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[2017] ZALMPPHC 5
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Pacific Breeze Trading 53 (Pty) Ltd v Marais and Others (HCAA01/2017) [2017] ZALMPPHC 5 (12 May 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE NO: HCAA01/2017
12/5/2017
In
the matter between:
PACIFIC
BREEZE TRADING 53 (Pty)
Ltd
APPELLANT
and
BAREND
DANIEL MARIAS 1
st
RESPONDENT
MARIA
SUSANNA MARIAS 2
nd
RESPONDENT
TZANEEN
LOCAL MUNICIPALITY 3
rd
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
This
is an appeal against the judgment and order of Ndlokovane AJ in terms
of which the
point
in limmine
of
lis
alibi pendens
raised by the First and Second Respondents against the Appellant’s
application was upheld and it was ordered that the application
for
the eviction of the First and Second Respondents from the Appellant’s
farm is stayed pending the finalization of the
action instituted by
the First and Second Respondents in the Gauteng Division of the High
Court, Pretoria in case number 65785/11,
as well as that the costs of
the application be paid by the Appellant.
[2]
The appeal before us is with leave of the Court
a
quo.
[3]
The order that the Appellant sought in the Court
a quo
and
seeks in this appeal is the following:
3.1. That the First and
Second Respondents presently occupying the premises known as PORTION
5 OF THE FARM LETABA DRIFT, REGISTRATION
DIVISION LT, LIMPOPO
PROVINCES in extent of 93,5949 hectares held by Deed of Transfer
T 72731/2005 and also
known as Letaba Drift, Georges Valley 21G, Georges Valley Road,
district of Tzaneen, Limpopo ( hereinafter
called “the
property”) be declared not to be in lawful possession of the
property, declared to have no legal right
to occupy the property and
that they currently occupy the property unlawfully, and further that
the amount of R 1 000 000.00
security provided by the
Appellant is sufficient to suspend the alleged lien claimed by the
First and Second Respondents over the
property;
3.2. First and Second
Respondents presently occupying the property, vacate the property
within 30 days from date of this order.
3.3.
That the First and Second Respondents, jointly and severally, the one
paying the other to be absolved, are ordered to pay the
costs of the
application on the scale as between attorney and client, which cost
order is to include the reserved costs of 6 September
2016.
[4]
The following chronological summary of relevant facts and / or
events, which are either common cause or not disputed, provides
the
background to the eviction application brought by the Appellant in
the Court
a quo
:
4.1.
The Appellant is the owner of the immovable property, PORTION 5 OF
THE FARM LETABA DRIFT, REGISTRATION DIVISION LT, LIMPOPO
PROVINCES in
extent of 93, 5949 hectares held by Deed of Transfer T 72731/2005 and
also known as Letaba Drift, Georges Valley 21G,
Georges Valley Road,
district of Tzaneen, Limpopo (hereinafter called “the
property”). The property is a commercial
farm of avocados and
bananas with improvements thereon that includes a dwelling house and
some other buildings on the property.
On 3 December 2010 the
Appellant entered into a written agreement of sale with the First and
Second Respondents (“the Respondents”)
in terms whereof
the Appellant sold the property to the Respondents. The Respondents
paid the first few instalments due in terms
of the Deed of Sale and
took occupation of the property for farming purposes during December
2010 and for residential purposes
also on 1 March 2011;
4.2. The Respondents, by
then in occupation of the property, failed to comply with the
provisions of clause 21 of the Deed of Sale
in that they suspended or
stopped all payments towards the agreed purchase price. On 14
September 2011 the Appellant gave the Respondents
a written notice in
terms of clause 10 of the written agreement that the Respondents were
in breach of the sale agreement and that
upon failure to rectify the
breach the agreement would be cancelled.
It is
common cause that the Respondents failed to rectify the breach. On 31
October 2011 the Appellant properly cancelled the sale
agreement in
writing. The cancellation is common cause and no legal reason
remained for the Respondents to remain in occupation
of the property
other than the lien that is allegedly claimed to exist.
4.3. It is common cause
that on 16 November 2011 the Respondents, as Plaintiffs, sued out a
summons in the High Court, Gauteng Division,
Pretoria under case
number 65785/2011. In their action the Respondents sought the
following relief against the Appellant:
4.3.1. a declaratory
order that the Deed of Sale entered on 3 December 2010 is declared
void ab initio;
4.3.2. an order to compel
the Appellant to repay the amounts paid towards the purchase price in
instalments totaling R 530 000.00;
4.3.3.
an order that the Appellant must pay the Respondents R 1 000 000.00
in compensation for useful and necessary improvements
made to the
property in that the Respondents
(as
Plaintiffs) farmed the land, repaired the land and effected
improvements and necessary renovations to the farm.
