer into
her name. It is not in dispute that
the applicants were at all material times aware that the First
Respondent occupies the Property
through her son, the Second
Respondent, and his Family.
[15]
The evidence deposed to by the
Second Respondent in the
Answering
Affidavit
,
and confirmed by the First Respondent in a
Confirmatory
Affidavit
,
indicates that the Second Respondent and his Family’s
occupation of the Property through the First Respondent was a private

arrangement between the First Respondent and the Second Respondent.
The arrangement never assumed any formal contractual status.
Until
novation of the relevant terms of the Agreement Of Sale by the order
of the Honourable Dippenaar, AJ which is referred to
in more detail
later on in the judgment, The First Respondent remained the occupier
of the Property in terms of the Agreement Of
Sale and exclusively
liable for payment of occupational rent to the applicants and other
monthly expenses relating to the Property
to the Homeowners
Association of the complex wherein the Property is situate.
[16]
Accordingly, despite the Second
Respondent’s physical occupation of the Property with his
Family through the First Respondent,
there was never any direct
contractual nexus between the applicants and the Second Respondent.
(Much was made hereof in argument,
especially in relation to whether
the restriction in clause 3 of the Agreement Of Sale on the right of
the First Respondent to
effect improvements to the Property unless
authorised in writing by the applicants, extended to the non-party
Second Respondent.)
[17]
The occupation of the Property by
the First Respondent on this basis endured for a period of exactly 9
months before the applicants
cancelled the Agreement Of Sale on 30
th
October 2020 due to un-remedied breaches by the First Respondent.
Pursuant to the notice of cancellation, the applicants
demanded
from the First Respondent to be provided with vacant occupation of
the Property by 5
th
November 2020.
[18]
In response to the notice of
cancellation of the Agreement Of Sale and the notice to provide
vacant occupation of the Property to
the applicants by 5
th
November 2020, the First Respondent’s attorney wrote to the
applicants’ attorney advising that the First Respondent
would
not be providing vacant occupation of the Property to the applicants
on 5
th
November 2020 as demanded, or at all, for the following two reasons:
[18.1]
the Agreement Of Sale was never lawfully
cancelled; and
[18.2]
the First Respondent has an enrichment lien
over the Property in lieu of the cost to her of improvements she had
effected to the
Property, which had considerably enhanced the value
of thereof.
[19]
As a result of this recalcitrant
approach adopted by the First Respondent to the notice of
cancellation of the Agreement Of Sale
and to the notice to provide
vacant occupation of the Property to the applicants by 5
th
November 2020, on 24
th
November 2020 the applicants launched an
ex
parte
application to the Court for leave to initiate eviction proceedings
against the First Respondent and the Second Respondent in terms
of
the
Act
.
On the same day, namely 24
th
November 2020, the Honourable Wright, J granted the
ex
parte
application and made the following order:
“
1.
The form and contents of the notice in terms of
Section 4(2)
of the
Prevention of Illegal Eviction From and Unlawful Occupation of Land
Act, 19 of 1998
, which is annexed to the applicants’ ex parte
Notice of Motion as Annexure “
XA”
(“the Notice”) is authorised.
2.
The applicants are authorised and directed to serve the Notice
together with a copy of this
order on the respondents at the
addresses set out in the Notice and in accordance with the provisions
of rule 4(1) of the Uniform
Rules of Court.
3.
Costs of this application will be costs in the cause.”
[20]
Armed with this order, the
applicants pursued the application for the eviction of the First
Respondent and the Second Respondent
from the Property on an urgent
basis. Within little more than two weeks from date of authorisation,
the application for eviction
was set down for hearing on the urgent
roll of 15
th
December 2020 before the Honourable Dippenaar, AJ.
[21]
By this stage, the full set of
competing papers in the application had been filed.
[22]
The urgency in the matter must have
been defused by agreement between the applicants and the First
Respondent and the Second Respondent
because, without pronouncing on
any aspect of the application including whether it was indeed urgent,
the Honourable Dippenaar,
AJ postponed the application as per the
following order:
“
1.
The application is postponed sine die and will be set down in due
course on the opposed motion roll;
2.
Pending final disposal of the application or until such other time as
otherwise
ordered by the Court:
2.1
the first and second respondents shall not effect any further
improvements and/or renovations
and/or alterations and/or additions
to the Property without the written consent of the applicants;
2.2
the first and second respondents shall maintain the Property in its
current condition;
2.3
the first and second respondents shall jointly and severally the one
paying the other to
be absolved, make payment of the levies due to
the home owners association as well as all consumption charges
relating to the property
within 7 days of presentation by the
applicants of the applicable vouchers and/or invoices evidencing the
levies and consumption
charges;
3.
Pending the hearing of the application the first and second
respondents shall
jointly and severally the one paying the other to
be absolved, make monthly payments of R35 000,00 to the
applicants, the
first payment to be made on or before the 1
st
day of each succeeding month, it being recorded that the applicants
accept the payments without prejudice to its rights;
4.
The applicants shall deliver their heads of argument by no later than
25 January
2021;
5.
The first and second respondents’ heads of argument shall be
delivered
by no later than 5 February 2021;
6.
The costs of the hearing of 15 December are reserved.”
[23]
Pursuant to this order, the
applicants and the First Respondent and the Second Respondent
exchanged heads of argument with competing
submissions on the
following defences raised by the First Respondent and the Second
Respondent in the
Answering
Affidavit
:
[23.1]
The application was not urgent when it came
before the urgent Court.
[23.2]
The applicants in their capacities as
trustees of the Knuttel Family Trust did not authorise the
institution of the proceedings.
[23.3]
The
Founding
Affidavit
was not signed by the deponent in the presence of the Commissioner Of
Oaths, which is in conflict with the Regulations Governing
the
Administering of an Oath or Affirmation.
[23.4]
The Agreement Of Sale was not lawfully
terminated in terms of its cancellation provisions due to an omission
by the applicants to
deliver a notice to the First Respondent in
terms of clause 11 of the Agreement Of Sale calling upon the First
Respondent to remedy
her breach of the Agreement Of Sale under pain
of cancellation.
[23.5]
With the oral consent of the applicants,
the Second Respondent had effected improvements to the Property at a
cost to him of R1
265 000.00 (significantly it was no longer the
First Respondent who had effected the improvements to the Property,
as had initially
been indicated in the First Respondent’s
attorney’s letter written in response to the applicants’
demand to the
First Respondent to be provided with vacant occupation
of the Property by 5
th
November 2020 – more will be said hereon later on in the
judgment), which improvements have also considerably enhanced the

value of the Property, and which have accordingly conferred an
enrichment lien over the Property on the Second Respondent (once

again the change of lienholder needs to be emphasized) pending
compensation by the applicants to the Second Respondent for their

enrichment at his expense.
[24]
Urgency remains an issue only to the
extent of the costs of the day in the urgent Court on 15
th
December 2020.
[25]
It is the view of the Court that the
replacement of the unsigned
Confirmatory
Affidavit
that was before the Court on 22
nd
April 2021 with the signed version thereof on 29
th
April 2021, overcame the only point of real substance in the defence
raised by the First Respondent and the Second Respondent that
the
applicants as trustees had not authorised the institution of the
proceedings.
[25.1]
On 29
th
April 2021 I received a copy of the signed
Confirmatory
Affidavit
that reflected that the Third Applicant had signed the
Confirmatory
Affidavit
on 13
th
December 2020, which was two days before the matter came before the
Honourable Dippenaar, AJ in the urgent Court.
[25.2]
The signed
Confirmatory
Affidavit
was delivered to me by hand under cover of a letter from the
applicants’ attorney confirming that the attorney for the First

