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[2021] ZAGPJHC 419
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Fausto v Haotian and Others (18/44242) [2021] ZAGPJHC 419 (8 September 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
LOCAL DIVISION, JOHANNESBURG
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISED:
Date:
8 September 2021
CASE
NO
: 18/44242
In
the matter between:
FAUSTO
GIUSEPPE DI
TRAPANI
Applicant
And
HAOTIAN
WU
1
ST
Respondent
ILLEGAL
OCCUPANTS OF PORTION 2 OF ERF [....]
2
ND
Respondent
BEDFORDVIEW
EXTENSION [....] TOWNSHIP
REGISTRATION
DIVISION I.R ,
THE
PROVINCE OF GAUTENG (also known as
[....]
D[....] Place, Concord Road, Bedfordview)
CITY
OF EKURHULENI METROPOLITAN MUNICIPALITY
3
RD
Respondent
Coram:
Majavu AJ
Heard
:
11 June 2021
Delivered:
8 September 2021 – This judgment
was handed down electronically by circulation to the parties'
representatives by email, by
being uploaded to the
CaseLines
digital system of the GLD and by release to SAFLII. The date and time
for hand-down is deemed to be 14h00 on 8 September 2021
Summary:
Pursuant to a lease agreement (in respect of residential premises)
cancelled by lessor due to non-payment of rental by
lessee, lessor
seeks to evict defaulting lessee and the latter resists such by
asserting a
lien
in respect of expenditure for improvements.
Have the prescripts in terms of the PIE Act been satisfied? Were such
improvements
useful and/or necessary? Found such improvements
effected without lessor’s consent and in any event, luxurious.
Has a lien
been established? Further found that no proper
lien
has been established, applicant made a case for relief sought.
Respondents to be evicted and ordered to pay costs.
ORDER
(a)
the first and second respondents should vacate from the above
mentioned
premises, portion erf [....], Bedfordview Extension [....],
better known as [....] D[....] Place, concord Road, Bedford View,
voluntarily
by no later than 8 December 2021, failing which the
Sheriff of the court be and is hereby authorised to take all
necessary steps
to give effect to this order, including but not
limited to, and enlisting the services of the South African police
service to ensure
the execution of this order.
(b)
the first and second respondents are ordered to pay the costs
of this application, on a party and party scale, including the costs
consequent upon the employment of counsel, the one paying the other
to be absolved.
Majavu
AJ
Introduction
[1]
The applicant, being the lawful registered owner of portion 2 of erf
[....], Bedfordview
Extension [....] Township, otherwise known as
[....] D[....] Place, Concord Road, Bedfordview (“the
premises”), seeks
an eviction order against the first and
second respondents.
[2]
The premises being used by the respondent as the primary residence
triggered an application
in terms of section 4(2) of the Prevention
of Illegal Eviction From and Unlawful Occupation of Land Act
[1]
,
which Sutherland J authorised on 28 February 2018.
[3]
The first and second respondent’s resist this application and
raise a
lien
as a defence, which according to them, entitles
them to remain in possession of the premises until they have been
fully compensated
for the improvements, which they allege to have
affected that in the same premises. The third respondent did not
participate in
these proceedings, and by implication, abide the order
which I will make. For ease of reference, I will refer to the first
and
second respondents as “the respondents”, mindful that
the second respondents have not been specifically named.
Issues
for determination
[4]
It appears to me that the issues have crystalized as follows:
(i)
whether the respondents are indeed illegal occupiers;
(ii)
whether there has been compliance with the statutory prerequisites
for an eviction in respect of premises
used as a primary residence;
(iii)
whether or not the respondents have indeed established a
lien
which entitles them to remain in occupation until the collateral
issue of compensation for improvements has been resolved.
[5]
There appears to be no doubt that statutory prescripts, have indeed
been successfully
complied with by the applicant. It is common cause
that the applicant’s ownership is firmly established and in the
result,
not placed in dispute.
[6]
It is also common cause that the respondents are indeed
occupiers
of the said premises. It is the unlawfulness or otherwise of their
occupation which falls for determination. Needless to say, the
respondents take the view that they are
lawful
occupiers
,
pursuant to a lease agreement
[2]
concluded between them and the applicant,
albeit
,
its initial tenure has expired, however, their continued occupation
was to a large extent, permitted by the applicant until the
lease was
cancelled when the respondents failed to remedy the breach. The issue
that muddied the waters, in the manner of speak,
is
,
the subsequent dispute regarding compensation for the improvements
effected by the respondents, or whether or not such could be
off set
from the purchase price which the applicant would accept. In any
event, the sale of the property is not central as the
applicant
denies that it even had any such discussions with the respondents.