4.4. The Appellant, as
Defendant, not only pleaded to the claims, but also instituted
counterclaims against the Respondents. In
the counterclaim the
Appellant claimed,
inter alia
the following:
4.4.1. eviction of the
Respondents from the property and return of possession and occupation
of the property with all its fixtures
and fittings to the Appellant
;
4.4.2.
an order that the Respondents sign any document and do all that is
necessary to deliver and / or re–cede the right
to take water
from a water resource in terms of
section 21(a)
of the
National Water
Act 36 of 1998
to the Appellant;
[5]
As a result of the common cause facts outlined above, there exists no
sale agreement in respect of the property since at least
31 October
2011 when same was cancelled by the Appellant. The Respondents are
holding over and they remain in unlawful occupation
of the property
ever since 31 October 2011, but allege a lien exists enabling them to
proceed with this occupation.
[6]
The action instituted by the Respondents against the Appellant in
Gauteng Division, Pretoria, is still pending (for almost six
years).
It has been set down for trial about three times and was postponed on
all occasions. On the other hand the Respondents
remain in occupation
of the property and continue to benefit from their farming activities
on the farm. It is common cause that
they do not pay any rental or
any form of compensation to the Appellant. The Appellant continues to
service his mortgage bond with
ABSA Bank in an amount of R 22 000.00
per month in respect of the property.
[7]
On 4 May 2016 the Appellant instituted the present application
proceedings in the Court
a
quo
in
terms of
section 4
of the Prevention of Illegal Eviction from and
Unlawful Occupation Act 19 of 1998 (“the PIE Act”) for
the eviction
of the Respondents from the property. The Respondents
opposed the application and raised a special plea of
lis
alibi pendens
which
was upheld by the Court
a
quo.
It
is against this background that the present appeal is before us.
[8]
There are two issues to be decided in this appeal:
8.1.
whether the Court
a quo
was correct in upholding the plea of
lis alibi pendens
and thus ordering the stay of the
proceedings pending the finalization of the pending action in Gauteng
Division, Pretoria;
and
8.2. whether the
Respondents have a valid lien on the property justifying their
continued occupation until compensated by the Appellant
as the owner
of the Property.
[9]
As to the requirements of the plea of
lis
alibi pendens,
the
Respondents in the Court
a
quo
had
the onus to show the following:
9.1. pending litigation;.
9.2. between the same
parties;
9.3. based on the same
cause of action;
9.4. in respect of the
same subject - matter.
Once
these requirements have been established a factual presumption arises
that the second proceedings are
prima facie
vexatious and the
party who instituted the second / new proceedings bears the onus of
convincing the Court that the new proceedings
are not vexatious. The
Court has an overriding discretion to order a stay of the
proceedings.
[10]
In
Caesarstone Sdot – Yam Ltd v. World of Marble and Granite
2000 CC and Others
2013 (6) SA 499
(SCA)
the issue on appeal was
whether the requirements for the plea were met, and, if so, whether
there were nonetheless grounds for the
SCA to exercise its discretion
to refuse a stay, or if the requirements of the plea were not met,
whether there was another basis
on which to stay the proceedings. The
Court held that as for the requirement of the same cause of action,
this could be relaxed
if the circumstances justify doing so. It would
be relaxed in such an instance to require that the central issue be
the same in
both proceedings. Similarly, the requirement that the
relief claimed had to be the same could be relaxed where the
circumstances
supported doing so.
[11]
In the present case the Appellant bears the onus to show that the
second proceedings are not vexatious. To do that it had to
show and
satisfy the Court that, despite the fact that all the factual
elements (listed in sub – paragraphs 9.1 to 9.4 above)
are
present, the balance of convenience and equity are in favour of the
second proceedings to proceed.
See
:
Geldenhuys v. Kotze
1964 (2) SA 167
(O)
It
is clear on the authorities that a plea of
lis alibi pendens
does
not have the effect of an absolute bar to the proceedings in which
the defence is raised. The Court intervenes to stay one
or other of
the proceedings because it is
prima facie
vexatious to bring
two actions in respect of the same subject - matter. The Court has a
discretion which it will exercise in a
proper case, but it is not
bound to exercise it in every case in which a
lis alibi pendens
is
proved to exist.