Respondent and the Second Respondent had been copied in on the
letter, together with the signed
Confirmatory
Affidavit
.
[25.3]
In the view of the Court, the receipt of
the signed
Confirmatory
Affidavit
by the Third Applicant resolved the defence of alleged lack of
authority of the Knuttel Family Trust to have instituted these
proceedings.
[25.4]
Although not expressly stated in the
Confirmatory
Affidavit
,
the Third Applicant by way thereof clearly associated himself with
the application and ratified the institution of the proceedings.
[25.5]
The First Respondent’s effective
consent to the relief sought in paragraph 2 of the Notice Of Motion
is at any event completely
at odds with any objection by the First
Respondent and the Second Respondent, via the same Attorney, to the
validity of the authorization
of the proceedings.
[26]
As already stated, by the time of
the hearing of the matter, the defence that the applicants had not
lawfully cancelled the  Agreement
Of Sale on 30
th
October 2020 had been abandoned by the First Respondent in paragraph
5.3 of the
First
And
Second
Respondent’s
Heads
Of
Argument
dated 24
th
February 2021.
[27]
Before the commencement of argument
at the hearing of the matter on 22nd April 2021 Mr. Hollander, who
appeared with Mr. Hoffman
on behalf of the First Respondent and the
Second Respondent, confirmed to the Court that the defence to the
application had been
reduced to the following three issues:
[27.1]
the authority of the applicants to have
instituted the proceedings;
[27.2]
whether the
Founding
Affidavit
complies with the Regulations Governing the Administering of an Oath
or Affirmation; and
[27.3]
whether the Second Respondent has an
enrichment lien over the Property in lieu of the cost to him of
improvements effected by him
to the Property, which have also
considerably enhanced the value of thereof.
[28]
As already pointed out, the Court
regards the delivery of the signed
Confirmatory
Affidavit
by the Third Applicant after the hearing as being dispositive of the
defence referred to in paragraph [23.2] above that the applicants
in
their capacities as trustees of the Knuttel Family Trust had not
authorised the institution of these proceedings.(This is apart
from
the anomalous persistence by the First Respondent and the Second
Respondent with formal objections through the same Attorney

simultaneous with a concession by the First Respondent to the primary
relief sought in the Notice Of Motion.)
[29]
There are accordingly only two
defences left for the Court to consider, namely the question whether
the extraordinary steps taken
for the commissioning of the oath of
the deponent to the
Founding
Affidavit
,
who was infected with the COVID19 virus at the time, constituted
substantial compliance with the requirements for the commissioning
of
oaths, and whether the Second Respondent has an enrichment lien over
the Property which lawfully defied the applicants’
right to
vacant occupation of the Property on 5
th
November 2020, when this was demanded by the applicants from the
First Respondent.
WAS
THERE SUBSTANTIAL COMPLIANCE WITH THE REQUIREMENTS FOR THE
COMMISSIONING OF THE FOUNDING AFFIDAVIT?
[30]
This is essentially a point
in
limine
by
the First Respondent and the Second Respondent, the nub of which is
that the husk of the application in the form of the
Founding
Affidavit
ought to be disregarded by the Court, due to an irregularity that
occurred in the deposition thereto.
[31]
The ultimate objective of the point
was never clarified to the Court.
[31.1]
The statement in paragraph 33 of the
First
And
Second
Respondent’s
Heads
Of
Argument
that “It is settled law that an applicant must stand or fall by
its founding affidavit.” alludes to the requirement
that an
applicant’s case must be made out in the founding affidavit.
[31.2]
It does not necessarily follow that a case
will fail because of an impinged founding affidavit.
[31.3]
There may be cases where all the evidence
in a founding affidavit is common cause, and the Court looks only to
the answering affidavit
to resolve the issues in the case.
[31.4]
The fact of the impingement of a founding
affidavit will then only be relevant to the requirement in Uniform
Rule Of Court 6(1)
that every notice of motion must be supported by a
founding affidavit, and the procedural consequences that would follow
the impingement
of the founding affidavit.
[32]
In this regard, it is important to
note that by the time of commencement of argument in the matter on
22
nd
April 2021 (and from as far back as 24
th
February 2021), the applicants’ cause of action, namely
cancellation of the Agreement Of Sale giving rise to a right to
demand re-delivery of the Property via the eviction orders claimed in
the
Notice
Of
Motion
,
was no longer in dispute.
[33]
Indeed, the applicants were left
with nothing more to prove on the merits, and the burden of proof and
the evidentiary burden had
both shifted to the First Respondent and
the Second Respondent to prove that, notwithstanding the lawfulness
of the applicants’
demand to the First Respondent to be
provided with vacant possession of the Property, the First Respondent
is entitled to retain
possession of the Property through the Second
Respondent by virtue of an enrichment lien in favour of the Second
Respondent for
the amount spent by him  on improvements to the
Property, which have also considerably enhanced the value thereof and
for
which the applicants need to compensate him in order to obtain
possession of the Property.
[34]
Before entering the merits of this
point
in
limine
,
the Court needs to consider the practical effect thereof in the
determination of the application, which may have a bearing on
costs.
[35]
The point was taken in the
Answering
Affidavit
on 8
th
December 2020. At that juncture all five defences referred to in
paragraphs [23.1] to [23.5] above were being pursued.
[36]
The abandonment by the First
Respondent on 24
th
February 2021 of the defence referred to in paragraph [23.4] above
that the Agreement Of Sale had not been lawfully cancelled,
left the
applicants with an onus of proof only in relation to their authority
to have instituted these proceedings. It is clear
now that this onus
was discharged as long ago as 13
th
December 2020, and certainly on 24
th
February 2021 when the First Respondent effectively conceded the
relief sought in paragraph 2 of the Notice Of Motion.
[37]
That left urgency (paragraph [23.1]
above) and the assertion by the First Respondent and the Second
Respondent of the enrichment
lien in favour of the Second Respondent
(paragraph [23.5] above) as the sole defences for the applicants to
contend with, apart
of course for the point
in
limine
concerning
the oath to the
Founding
Affidavit
.
[38]
As has already been pointed out, the
defence to the urgency of the application is only of relevance to the
allocation of the reserved
costs of the hearing of 15
th
December 2020 as per paragraph 6 of the order of the Honourable
Dippenaar, AJ set out in paragraph [22] above.
[39]
This leaves the defence of the
assertion of the enrichment lien in favour of the Second Respondent
as the only defence on the merits
of the application.
[40]
This defence is in the nature of a
confession and avoidance by the First Respondent and the Second
Respondent. If this were a trial,
the First Respondent and the Second
Respondent would have the duty to begin leading evidence.
[41]
The effect hereof is that the
contents of the
Founding
Affidavit
are entirely dispensable for the purpose of deciding the merits of
the application.
[42]
The only conceivable remnant of
relevance of the point
in
limine
is
its targeting of the
Founding
Affidavit
for elimination as the peremptory support for the
Notice
Of
Motion
as contemplated by Uniform Rule Of Court 6(1), the only conceivable
objective whereof could be the rendering of the
Notice
Of
Motion
as fatally defective for want of a
founding affidavit to support it.
[43]
I say “could be” instead
of “is” the rendering of the
Notice
Of
Motion
as fatally defective, because nowhere
do the First Respondent and the Second Respondent express this as
their objective in the taking
of the point
in
limine.
In
any event, as will be shown hereunder, such objective would be
fundamentally flawed, because it overlooks the passage that this