Similarly, the respondents do not persist with the
intended sale as
alleged. Thus, compensation (in the face of an eviction) is the only
issue, hence the mounting of a
lien
by the
respondents.
I shall return to this aspect later.
[7]
An answer to the second requirement would be determinative of this
application. It
is for that reason that I will focus largely in the
examination of that aspect.
The
lease agreement
[8]
The lease agreement would commence on 1 March 2010 for a period of
sixty (60) calendar
months and terminate on 28 February 2015. The
respondent should pay a monthly rental in the amount of R 20,000 for
the term of
the lease period, which excludes water and electricity
consumption (“consumables”). Such a rental to be payable
on
the first day of every month. There was also provision for an
annual escalation at the rate of 20%, as well as a securing deposit
of R20,000 to be payable upon acceptance of the terms thereof. On
termination, the applicant may at his discretion applied the
deposit
and interest thereon, towards the payment of all amounts for which
the first respondent is liable under the lease agreement,
including
but not limited to a rental, consumables and/or the costs of
repairing the damage is to the premises and/or replacing
lost keys.
Most importantly, for present purposes, the applicant warranted that
the property is duly furnished and that the first
respondent would be
responsible for the good working order of all the appliances at the
property, having been so inspected, prior
to occupation and confirmed
to be fit for purpose, by both parties. This would be supported by
the necessary inventory confirming
same. Lastly, the first respondent
would be liable for damages of the interior and exterior of the
premises including,
inter alia
all doors, windows, carpets
tiles
et cetera
.
[9]
Later, on or about 3 February 2010 the parties concluded an
addendum
to the original lease agreement, whose material times can be briefly
summarised as follows; the lease agreement would commence
on 1 March
2010 and would expire on 28 February 2012, effectively reducing the
original term by three years. It further provided
that the first
respondent would “open” a consumables account directly
with the relevant authority, the municipality
and provide the
applicant with proof thereof. Allied to that, the first respondent
undertook to pay for such consumables as they
fell due, failing
which, that would be regarded as a breach of the terms of the
addendum
, which, if un remedied as prescribed, could lead to a
cancellation of the lease agreement. The
addendum
further
contemplates a renewal period of a further two years, at the sole
discretion of the applicant.
[10]
Notably, neither the original lease agreement nor the
addendum
,
made any provision for effecting/ or authorizing any improvements by
the respondents, instead,
clause 12 unequivocally prohibits such
.
I will return to that aspect later.
[11]
Over the years, the respondents made erratic payments, resulting in
the amount of R 114 000,00
being in arrears in respect of
rental. This prompted in the applicant calling on the respondents to
rectify the breach. This was
done on 11 July 2018. The respondents
have failed to heed the notice and the arrear rental amount remains
unpaid. In the result,
the applicant proceeded to cancel the lease
agreement, as he was entitled to do, however, the respondents refused
to vacate, hence
this application, to have them evicted. The
applicant asserts that the respondents are illegal occupiers of his
premises.
Why
are the respondents resisting this application?
Lien
[12]
Simply put, a
lien
is a right of retention. It can also be
mounted as a defence by the
lien
holder against vindicatory
action by the owner, until the latter has fully compensated the
former for effected necessary and useful
improvements. This seems to
be what the respondents in this case places reliance on. It also
emanates from an agreement between
the lien holder and the other
party (the debtor), in this case, the applicant. This, in my view,
provides a useful starting point
to contextualise the issues and
ultimately an issue for determination in this matter.
[13]
Much of the background facts are commons cause and will thus not be
repeated. The respondents
aver that the original idea was what is
colloquially referred to as a “
rent to buy”
type
of arrangement. This, they say, was evidenced by the deletion of
clauses 24, 27, 28 and 30 of the original agreement be deleted.
To
the contrary, this is not borne out by the facts; instead, this
bolsters the contention of the applicant, to the extent that
he
strongly denies having entertained any discussion with the
respondents for the sale of the premises.