See
in this regard:
Loader
v. Dursot Bros (Pty) Ltd
1948 (3) SA 136
(T) AT 138
Geldenhuys
v. Kotze supra and Ntshiqa v. Andreas Supermarket (Pty) Ltd
1997 (1)
SA 184
(TK) at 192 A / B - C
[12]
The Court’s overriding discretion must be guided by whether the
balance of convenience and equity is in favour of allowing
a case to
proceed.
Levenberg
AJ in
Nordbak
(Pty) Ltd v. Wearcon (Pty) Ltd and Others
2009 (6) SA 106
(W) at 114H
– 115A
said the following:
“
The
Respondents’ Counsel drew my attention to
Geldenhuys
v. Kotze
1964 (2) SA 167
(O)
as
being the case that indicated the manner in which a Court should
exercise its discretion in deciding whether or not to allow
an action
or application to proceed in the face of a pending action
appertaining to the same subject - matter. I am not going to
analyse
all the factors contained in
Geldenhuys
v. Kotze.
Ultimately
the Court must be guided by whether the balance of convenience and
equity is in favour of allowing the case to proceed.
It
emerges from
Geldenhuys v. Kotze
that another important factor
that should be considered in determining whether or not to allow the
second action or application
to proceed is whether the Respondents
have a proper defence to the action. If the Respondents do not have a
bona fide defence,
there is very little reason to allow the plea of
lis alibi pendens to succeed.”
[13]
In the case before us in this appeal I am of the view that both
convenience and equity require that the Appellant’s application
be dealt with and that the defence of
lis alibi pendens
not be
acceded to. I say this for the following reasons:
13.1. The
Respondents do not have a proper or
bona fide
defence on the
merits. They rely on the alleged lien they have on the property but
as will be shown later in this judgment such
a lien does not exist or
could not be established on the papers filed of record. The
Respondents have not offered any defence or
even a
bona fide
defence to continue their occupation of the property.
13.2. The pending action
in the Gauteng Division of the High Court has being dragging on for
almost six years with no indication
that it will be finalised shortly
or at all. The Appellant is being prejudiced in that it does not
receive any rental from the
Respondents’ continued occupation
of the property.
13.3. The Appellant
continues to pay a monthly amount of R 22 000.00 to ABSA Bank in
respect of the mortgage bond over the
property whilst the Respondents
continue to benefit from the farming activities and without
compensating the Appellant. The equities
scream out in favour of the
Appellant in this case.
13.4. The facts set out
in the Appellant’s founding affidavit are in the main not
contested and largely of common cause. It
is therefore convenient for
the Court to dispose of this matter at this stage. There is no reason
why the Appellant’s final
relief should be withheld from it at
this stage. A stay of the proceedings will only keep the Appellant
out of its rights for longer.
13.5. The determination
of the issues between the parties at this stage will relieve the
parties as well as the Court of the obligation
to hear extensive
evidence in a future trial in Pretoria traversing the same
subject-matter as was traversed in this application.
13.6. Even in the event
of a finding of the Court
a quo
that all the minimum
requirements for
lis alibi pendens
were present, the present
application should have been found to be vexatious and that the
continuation of the present application
will cause injustice before
the present application could have been stayed.
The Court
a quo
should
have considered the aspect of vexatious and found positively that the
present application is indeed vexatious
before
deciding
whether to stay the proceedings or not. The Court
a quo
failed
to do so.
13.7. When no positive
finding is made by a Court on the facts that the application is
indeed vexatious or frivolous and that the
continuation may cause
injustice, the application should not be stayed.
See
:
Belmont House (Pty) Ltd v. Gore and Another NNO
2011
(6) SA 173
(WCC) at [17] [18] & [19]
The
authors of
Herbstein & Van Winsen, The Civil Practice in the
High Court of South Africa, 5
th
Ed. at 306
explains the Court’s inherent jurisdiction to stay
proceedings in relation to
lis alibi pendens
as follows:
“
The
power to do so will be exercised sparingly and only in exceptional
cases. This should be done with great caution and only in
clear
cases. Proceedings will be stayed when they are vexatious or
frivolous or when their continuance, on all circumstances of
the
case, is, or may prove to be, an injustice or serious embarrassment
to one of the other parties….”
[14]
Accordingly, the Court
a quo
should have exercised its
discretion and permitted the Appellant to go on with its application
for eviction in these proceedings,
notwithstanding the overlap
between the relief sought in this application against the Respondents
and that sought against the Appellant
in the Gauteng Division,
Pretoria action.