matter has taken through the Court.
[44]
As already stated, before the
delivery of the
Notice
Of
Motion
and
Founding
Affidavit
,
the application had commenced
ex
parte
under the same case number for authorisation of a notice to be served
on the First Respondent and the Second Respondent in terms
of section
4(2) of
the
Act
.
[45]
The
ex
parte
application, which was the forerunner to the
Notice
Of
Motion
in which
inter
alia
the
eviction of the First Respondent and the Second Respondent from the
Property is claimed, is supported by a document described
as
Founding
Affidavit
In
The
Ex
Parte
Application
In
Terms
Of
Section
4(2)
Of
The
Prevention
Of
Illegal
Eviction
From
And
Unlawful
Occupation
Of
Land
Act,
19
Of
1998
deposed to by Trevor Simon, the attorney within the applicants’
attorney of record appointed to deal with the matter.
[46]
The result is that if the
Founding
Affidavit
attached to the
Notice
Of
Motion
were to be struck down pursuant to the point
in
limine
,
regard can be had to this earlier affidavit by Mr. Simon as the
required supporting affidavit for the
Notice
Of
Motion
as contemplated by Uniform Rule Of Court 6(1).  All the parties
to the application are cited in Mr. Simon’s affidavit,
together
with an overview of the relief sought by the applicants in the
Notice
Of
Motion
.
[47]
Therefore, regardless of the outcome
of the point
in
limine
,
the sole conceivable effect thereof, namely the rendering of the
Notice
Of
Motion
as
fatally defective for want of a supporting affidavit as contemplated
by Uniform Rule Of Court 6(1), cannot be achieved.
[48]
It follows that in the context of
these proceedings, the practical effect of the point
in
limine
is
conclusively considered to be moot. Indeed, from a purely procedural
point of view, the Court is of the view that this point
in
limine
should have been abandoned when the First Respondent conceded the
lawful cancellation of the Agreement Of Sale. The First Respondent

and the Second Respondent must have realized at that point that, but
for the authorization of the proceedings by the applicants,
there was
very little, if anything at all, of the contents of the
Founding
Affidavit
in dispute. They should have also realized that the effective
concession of the primary relief sought in paragraph 2 of the Notice

Of Motion rendered any objection to the authority to launch the
proceedings as anomalous and in fact an irregular step in the
proceedings.
[49]
Notwithstanding the futility of the
point regarding the commissioning of the
Founding
Affidavit
,
the issues raised thereby are in general highly relevant amidst the
raging COVID19 pandemic. The Court accordingly considers itself
duty
bound to make a reasoned finding on the formal status of the
Founding
Affidavit
,
despite the absence of any practical consequences thereof in the
context of these proceedings.
[50]
For a start, with the benefit of
hindsight, the Court respectfully points out that suitable latitude
in the administering of an
oath for an affidavit or affirmation by a
deponent infected with COVID19 ought to have been included in the
Judge President’s
Consolidated Directive (18 September
Consolidated Directive) In Re: Court Operations In The Pretoria And
Johannesburg High Courts
During The Extended Covid-19 National State
Of Disaster. Paragraph 4.4.3 of this directive, which confers a
discretion on a Judge
who believes that hearing a matter in open
Court poses risk of infection to resort to video conferencing for the
taking of evidence,
clearly foretells of a preparedness to break with
the requirement of person to person presence for the administering of
an oath.
[51]
Turning specifically to the
requirements for oaths, section 10(1)(b) of the Justices Of The Peace
And Commissioners Of Oaths Act
16 of 1963 provides for the Minister
of Justice to make regulations prescribing the form and manner in
which an oath or affirmation
shall be administered and a solemn or
attested declaration shall be taken, when not prescribed by any other
law.  The regulations
that were made by the Minister in this
regard are the Regulations Governing The Administration Of An Oath Or
Affirmation, which
were published under GN R1258 in GG3619 of 21
st
July 1972.
[52]
Regulation 3(1) of these regulations
states:
(
Emphasis
added
)
“
(1)
The deponent shall sign the declaration
in
the presence of
the commissioner
of oaths.”
[53]
Non-compliance
with the regulations does not
per
se
invalidate an affidavit.  The Full Court in
S
v Munn
[2]
confirmed at 734H that the regulations are directory only and that
non-compliance with the regulations would not invalidate an
affidavit
if there was substantial compliance with the formalities in such a
way as to give effect to the purpose of obtaining
a deponent’s
signature to an affidavit.
[54]
The Full Court in
S
v Munn
(
supra
)
at 737F-H held that the purpose of obtaining the deponent’s
signature to an affidavit is primarily to obtain irrefutable
evidence
that the relevant deposition was indeed sworn to.
[55]
In a separate
Affidavit
the applicants’ attorney, Mr. Trevor Simon, gave a detailed
explanation of the steps taken by him in cooperation with a named

commissioner of oaths to ensure substantial compliance with the
requirement in regulation 3(1) that the deponent sign the
Founding
Affidavit
in the presence of the Commissioner Of Oaths, which, as already
stated, was physically impossible due to the infection of the
deponent, the First Applicant, at the time with the COVID19 virus.
[56]
The argument on behalf of the First
Respondent and the Second Respondent did not touch on the steps taken
by Mr. Simon, the Commissioner
Of Oaths and the First Applicant to
ensure substantial compliance with the required formality that the
Founding
Affidavit
be signed in the presence of the Commissioner Of Oaths.
[57]
Although not challenged in argument,
suffice to say that Mr. Simon confirmed in the
Affidavit
that he E-mailed the unsigned draft
Founding
Affidavit
to the deponent, the First Applicant, with instructions to read,
initial and sign it before E-mailing it back to him. He then engaged

the services of a commissioner of oaths who, in Mr. Simon’s
presence in the office of the commissioner, spoke to the First