[14]
With this understanding, the first respondent avers further that he
and his family took occupation
and assert quite firmly, that he then
commenced with the renovations of the premises
with
the permission of the applicant
[3]
.
[15]
According to the respondents, the expended an amount of R1.5 million
in “renovating and
peppering the premises” with the
express permission of the applicant and the underlying intention
being that at some point,
they would purchase the property. This is
denied by the applicant.
[16]
The renovations included enclosing the balcony for an amount of
R320 000,00 paving and waterproofing
for an amount of R200,000,
a further amount of R 143,520,00 rent was spent on kitchen
appliances.
[17]
Over and above these improvements, the respondents spent a further
amount of R 4 218,88
for granite tops. Later, a further amount
of R 246 500 was spent on other kitchen appliances, as well as a
water purifier, exclusive
booster, silver taps and installation
thereof, in the amount of R 5 164. All of these improvements
were supported by invoices
and other vouchers. Nothing turns on this
as the amounts
per se
, as the applicant bears no knowledge and
thus unable to admit and deny. Instead, the applicant’s
contention is that
firstly,
he never authorised those
improvements and
secondly
, given the nature of the description
and aesthetics, those could hardly be said to have been necessary for
the purposes for which
the premises were rented. They are quite
luxurious. In fact, the applicant avers that upon taking occupation,
the premises, including
all the appliances, were habitable and fit
for purpose. The fact that the respondents wanted to add a different
look and feel
aesthetically, cannot and does not give rise to
a
lien
, as contended by the respondents.
[18]
The respondents also suggested that due to the fact that they are of
Chinese origin, their command
and understanding of the English
language is poor and thus could have led to a misunderstanding of the
terms of both agreements.
They said that, at all material times, they
believed that they were allowed to effect the improvements which they
did, as it was
their intention to purchase the property at some point
in the future. Quite frankly I fail to see how and on what basis it
could
be found to be reasonably true, that they concluded such an
agreement without understanding its full import. It is also clear
that
the improvements effected were quite elaborate and luxurious.
[19]
The respondents also confirm that they have paid the arrear amount in
full into their attorneys
trust account and will continue to do so on
a month-to-month basis until the finalisation of this matter.
Conceivably, the original
arrear amount has increased significantly
and the applicant continues to be without the corresponding rental
amount, while the
respondents remain in occupation and instead pay
the rental amount over to their attorneys, for safekeeping in the
trust account.
[20]
The respondents make it plain that they are withholding the payment
of the rental amount as security
for the recovery of the improvements
(amount) which they have effected, with the applicant’s
permission, on their version.
They further allege that they were
deceived by the applicant, who lured them to believe they would be
spending money on a property
they would own
, hence they
expended so much money on improvements. It seems plain that, should
the sale not proceed (as is most likely), the respondents
would be
uncontestably out of pocket. This seems to be the
gravamen
of
the matter. (emphasis added)
[21]
It is further common cause that the parties are not
ad idem
with regard to the purchase price, which has resulted in the sale not
being concluded. Other than to state that the parties seem
to be in
disagreement with regard to whether the value of the improvements
should be offset from the purchase price, I do not regard
their
differences to be most relevant for purposes of the issue for
determination before me. Whatever the parties’ respective
views
on the appropriate purchase price, as well as the resultant sale
agreement may be, I will confine myself to the application
before me
and the relief sought and weighing it against a defence (
lien)
mounted by the respondents.
Evaluation
Applicant’s
version
[22]
The applicant denies ever having any discussion with the respondents
about selling the property
as he acquired it for investment purposes.
The estate agents (Jawitz Properties, through Mr Greg Simpson and not
the applicant’s
mother as averred) indeed secured a
tenant
not a purchaser
, this was 19 January 2010. This resulted in the
reference to potential sale of the property being deleted in the
subsequent
addendum
on 2 February 2010. This is makes
commercial sense and indeed in line with the applicant’s
contention. It would make no commercial
sense for any owner to allow
a tenant to effect such material improvements on a property leased of
such a short period, 24 months,
reduced from the original 60 months.
It is more probable that the applicant did not consent to such
improvements
[23]
In fact, clause 12 of the lease agreement (the original agreement)
and the
addendum
,
expressly prohibits any unauthorized alterations and improvements
[4]
.
[24]
It is also common cause that the applicant resides in Canada and thus
could not practically be
expected to notice such improvements as and
when they were effected. At best, the applicant’s agents failed
him.