[15]
Mr Klopper, Counsel for the Appellant submitted, as a further ground
of appeal, that the Court
a quo
erred in finding that all the
requirements of a plea of
lis alibi pendens
have been
satisfied. Counsel argued that one of the essential requirements for
the issue of
lis alibi pendens
to be present and to be
considered, namely that the cause of action in the present
application and the cause of action in the Appelant’s
counterclaim in the Gauteng Division action under case number
65785/2011 is the same, is clearly absent, in that the different
causa is certainly not the same.
[16]
Counsel further argued that the basis or cause of action of the
present application is referred to the statute, namely the
PIE Act
wherein the Appellant sought an order that the Respondents be evicted
from where they permanently reside in a dwelling
house on the
Appellant’s property. The Appellant’s counterclaim in the
Gauteng Division under case number 65785/2011
is a
rei vindicatio
for possession of the Appellant’s commercial farm and the
water rights attached thereto. I agree with Counsel that the present
application for eviction of the Respondents from the dwelling house
is in terms of section 4 of PIE Act and the
rei vindicatio
action
in the Gauteng Division where the Appellant sues for the return of
possession of the commercial farm and water rights attached
thereto,
are very distinctive.
[17]
The present application focus on the dwelling house and the
requirements for the present application is determined by statute,
namely the provisions of the PIE Act whereas in comparison the
requirements for the
rei vindicatio
is determined by the
common law and relates simply to possession of property. The Court
a
quo
erred in not considering the different causa, but simply
determined incorrectly that the present application and the
Appellant’s
counterclaim in the Gauteng Division involves the
same property and therefore found incorrectly that the defence of
lis
alibi pendens
must be present.
[18]
The Court
a quo,
on a correct application of the facts and a
correct identification of the different relief requested, should have
found that the
requirements of
lis alibi pendens
were not all
present and should have dismissed the Respondents’ point
in
limmine
of
lis alibi pendens.
On this leg alone, the
appeal stands to be upheld.
[19]
I proceed to deal with the issue as to whether the Respondents have a
valid lien justifying them to remain in occupation of
the property.
[20]
The Respondents, in their action instituted in the High Court,
Gauteng Division, Pretoria, claim compensation in the amount
of R
1 000 000.00. The claim is based on alleged enrichment of the
Appellant as the owner of the property for alleged useful
and
necessary improvements made to the immovable property. The
Respondents allege that this claim creates a lien which is a defence
against being evicted from the immovable property of the Appellant.
The existence of the lien is vehemently disputed by the Appellant.
[21]
In their particulars of claim in the action instituted in the Gauteng
Division, Pretoria the Respondents claim that the improvements
to the
immovable property is based on the fact that they
a.
Farmed the land
b.
Repaired the land; and
c.
Effected improvements and necessary renovations
to the
farm.
In
their answering affidavit in the present application the Respondents’
claim for the alleged improvements to the property
is now for
a.
Fertilizer,
Chemicals, Irrigation Costs, Fittings and Pipes, land clearing and
land development, fuel and water : R 932 991.00
b.
Labour
and small tools Costs : R 953 191.00
c.
Nursery
Costs : R 30 133.00
d.
Vehicle
Costs : R 350 386.00
The
total amount for the alleged lien is R 2 226 701.00. This
is more than double the amount of R 1 000 000
claimed in
the pending action in Gauteng Division, Pretoria.
[22]
The new version regarding the alleged expenses is also vehemently
disputed. None of the alleged expenses referred to in the
“new”
version constitute improvements to the immovable property. All the
aspects listed by the Respondents in an attempt
to support the
argument of the existence of an enrichment lien are simply production
expenses incurred by the Respondents who farmed
on the Appellant’s
property. This much was conceded by Mr Booysen, Counsel for the
respondents.
[23]
For a valid enrichment lien to exist, the minimum requirement is that
the amounts must have been used for improvements to the
immovable
property. The party that claim that such improvements were effected
is burdened with the onus to prove that the owner
was indeed
unjustifiably enriched. In my view the Respondents dismally failed in
this regard.
See:
Brooklyn House Furnishers (Pty) Ltd v. Knoetze and
Sons
1970 (3) SA 264
(A) AT 270 H and
Wynland
Construction (Pty) Ltd v. Ashley – Smith en Andere
1985 (3) SA
789
(SCA) at 812 h – 813 B.
[24]
In
casu
the Respondents must prove the existence of the lien
to support their claim that the Appellant has been enriched. As
indicated
above there is no evidence that the Appellant was enriched
in any amount at all. It is trite law that if a party fails to prove
unjust enrichment no lien can follow.
See:
Buzzard Electrical (Pty) Ltd v. 158 Jan Smuts Avenue
Investments
(Pty) Ltd
1996 (4) SA 19
(A).