Applicant in a video WhatsApp call. Having identified the First
Applicant as the person she professed to be, the commissioner then

posed the usual questions, before she administered the oath in the
conventional way, except that the deponent’s initialling
and
signature had been appended before the link-up.
[58]
The main contentions of the First
Respondent and the Second Respondent appear to be that there was no
confirmatory affidavit by
the Commissioner Of Oaths and that there
was no case made out in the founding papers for the Court to develop
the law towards the
relaxation of the requirement of physical person
to person presence for the administration of an oath by a
commissioner to a deponent.
[59]
There is nothing in Mr. Simon’s
Affidavit
that strikes as being hearsay requiring of independent confirmation
by the Commissioner Of Oaths.
[60]
A finding by this Court that there
was substantial compliance with the requirement for person to person
presence in the administration
of the oath for the
Founding
Affidavit
would not constitute development of the law. The case of
S
v
Munn
(
supra
)
found as far back as 1973 that the requirement of person to person
presence between a commissioner and a deponent is not peremptory,
and
can be relaxed upon proof on the facts of substantial compliance with
the requirement.
[61]
The evidence of Mr. Simon in the
Affidavit
constitutes the required standard of irrefutable proof that the
Founding
Affidavit
was sworn to by the First Applicant in the prescribed manner, albeit
not in the physical presence of the Commissioner Of Oaths.
[62]
It
needs to be pointed out that judicial recognition has been given to
the relaxation of the requirement of person to person presence
for
the administering of an oath in
Uramin
(Incorporated
in
British
Columbia)
t/a
Areva
Resources
Southern
Africa
v
Perle
[3]
where the Honourable Satchwell, J allowed the use of video link to
lead evidence in a civil matter from witnesses who were abroad.
The
learned Judge administered the oath to them virtually before their
evidence was led.
[63]
The
point arose pertinently for decision in Canada in the matter of
Rabbat
et
al
v
Nadon
et
al
[4]
wherein the Superior Court of Justice – Ontario in paragraph
[4] of the Judgment permitted the virtual commissioning of affidavits

“given the restrictions in place due to COVID-19”. The
order given by the Court reads as follows:
“
Any
affidavit for use on the motion may be sworn electronically or by
e-mail using any reasonable method by which the person commissioning

the affidavit can be satisfied of the identity of the deponent, that
the deponent has read and understood the contents of the affidavit

and is solemnly swearing or affirming as the case may be.  The
deponent and the person commissioning the affidavit need not
be
physically in each other’s presence.”
[64]
The Court is accordingly of the view
that there was substantial compliance with regulation 3(1) of the
Regulations Governing The
Administration Of An Oath Or Affirmation as
published in GN R1258 in GG3619 of 21
st
July 1972 in the commissioning of the
Founding
Affidavit
.
HAVE
THE FIRST RESPONDENT AND THE SECOND RESPONDENT DISCHARGED THE BURDEN
OF PROVING THAT
THE
SECOND
RESPONDENT
HAS
AN
ENRICHMENT
LIEN
OVER
THE
PROPERTY?
[65]
The relevant events begin on 30
th
October 2020 when the applicants through their attorney Fluxmans in
writing cancelled the Agreement Of Sale of the Property that
had been
concluded with the First Respondent exactly nine months earlier on
30
th
January 2020.
[66]
Included in the Notice Of
Cancellation dated 30
th
October 2020 was a notice to the First Respondent to provide vacant
occupation of the Property to the applicants by no later than

Thursday 5
th
November 2020.
[67]
Instead of providing vacant
occupation of the Property in answer to the applicants’ demand,
the First Respondent instructed
her attorney SWVG INC. to write to
the applicants’ attorney as follows on 6
th
November 2020:
“
Dear
Sirs
RE:
ZOBEIDA BHANA // THE KNUTTEL FAMILY TRUST (REG NO. IT3753/1996)
1.
We have been instructed by Zobeida Bhana (“our client”)
who has presented
us with correspondence addressed by you to our
client as well as correspondence from her erstwhile attorneys.
2.
We have not managed to comprehensively consult with our client but
will be doing
so early next week, whereafter a detailed response to
your correspondence will be forthcoming.
3.
At this juncture our client and his family will not be vacating the
premises
and insofar as the content of your various correspondence is
concerned, our failure to deal with same at this juncture is not to

be construed as an admission as to the correctness thereof.
4.
You can however assure your client that a comprehensive communication
will be
sent to yourselves early next week.”
[68]
The First Respondent then instructed
her attorney to elaborate
inter alia
as follows on 10
th
November 2020:
“
1.
…
2.
…
3.
Your client would no doubt have instructed you that during our
client’s
occupation of the property, with your client’s
knowledge, consent and agreement our client made vast improvements to
the
property, which improvements totalled approximately
R1 265 000,00.  This included inter alia,
waterproofing, repairing
the pool, fixing damaged windows and
shutters and renovating the kitchen.
4.
Given the vast improvements to the property, our client holds a lien
over same
in the amount that the work attended to by our client has
improved the property and increased its value.  We have engaged
with a property valuator to determine the value of the property which
we should have in hand shortly.
5.
Notwithstanding the above, our client would prefer to take a
pragmatic approach,
rather than litigating which will take months if
not years to finalise and as your client would be well advised.
6.
Accordingly, our client on a without prejudice basis proposes as
follows:-
6.1
Our client will make payment of any and all arrears in regard to
occupational rent as well
as the occupational rental due for December
2019 and January 2021, within three days of signature of an
agreement;
6.2
Without admission that your client has properly terminated the sale
of property agreement,
same is to be reinstated and our client
afforded until 31 January 2021 to procure the guarantees for the
balance of the purchase
price.
7.
The above is to be recorded, should your client agree to same, in a
short addendum
and sent to us for consideration.
8.
We are also mandated to meet with you and your client should the need
arise and
in order to expedite the conclusion of the addendum.
9.
We await to hear from you and in the interim all our client’s
rights are
reserved.”
[69]
As at 10
th
November 2020, five days after the notice to provide vacant
occupation of the Property to the applicants, the First Respondent

was therefore disputing the validity of the applicants’
cancellation of the Agreement Of Sale of the Property, and was in

addition asserting an enrichment lien for improvements to the
Property at a cost to her of R1 265 000,00, which she
further contended had increased the value of the Property.
[70]
The First Respondent relied on these
contentions on 10
th
November 2020 for her refusal to provide vacant occupation of the
Property to the applicants.
[71]
There is no reference at all to the
Second Respondent in this correspondence, and nowhere does the First
Respondent’s attorney
profess to be acting for the Second
Respondent as well as for the First Respondent.
[72]
The only oblique reference to
someone other than the First Respondent appears in paragraph 3 of the
First Respondent’s attorney’s
first letter, which I
extract for emphasis as follows:
“
At
this juncture our client and
his
family will not be vacating the premises …”
[73]
The “
our
client”
extracted therein clearly
refers to the already identified Zobeida Bhana in paragraph 1 of the
same letter, leaving “
his
”
the only misleading word in paragraph 3.  The reference thereto
is however neutralised by the use of the word “
her”
in paragraph 1 of the same letter.
[74]
There was no explanation by the
attorney or anyone else on behalf of the Second Respondent in any of
the papers before the Court
to disturb the inference that the
attorney was only acting for the First Respondent in these exchanges
of correspondence.
[75]
In this regard, the Court has relied
on a strictly literal interpretation of letters written by an
attorney. There is no reason
for the Court to infer otherwise than
that the attorney was acting at all material times in the
correspondence for the client he
professed to be instructed by,
namely the First Respondent.
[76]
In a
Confirmatory
Affidavit
deposed to by the First Respondent on 8
th
December 2020, which was little more than a month after she was
required to provide vacant occupation of the Property to the
applicants,
she confirmed the following allegation in the
Answering
Affidavit
deposed to by her son the Second Respondent also on 8
th
December 2020:
“
17.2
My mother
[the First Respondent]
did
not receive this letter
[the Notice Of
Cancellation dated 30
th
October 2020 which included the notice to provide vacant occupation
of the property to the Applicants]
and
[the Agreement Of Sale]
was not properly
cancelled by the Applicants, whether as contemplated by
[the
Agreement Of Sale]
or at all.”
[77]
The first time the First Respondent
relented and conceded the validity of the cancellation of the
Agreement Of Sale by the applicants
was in the
First
And
Second
Respondent’s
Heads
Of
Argument
signed by junior counsel for the First Respondent and the Second
Respondent, Mr Hoffman, on 24
th
February 2021.  The following appears in paragraph 5.3 thereof:
“
5.3
That the agreement of sale was not properly cancelled.  The
Respondents do not persist with this
ground of opposition.”
[78]
The legal effect of this concession,
made more than three months after the notice of cancellation on 30
th
October 2020 and the concomitant demand by the applicants to be
provided with vacant occupation of the Property by 5
th
November 2020,  is that as at 6 November 2020 when the First
Respondent’s attorney first wrote to the applicants’

attorney, the only possible answer that the First Respondent could
have had to the applicants’ demand to be provided with
vacant
occupation of the Property by 5
th
November 2020 was the enrichment lien that she set up in her
attorney’s letter dated 10
th
November 2020.
[79]
But then the First Respondent in her
Confirmatory
Affidavit
dated 8
th
December 2020 forfeits this defence too, by aligning herself with the
following contention of the Second Respondent in paragraph
4.5 of the
Answering
Affidavit
:
“
4.5
… I
[the Second Respondent]
hold
a lien over the Property, in that I have expended an amount of
approximately R1 216 575,00 effecting improve-ments
and
repairs in and to the Property to the knowledge of the Applicants.”
[80]
Although there follow ambivalent
vacillations in the
Answering
Affidavit
and in the
First
And
Second
Respondent’s
Heads
Of
Argument
between the lien belonging to both the First Respondent and the
Second Respondent (
Answering
Affidavit
paragraphs 25, 72.4 and 74.1) (heads paragraphs 5.4 and 31.2), the
First Respondent and the Second Respondent finally settle on
the lien
being that of the Second Respondent (
Answering
Affidavit
paragraphs 48.17 and 77.2.21) (heads, paragraphs 70.4 and 82.3).
This approach was maintained by Mr Hollander, lead counsel
for the
First Respondent and the Second Respondent, throughout the course of
his argument at the hearing.
[81]
The result hereof is that when the
First Respondent’s attorney addressed letters to the
applicants’ attorney on 6
th
and 10
th
November 2020 contesting the validity of the applicants’ demand
to the First Respondent to be provided with vacant occupation
of the
Property by 5
th
November 2020, there was no merit in the attorney’s contention
on behalf of the First Respondent that she was entitled to
resist the
demand by virtue of the cancellation of the Agreement Of Sale of the
Property by the applicants being defective and
also due to an
enrichment lien asserted by the First Respondent in lieu of the cost
to her of improvements effected by her to the
Property, that had also
increased its value.
[82]
On the common cause evidence of the
attorney’s letters of 6
th
and 10
th
November 2020, on the First Respondent’s and the Second
Respondent’s
ipse
dixit
in
their testimonies in the
Answering
Affidavit
,
and on the First Respondent’s acceptance in the First
Respondent’s and the Second Respondent’s counsels’

heads that the cancellation of the Agreement Of Sale on 30
th
October 2020 was lawful, these reasons simply never existed at the
time, and neither could they have ever existed.
[83]
The best-case scenario for the
Second Respondent is his assumption of the enrichment lien from the
First Respondent about seven
weeks later in the
Answering
Affidavit
,
which by the furthest stretch of the imagination cannot possibly
constitute an answer to a lawful claim by the applicants to the
First
Respondent for vacant occupation of the Property made seven weeks
earlier.
[84]
Indeed, by virtue of this finding by
the Court that the First Respondent had no legal basis for defying
the applicants’ notice
to provide vacant occupation of the
Property on 5
th
November 2020, the Second Respondent’s right to occupy the
Property through the First Respondent similarly expired at the
same
time.
[85]
It is therefore clear that as from
30
th
October 2020, the Second Respondent could not claim that he and his
family
“
occupy
the Property pursuant to an extant agreement between the Trust and my
mother
[the First Respondent]
.”
Per
the Second Respondent in paragraph 46.3 of the
Answering
Affidavit
deposed to over a month later on 8
th
December 2020
.
What’s
more, this evidence by the Second Respondent, confirmed by the First
Respondent, is also in direct conflict with the
First Respondent’s
subsequent concession of the lawfulness of the cancellation of the
Agreement Of Sale with effect from
30
th
October 2020.
[86]
It is equally clear that on 10
th
November 2020, which was 5 (five) days post the expiry of the legally
valid deadline for the First Respondent to provide vacant
occupation
of the Property to the applicants, the only lien set up over the
Property was that of the First Respondent in her attorney’s

letter dated 10
th
November 2020, which, to the extent that it may have been valid, was
extinguished by express abandonment of the lien by the First