[25]
It also appears to be counter intuitive that if indeed the applicant
intended to sell the premises
to the respondents, why would he not
accept an offer in the amount it is alleged to have demanded, namely
R3.6 million and persist
with an arrangement to receive a paltry
amount of R20 000 per month? It would appear to make business sense,
especially for the
owner who resides beyond the borders of South
Africa to accept his asking price and pocket a lump sum. This
observation lends credence
to the version of the applicant, which I
readily accept and dismiss that of the respondents.
Respondent’s
version
[26]
The respondents aver that they concluded a lease agreement, with the
intention to buy the leased
premises. They laboured under the
impression that they could affect improvement, which they did, as
they would ultimately own the
property. The existence of the lease
agreement is not in dispute. The very lease agreement makes no
provision to authorize the
respondents to effect any improvements. To
the contrary, clause 12 prohibits that in no uncertain terms and it
goes further to
state that such a lessee, in the position of the
respondents, would be precluded from receiving compensation for such.
[27]
They also allege that they were misled by the applicant’s
mother into believing that they
could purchase the property and by
implication, could effect such improvements and/ alterations to the
appliances, contrary to
what was ordained in the lease agreement. In
order to explain their way out of this express provision, belated
reliance is placed
on the lack of proficiency in English, being
Chinese nationals. The confirmatory affidavit by the applicant’s
mother has
not been gainsaid. I accordingly find this contention is
simply unmeritorious and falls to be dismissed. When one has regards
to
the offers to purchase, which they rely upon, as well as set-off,
which they seek to invoke in order to re-negotiate the purchase
price, the only inescapable conclusion is that they are skilful
business people (at least the first respondent) and language
proficiency
not a bar at all.
[28]
The fact that the respondents are paying monthly rental to their
lawyer’s trust account
is an acknowledgement that they cannot
occupy the premises without the concomitant payment of rental.
However, the basis of such
occupation fell away when the lease
agreement was cancelled. Mindful of that, the respondents seem to
suggest that until they are
fully compensated for the value of the
improvements, or what they have expended, they are entitled to remain
in occupation in perpetuity.
I do not agree.
[29]
In this case, a protectable
lien
has not been established. Any
hope of such has been fully dealt with by clause 12 of the self-same
agreement. Put differently,
in this case, the defence of a
lien
has not been established. The respondents are clutching on straws.
First they tried the “
rent to buy”
approach,
later, “
English proficiency deficit”
, then “
being
misled by the applicant’s mother”
, “
hoping
to stay at the premises while paying rent to their lawyers, until
this matter is resolved”,
etc.
Conclusion
[30]
In the above reasons, I find that the respondents are indeed unlawful
occupiers.
[31]
I further find that the statutory prescripts in terms of s4(2) of the
PIE Act have been complied
with.
[32]
Assuming that the respondents rely on debtor/creditor lien, such
would have to be rooted in contract,
either expressly or impliedly.
In this case, the contract excludes such performance, which gave rise
to the resultant expenditure
by the
lien
holder
.
In any event, even if I am wrong, the respondents not even allege the
existence of such contract. They make a bold assertion that
the
expenses incurred increased the value of the property. In such a
case, they a court would still have a discretion to limit
compensation to the amount by which the value of the property has
been increased or the amount of expense incurred by the respondents,
whichever, is the lesser
[5]
.
[33]
Further assuming that the respondents’
actual expenses are true, which is still not readily admitted
by the
applicant, there appears to be no credible evidence that the value of
the property was increased. A bold suggestion seems
to be that, if
the respondents expended in excess of R1 million on the aesthetics
and some appliances, which may be removed, as
demanded by the
applicant, so as not to retain the “enrichment”, it
necessarily follows that the value of the said
property has been so
proportionately increased. That is an over simplistic argument, which
I do not agree with. To amplify this
assertion, the respondents
compare the original purchase price which was R2.3 million, against
the applicant’s asking price
in the amount of R3.3 million and
arithmetically argue that, at the very least, the value of the
property has been increased by
approximately R700 000,00. At
first blush, that may appear to be the case, however absent any
empirical evidence to support
that assertion, it cannot be readily
accepted that such an increase in the value establishes a
lien
worthy of protection or solid enough to resist the relief (
rei
vindicatio
) sought by the applicant. These improvements, are
neither necessary nor useful, in the absence of evidence or even
allegations
for that matter, that the original appliances are neither
fit for purpose, or are in a state of disrepair which renders them
non-functional.