I
accordingly make a finding that no enrichment claim exists in favour
of the Respondents and no enrichment lien exists or could
ever came
into existence in favour of the Respondents.
[25]
The Appellant has, notwithstanding there existing no basis for the
alleged lien, provided security in the amount of R 1 000 000.00
for any claim based on enrichment by the Respondents. Despite the
security furnished, the Respondents failed to comment thereon
but
persisted in their unlawful occupation of the property.
It
is an established principle that the owner of the property subject to
a right of retention (lien) or alleged but disputed right
of
retention may defeat the lien by furnishing adequate security. The
amount of security is in the discretion of the Court.
See:
Sandton Square Finance (Pty) Ltd and Other v. Vigiloti
and
Another
1997 (1) SA 826
(WLD).
[26]
In the event I am wrong in my finding that a lien does not exist in
favour of the Respondents in this matter, I am of the view
that the
Appellant has provided adequate security to substitute the alleged
but disputed lien. Consequently the alleged lien must
be uplifted and
is hereby uplifted. This then entails that the Respondents must be
evicted from the property.
[27]
The dispute between the Appellant and the Respondents in this matter
arise from the written sale agreement entered into on
3 December
2010. There are certain terms of the written agreement that prohibit
the respondents as purchasers from claiming compensation
from the
Appellant as the seller in respect of whatever expenses the
Respondents might have incurred in connection with the property.
The
following are such provisions in the agreement:
27.1. Clause 20.1 thereof
stipulates that the Respondents, as purchasers of the property, must
at their own expense and without
any recourse to the Appellant as a
seller, maintain in good order and condition the immovable farm
property.
27.2. Clause 20.2
stipulates that the Respondents must do all necessary repairs and
maintenance work related to the property and
if they fail to do so,
the Appellant may have it done and reclaim the costs thereof from the
Respondents.
27.3. Clause 20.3
stipulates that the Respondents as purchasers of the property, shall
make no alterations or improvements to the
property without written
permission of the Appellant as the owner. No such written permission
was ever requested by the Respondents
and of course no such
permission was ever given by the Appellant.
27.4. Clause 20.3 further
stipulates that the Respondents shall not be entitled to any
compensation from the Appellant as the owner
and the seller of the
property for any improvements of whatsoever nature that the
Respondents may have caused to the property.
[28]
The Respondents are accordingly barred by the contractual terms of
the agreement from instituting any claim for compensation
against the
Appellant.
[29]
In the result the appeal should succeed and I accordingly grant the
following order:
1.
The
appeal is upheld with costs.
2.
The
order of the Court a quo is set aside and substituted with the
following order:
2.1.
The
plea of
lis
alibi pendens
raised by the Respondents is dismissed with costs, such costs to
include the costs reserved on 6 September 2016;
2.2.
That
the First and Second Respondents presently occupying the premises
known as
PORTION
5 OF THE FARM LETABA DRIFT, REGISTRATION DIVISION LT, LIMPOPO
PROVINCES in extent of 93,5949 hectares held by Deed of Transfer
T72731/2005 and also known as Letaba Drift, Georges Valley 21G,
Georges Valley Road, district of Tzaneen, Limpopo (hereinafter
called
“the property”) is declared to be in unlawful possession
of the property, declared to have no legal right to
occupy the
property and that they currently occupy the property unlawfully, and
further that the amount of R 1 000 000.00
security provided
by the Appellant is sufficient to suspend the alleged lien claimed by
the First and Second Respondents over the
property;
2.3.
That
the First and Second Respondents presently occupying the property,
vacate the property within a period of 30 days from the
date of this
order;
2.4.
That
in the event of the First and Second Respondents presently occupying
the property fail to vacate the property within 30 days
from the date
of this order, the Sheriff of this Court is authorised to, with the
help and assistance of the South African
Police Services if
required, carry out the eviction of the First and Second Respondents
presently occupying the property, who fail
to voluntary vacate the
property within 30 days from the date of this order.
_________________________
E
M MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE
I
agree
__________________________
A
M L PHATUDI
JUDGE
OF HIGH COURT, LIMPOPO DIVISION, POLOKWANE
I
agree
__________________________
M
F KGANYAGO
JUDGE
OF HIGH COURT,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
Heard
on
: 28 April 2017
For
Appellant
:
Adv. J C KLOPPER
Instructed
by
:
DMB Attorneys
c/o
Corrie Nel & Co
For
Respondents
: Adv. P V Z Booysen
Instructed
by
:
Coetzer Attorneys
c/o
Du Toit Swanepoel Steyn & Spruyt
Attorneys