Respondent in the
Answering
Affidavit
on
8
th
December 2020.
[87]
That being so, and accepting that
for the purpose of this application the Court must determine the
competing rights and obligations
of the parties as at 5
th
November 2020 when the applicants lawfully demanded vacant possession
of the Property from the First Respondent, the Court finds
that the
First Respondent did not have the right to resist the applicants’
demand to be provided with vacant occupation of
the Property by 5
th
November 2020. In addition, the Court finds that on the evidence of
the letters written by the attorney then professing to act
only for
the First Respondent, the Second Respondent played no role in the
resistance of the applicants’ demand for vacant
possession of
the Property at that stage.
[88]
As at 5
th
November 2020, without notice of any
ius retentionis
specifically by the Second Respondent setting up an enrichment lien
for the cost of the improvements to the Property which had

purportedly also enhanced the value thereof, the Second Respondent
and his Family were legally obliged to vacate the Property under
the
demand to the First Respondent for vacant occupation of the Property
by 5
th
November 2020.
[89]
Assuming
the validity of the enrichment lien set up for the first time by the
Second Respondent on 8
th
December 2020 in the
Answering
Affidavit
,
which this Court is not required to decide but upon which the Court
will express certain views, possession of the Property by
the Second
Respondent as at 30
th
October 2020 or 5
th
November 2020 was not enough to ground his alleged enrichment lien –
possession required by a lienholder is known as
possessio
naturalis
which
comprises both a physical and a mental element, the latter being an
intention to hold the property as against the owner’s
claim to
preserve as security for a claim against the owner.  In
De
Jager v Harris N.O. and The Master
[5]
Hofmeyr, J at 178H-179A cites Innes, CJ in
Scholtz
v Faifer
,
[6]
as follows in support of this requirement of possession for a
lienholder:
“
A
highly authoritative expression of the law on this point is to be
found in the Full Bench decision of Scholtz v Faifer …
at pp.
246, where Innes, C.J., with the concurrence of the two other Judges
is reported to have said the following:
“
The
possession which must be proved (by a lienholder) is not possession
in the ordinary sense of the term – that is possession
by a man
who holds pro domino, and to assert his rights as owner.  The
whole question is discussed by Voet (41.2.3), and he
calls that kind
of possession “natural possession”, as distinguished from
juridical possession …
But
to this natural possession, as to all possession, two elements are
essential, one physical, and the other mental.  First
there must
be the physical control or occupation – the detentio of the
thing; and there must be the animus possidendi –
the intention
of holding and exercising that possession”.”
[90]
At some point in the hiatus of one
month between the First Respondent’s notice of setting up a
lien on 10
th
November 2020 and 8
th
December 2020 when the
Answering
Affidavit
was delivered, the First Respondent and the Second Respondent
evidently switched hats as lienholder.
[91]
Without any evidence of when the
switch actually took place, the earliest date in evidence, which is
8
th
December 2020, will be accepted. By this time the applicants had
already been entitled to vacant occupation of the Property as
against
both the First Respondent and the Second Respondent for over a month
from 5
th
November 2020.
[92]
There is no evidence by or on behalf
of the Second Respondent of an intention by him to hold the Property
and exercise that possession
for the assertion of the enrichment lien
between 5
th
November 2020 and 8
th
December 2020 (when he expressed that intention for the first time).
[93]
For this reason alone, the
applicants’ right to the vacant occupation of the Property,
which they were entitled to from as
far back as 5
th
November 2020, remained undisturbed by the Second Respondent’s
assumption of the role of lienholder for the first time on
8
th
December 2020 in the
Answering
Affidavit
.
[94]
This conclusion effectively disposes
of the defence referred to in paragraph [23.5] above whether the
Second Respondent has a valid
enrichment lien over the Property as
against the applicants.
[95]
The applicants’ counsel Mr
Mÿburgh in his argument against the validity of the lien set up
by the First Respondent and
the Second Respondent in favour of the
Second Respondent, focussed on the following extract from clause 3 of
the Agreement Of Sale:
“…
in
the event that the
[First Respondent]
wishes to make any alterations or
renovations to any of the improvements on the property or construct
and install any additional
improvements on the property, the
[First
Respondent]
shall first obtain the
[applicants’]
written
consent thereto …”
[96]
It is not disputed that the Second
Respondent was aware of this clause in the Agreement Of Sale.
[97]
Mr
Mÿburgh contends that because the First Respondent occupied and
exercised her possessory right to the Property through the
Second
Respondent and his Family, the First Respondent had no independent
rights of occupation or possession of the
Property. The possessory
right he is asserting to the Property in the purported exercise of
the enrichment lien claimed by him
is in fact the First Respondent’s
right, which is inter alia governed by clause 3 of the Agreement Of
Sale, which limited
the right to effect improvements to the Property
to authorization in writing by the applicants.
Ergo
,
the improvements were effected in defiance of the requirement of the
written consent in clause 3 of the Agreement Of Sale, from
which it
follows that no lien can be asserted in respect thereof. For this
submission, Mr Mÿburgh relied on the following
extract from the
judgment of the Honourable Mahomed, J in
Palabora
Mining Co Ltd v Coetzer
:
[7]
“
There
is a third difficulty with the respondent’s defence to the
claim for ejectment, based on a right of retention.
It arises
from clause 7 of the lease which provides:
“
The
lessee shall not make any alterations or additions to the premises …
without the prior written permission of the lessor
… Any
alterations or additions hereinbefore mentioned will become the
property of the lessor, without payment or compensation
to the
lessee.”
It
is not contended by the respondent that he received any such “written
permission” from the applicant to effect the
“alterations
or additions to the premises”.  No right of retention can,
in these circumstances, be successfully
invoked.”
[98]
The
Court agrees with this submission, and is fortified in doing so by
the Second Respondent’s awareness at all material times
of the
requirement for the First Respondent to obtain the written consent of
the applicants for the effecting of any improvements
to the Property
prior to registration of transfer, although his awareness is not
crucial to the submission. However, the Second
Respondent’s
awareness of the requirement of the applicants’ written consent
for the improvements to the Property is
certainly compelling, and
supplies an additional basis for holding the Second Respondent to the
requirement of the written consent
for improvements. This is manifest
from the following extract from the judgment of Ward, J in
African
Films Trust, Ltd. v. Reid and Dunye
:
[8]
“
In
this matter the real question at issue is whether Dunye knew of the
terms of the contract between Reid and the African Films
Trust, Ltd.
.  Now on the facts disclosed in the affidavits I am unable to
come to the conclusion that he did know.
It is true he has been
a cinematograph operator for a number of years, and that he went with
Reid to Hopson, the applicants’
manager in order to obtain
films, and that he was then and there informed that he would have to
get all his films from the applicants’
company.  At the
same time the particulars of Reid’s contract with the Films
Trust may not have been known to him although
the fact of Reid’s
deliberate breach of his agreement makes the circumstances
suspicious.  There may be a collusive
arrangement between Reid
and Dunye, but on the affidavits I am not prepared to say that fraud
has been proved.  The interdict
will be discharged and the
applicant company left to its remedy by way of action. …”
[99]
It follows herefrom that a third
party with knowledge of the terms of a contract between two other
parties, may be held bound by
those terms.
[100]
A fortiori
this
principle would be applicable to a case like the present where the
terms whereto the third party Second Respondent is held
bound
actually govern his occupation of the Property.  In this sense
the position of the Second Respondent and his Family
is not unlike
the position of the nominal tenant in
De
Jager v Harris N.O. and The Master
(
supra
)
where the lessor in the nominal lease arrangement with the occupier
was held to retain all the possessory rights to the property
through
the third party to whom he had handed over the certain limited
occupational rights.  The relevant extract from the
judgment of
Hofmeyer, J is reported as follows at page 175C-E:
“
The
applicant in his further affidavit amplified his allegations
regarding his possession of the property.  He states that
he
took possession of the property upon the date of the deed of sale and
never relinquished such possession.  Since he could
not occupy
the property personally he let the property as stated above and for
the purposes of retaining his right of retention
over it.  The
property is still occupied by the said tenant at the nominal rental
mentioned and is still cared for by the
tenant.”
[101]
These facts resonate with the
arrangement described by the Second Respondent (and confirmed by the
First Respondent) as follows
in the
Answering
Affidavit
:
“
46.3
We are not in “unlawful occupation” of the Property.
We occupy the Property pursuant to an extant
agreement between the
Trust and
[the First Respondent].
46.4
The Trust gave the First Respondent and me the express and explicit
permission to occupy the Property.”
[102]
The First Respondent being in the
position of the primary occupier and possessor of the Property in
terms of the Agreement Of Sale
while it was extant with the
overarching right to a
ius retentionis
in respect thereof (coupled of course with her initial assertion of
the right) arising out of any alterations and additions that
would
have been lawfully carried out, the Second Respondent and his
Family’s limited occupation rights through the First
Respondent
cannot possibly extend beyond those of the First Respondent.
That would include the limitation imposed on the
right of occupation
by clause 3 of the Agreement Of Sale that improvements could only be
effected with the written consent of the
applicants.  Following
the
ratio
of the judgment of the Honourable Mahomed, J in
Palabora
Mining Co Ltd v Coetzer
(
supra
),
any right of retention that the Second Respondent may have had in
respect of improvements effected by him to the Property would
have
been defeated by the provisions of clause 3 of the Agreement Of Sale.
[103]
It goes without saying that the
finding that the First Respondent possessed the Property through the
Second Respondent subject entirely
to the terms of the First
Respondent’s possessory rights as contained in the Agreement Of
Sale leaves no scope for the Second
Respondent’s contention
that he received oral consent for the improvements to the Property
effected by him, which would of
course be dependant for
enforceability on independent occupation and possessory rights
outside of the Agreement Of Sale, which
simply do not exist.
[104]
As
an alternative argument to the oral consent, and on the assumption
that the Second Respondent was at the relevant time bound
by the
requirement of consent in writing for the improvements effected to
the Property, the First Respondent’s and the Second

Respondent’s counsel submit in their heads of argument that the
principle enunciated by the Honourable Mohamed, J in
Palabora
Mining
Co
Ltd
v
Coetzer
(
supra
)
that an occupier of property who effects alterations or additions
thereto in contravention of a term of the contract for his occupation

forfeits his right to retention, is not part of our law.  For
this submission they rely on paragraphs [32] to [36] of the
judgment
in
Business
Aviation Corporation (Pty) Ltd And Another v Rand Airport Holdings
(Pty) Ltd
[9]
where the Honourable Mahomed, J in
Palabora
Mining Co Ltd v Coetzer
(
supra
)
is criticised for having found that the provisions of Placaeten of
1658 and 1659 that lessees of rural property have no right
of
retention to the leased property apply with equal force to lessees of
urban property.  This adverse finding in no way impinged
on the
ratio
by the Honourable Mohamed, J, found elsewhere in the judgment of
Palabora
Mining Co Ltd v Coetzer
(
supra
),
that a party who effects alterations or additions to a property in
contravention of an express term in a contract prohibiting
such
conduct forfeits his right to retention of the property.
[105]
Counsel
for the First Respondent and the Second Respondent placed great store
on the judgment in
Standard
Kredietkorporasie Bpk v Jot Motors (Edms) Bpk h/a Vaal Motors
,
[10]
for their submission that even a
mala
fide
possessor is in certain instances entitled to exercise an enrichment
lien. The facts of that case are, however, clearly distinguishable

from those
in
casu
.
The party referred to as a
mala
fide
possessor was a motor car repairer who successfully exercised a
repairer’s lien over the vehicle against the hire purchase

owner of the vehicle with full knowledge that the hire purchase
purchaser who had brought the car in for repairs had in the hire

purchase agreement undertaken not to raise any lien against the hire
purchase owner of the vehicle. The repairer’s possession
of the
vehicle was independent of the possessory right conferred by the hire
purchase agreement on the hire purchase purchaser
and,
notwithstanding the repairer’s knowledge of the restriction
imposed in the hire purchase agreement on the exercise of
a lien by
the hire purchase purchaser, the repairer was held entitled to raise
his repairer’s lien against the hire purchase
seller. The
repairer was not in  breach of the contract in terms whereof he
had acquired possession of the vehicle from the
hire purchase
purchaser, unlike the Second Respondent who was in breach of the
terms of the Agreement Of Sale governing his occupation
of the
Property via the possessory right conferred in the Agreement Of Sale
on the First Respondent, and also unlike the lessee
in
Palabora
Mining Co Ltd v Coetzer
(
supra
)
who had similarly breached the lease which conferred the right of
possession  of the property therein on him.
[106]
Despite these findings against the
Second Respondent, it still needs to be considered whether he has
tendered satisfactory evidence
of an underlying enrichment action
against the trust.  For this he would need to show that he in
fact effected useful or necessary
improvements to the Property and
furthermore that he was impoverished by the undertaking and that the
applicants were correspondingly
unjustly enriched thereby.
[107]
It is re-emphasised that a right of
retention can never exist in isolation, but always serves as
reinforcement of an underlying
claim.  A perfunctory test of the
Second Respondent’s alleged claim against the trust reveals
inherent vulnerabilities
therein.
[108]
Firstly, in a claim against the
trust for compensation for the improvements, the Second Respondent
would need to prove that he effected
the improvements.  In
paragraph 19 of the
Answering
Affidavit
,
he states the following:
“
19.
I’ve spent approximately R1 216 575,00 effecting
improvements and repairs to the Property,
to the knowledge of the
Applicants.  I annex hereto an invoice from Golden Acre
Renovations setting out the work done and
the cost marked Annexure
“
AA4”
.
[109]
Annexure “
AA4”
is an Invoice made out by Golden Acre Renovations to Z. Bhana, the
First Respondent, and not to the Second Respondent.
[110]
The payment date reflected on the
Invoice is 17
th
June 2020.  There is no evidence of payment of the amount due of
R1 216 575,00, let alone of by whom the payment
was made.
Proof of impoverishment of the lienholder is an element of a claim
for unjust enrichment, which is missing from the
Answering
Affidavit
.
[111]
In paragraph 22 of the
Answering
Affidavit
it is alleged that as a result of the improvements and repairs
effected by the Second Respondent to the Property, the value of
the
Property has increased from R4 900 000,00 (i.e. the
purchase price agreed to by the First Respondent for the Property)
to
R6 450 000,00, for which the Second Respondent relies on an
unsworn statement described as XState Property Valuations
annexed as
“
AA6”
to
the
Answering
Affidavit
.
[112]
Quite apart from the absence of any
testimony under oath of the required level of expertise to satisfy
the Court of the increase
in the  value of the Property as a
result of the improvements claimed by the Second Respondent, the
Second Respondent eclipses
any possibility of proving an increase in
value of the Property by the following statement made by him in
paragraph 26.3 of the
Answering
Affidavit
:
“
26.3
Thirdly, even if my mother and I were evicted from the Property,
there is no guarantee the Property would be sold,
whether within a
reasonable period or at all.  The Property was on the market for
approximately six months prior to my mother
making an offer to
purchase it.”
[113]
An
increase in value of a property unaccompanied by evidence of
impoverishment of the party who has effected the improvements which

have led to the alleged increase in value of the property is not a
valid basis for the exercise of an enrichment lien. There is

therefore no need for the Court to have regard to the unsworn
evidence of the increase in value of the Property without proof of

impoverishment of the Second Respondent via expenditure by him on the
improvements, which, as already pointed out, is not to be
found in
the
Answering
Affidavit
(see
in this regard
Rhoode
v
De
Kock
[11]
).
[114]
Secondly,
and most importantly, there is no evidence before the Court of a
required standard of expertise to prove the level or
levels of
utility of the different species of improvements effected to the
Property, without which the Court is unable to assess
whether the
nature of the various improvements effected to the Property indeed
give rise to a valid claim for compensation for
enrichment sufficient
to ground the exercise of an enrichment lien (
vide
Rhoode
v
De
Kock
[12]
).
[115]
The Court will therefore have no
regard to the evidence of the Second Respondent tendered as proof of
his potential claim against
the applicants intended to underscore the
enrichment lien claimed by him over the Property. The result is that
the enrichment lien
set up by the Second Respondent is in isolation
and without any proof of an underlying claim for unjust enrichment to
underscore
the assertion of the lien.
COSTS
[116]
In paragraphs 172 to 174 of the
Applicants’ Heads Of Argument
,
the applicants’ counsel contends for a punitive costs order
against the First Respondent, the Second Respondent and the
Third
Respondent.  The difficulty for the applicants is that in the
Notice
Of
Motion
,
the applicants only seek costs against the First Respondent in
paragraph 6 thereof.
[117]
The only questions left to decide
therefore are the liability for the reserved costs of the day in the
urgent Court on 15
th
December 2020 and the scale of the costs to be awarded against the
First Respondent.
[118]
There is no reason to deprive the
applicants of their costs of the day in the urgent Court on 15
th
December 2020.  It is suggested by the First Respondent’s
and the Second Respondent’s counsel in their heads of
argument
that all costs incurred until the applicants had properly authorised
the initiation of the legal proceedings should be
borne by the
applicants.
[119]
There is no merit in the
suggestion.  The facts demonstrate conclusively that the First
Respondent should never have contested
the cancellation of the
Agreement Of Sale in the first place, which could have avoided the
application altogether.  This is
particularly so in view of the
fact that the First Respondent initially claimed the enrichment lien
herself and then abandoned
it about a month later, which of itself
rendered the whole defence based on the enrichment lien as
fruitless.
[120]
An analysis of the facts of the case
show clearly that the First Respondent raised two spurious defences
in her attorney’s
letters of the 6
th
and 10
th
of November 2020 in order to defeat the applicants’ right to
vacant possession of the Property as demanded by them on 5
th
November 2020.
[121]
This is an eminently suitable matter
for the imposition of the highest level of punitive costs on the
First Respondent.
Accordingly,
the following is ordered:
1)
It is declared that the Agreement Of Sale that was concluded between
the Knuttel Family Trust and
the First Respondent on 30
th
January 2020 was validly cancelled by the Trust on 30
th
October 2020.
2)
The First Respondent, the Second Respondent and the Third Respondent
constituted by all persons
who occupy Unit 31, Royal Houghton, 3
rd
Street, Houghton Estate, Johannesburg (“the Property”)
through the Second Respondent, are evicted from the Property.
3)
The First Respondent, the Second Respondent and the Third Respondent
occupiers of the Property
through the Second Respondent are ordered
to vacate the Property by 30
th
September 2020.
4)
If the First Respondent and the Second Respondent fail to pay any of
the amounts provided for in
paragraphs 2.3 and 3 of the Order of the
Honourable Dippenaar, AJ on 15
th
December 2020 on due
date, the eviction of the First Respondent, the Second Respondent and
the Third Respondent occupants of the
property through the Second
Respondent from the Property is to operate forthwith.
5)
Should the First Respondent, the Second Respondent and the Third
Respondent occupiers of the Property
through the Second Respondent
fail to vacate the Property on or before 30
th
September
2021, or if the First Respondent and the Second Respondent fail to
make the payments as per paragraphs 2.3 and 3 of the
Order of the
Honourable Dippenaar, AJ dated 15
th
December 2020 on due
date, the Sheriff of the Court or his lawfully appointed Deputy are
authorised and directed to evict the First
Respondent, the Second
Respondent and the Third Respondent occupiers of the Property through
the Second Respondent forthwith.
6)
The First Respondent is ordered to pay the costs of this application,
including the reserved costs
of the hearing on 15
th
December 2020, on the scale as between attorney and client.
S
M KATZEW
Acting
Judge of the High Court of South Africa
DATE
OF JUDGMENT
:
26
th
August 2021.
DATE
OF HEARING
:
22
nd
April 2021.
APPEARANCES
:
For
Applicant:

Mr. J. Mÿburgh
Instructed
by:

Fluxmans Inc.
(011) 328-1700
For
First Respondent,
Second
Respondent and
Third
Respondent:
Mr L. Hollander
with him Mr J. Hoffman
Instructed
by:

Swartz Weil Van der Merwe,
Greenberg Inc.
Tel:
(011) 486-2850
[1]
1997
(1) SA 646
(C) at 654D
[2]
1973
(3) SA 736 (NCD)
[3]
2017
(1) SA 236 (GJ)
[4]
2020
ONS 2933
[5]
1957
(1) SA 171 (SWA)
[6]
1910
T.P.D. 243
[7]
1993
(3) SA 306
(T) at 309F-H
[8]
1918
WLD 22
at 23-24
[9]
2006
(6) SA 605 (SCA)
[10]
1986
(1) SA 223 (A)
[11]
2013
(3) SA 123
(SCA) at 127F-128A
[12]
(
supra
)
at 127F-128A