They would most certainly be appealing to the eye and
make for a good fashion statement. The applicant has thrown down the
gauntlet
to the respondent and allowed them to remove such, without
causing damage to the original structure. This offer has not been
taken
up by the respondents.
[34]
Consequently, and as a matter of law, I find that the respondents
have not established facts
surrounding a debtor/creditor
lien.
I
further find that clause 12 of the lease agreement contains a
Shifren
clause, which specifically states that no enrichment claim or claim
lies for improvements of the said property. I have already
found that
reliance on the lack of proficiency in English is a nonstarter. This
was so because the version of the respondents is
palpably
uncreditworthy and far-fetched. I refer to the
NDPP
v Zuma
[6]
,
per Harms DP, who
inter
alia
said the following:
“
[26] motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause
facts. Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine
probabilities. It
is well established under the Plascon-evidence rule that were in
motion proceedings dispute of fact arise on
the affidavits, a final
order can only be granted if the facts are varied by the applicant’s
(Mr Zuma) affidavits, which
have been admitted by the respondent (the
NDPP), together with the facts alleged by the latter, justify such
order. It may be different
if the respondent’s version consists
of our uncreditworthy denials, raises fictitious dispute of fact, is
palpably impossible,
far-fetched or sought clearly untenable that the
court is justified in rejecting them merely on the papers.”
[35]
In this case, I am persuaded that the above
dictum
captures
the version of the respondents accurately; hence I considered and
made the determination on the papers.
[36]
I find that the applicant has made out a case for relief sought,
having complied with the applicable
statutory prescripts.
[37]
It may well be that respondents have a claim, which they can still
pursue separately, if they
are so advised. It is a matter which I
take no further.
Costs
[38]
On costs, there is no reason to depart from the general rule that
costs should follow the result.
Order
[39]
In the circumstances I make the following order;
(i)
the first and second respondents should vacate from the premises
situated at Portion 2 of erf
[....], Bedfordview Exrension [....]
Township, better known as [....] D[....] Place, Concord road,
Bedfordview, voluntarily by
no later than 8 December 2021, failing
which the Sheriff of the court be and is hereby authorised to take
all necessary steps to
give effect to this order, including but not
limited to, enlisting the services of the South African Police
Service (“the
SAPS”) to ensure the execution of this
order.
(ii)
the first and second respondents are ordered to pay the costs of this
application, on a party and party
scale, including the costs
consequent upon the employment of counsel, the one paying the other
to be absolved.
Z M P MAJAVU
Acting Judge of the
High Court
Gauteng
Local Division, Johannesburg
HEARD
ON:
11 June 2021
JUDGMENT DATE:
8 September 2021
FOR THE APPLICANT:
Adv Van der Merwe
INSTRUCTED
BY:
CMM Attorneys Inc.
FOR THE RESPONDENTS
:
Adv WJ Scholtz
INSTRUCTED
BY:
SKV Attorneys Inc.
[1]
Act 19 of 1998
[2]
lease agreement concluded on 3 February 2010, read with the addendum
thereto, which provided that the lease would expire on 28
February
2020.
[3]
In paragraph 8 of the answering affidavit “
8.
Subsequent to the conclusion of the agreement of lease, my family
and I took occupation of the premises with the intention
to purchase
the property
and
with
permission
of the applicant
during the subsistence of the agreement of lease, I commenced to
renovate and better the property” (accentuation) read
with
paragraph 9.
[4]
“
12
ALTERATIONS AND IMPROVEMENTS
the
LESSEE shall not alter or interfere with the electrical or other
installations on the premises, nor carry out any alterations,
additions or improvements to the premises. Should the LESSEE make
any alterations or improvements on the premises, structural
or
otherwise,
with or without
the consent of the LESSOR,
he shall in
any event receive no compensation therefore and shall either at his
own expense remove same immediately upon request
by the LESSOR
,
making good all damage, or leave them should the LESSOR so require,
becoming the property of the LESSOR….”
[5]
Fletcher and Fletcher v Bulawayo Water Works Co Ltd 1915 (A.D.) 636
at 648, 656-657, 664-665.
[6]
NDPP v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA)