About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 1001
|
|
Venter and Another v Minister van Openbare Werke and Others (72319/2012) [2016] ZAGPPHC 1001 (27 October 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA, NORTH GAUTENG DIVISION, PRETORIA
CASE
NO: 72319/2012
27/10/2016
Not
Reportable
Not
of interest to other judges
Revised
In
the matter between:
GERHADUS VENTER
1
st
Plaintiff
SAREL VAN DER WALT
2
nd
Plaintiff
and
MINISTER
VAN OPENBARE WERKE
1
st
Defendant
MINISTER
VAN GRONDSAKE
2
nd
Defendant
DIE
KOMMISARIS VAN DIE NOORDWES
3
rd
Defendant
PROVINSIE DIE
REGERING VAN DIE REPUBLIEK VAN SUID-AFRIKA
4
th
Defendant
JUDGMENT
MSIMEKI
J
INTRODUCTION
[1]
This action started as an application. The first plaintiff, in claim
1, seeks a declaratory order that he is entitled to transfer
of three
immovable properties which, together, are referred to as "the
property", from the fourth defendant to the first
plaintiff
(himself) and the registration thereof in his name and that the
defendants be ordered to do whatever will be necessary
to effect such
transfer. The second plaintiff, in the alternative, seeks a
declaratory order that he is entitled to payment for
"noodsaaklike
en nuttige uitgawes en verbeterings" in respect of the three
Immovable properties; that an amount R3 719
646.00 represents
reasonable costs and value of the expenses incurred and improvements
effected on the properties; payment of the
aforesaid amount and
interest thereon at the rate of 15.5% per annum from the date of
judgment to date of payment and costs.
BACKGROUND
FACTS
[2]
The matter, as it was correctly submitted and conceded, has a long
history, the first plaintiff appears to have successfully
applied to
the Government of the day to become caretaker and occupier of the
land ("the property"). The first plaintiff
appears to have
conducted farming activities on the land since 1987. A commission
under the chairmanship of S W McCeath J was set
up to consider the
issues of the land in accordance with the provisions of
Chapter 6
of Act 108 of 1991.
The secretary of the Commission, during 1993,
according to the first plaintiff, issued a general notice regarding
the three properties
and others. S. W McCeath J on 17 December 1993
wrote a letter to the then DeputyMinister of Agriculture and
Land Affairs,
Mr A. T Meyer directing that the first plaintiff be
given the first option to buy Portion 1 of Fritchley 444 Ms, Portion
1 of Alfred
383 Ms and Portion 5 of Eyam 436 Ms. These are the three
immovable properties referred to above. The first plaintiff contends
that
he was duly informed of this decision late in 1993. Additional
land, according to the first plaintiff, would be required to achieve
"ekonomiese eeriheid". The first plaintiff contends that he
accepted the first option. The necessary documents, according
to the
first plaintiff, were signed by the relevant people. The first
defendant, on 2 October 1999, according to the first plaintiff,
made
a written offer which the first plaintiff accepted. On 30 October
1999, in writing, the first plaintiff informed the first
defendant
that he was intending to buy the land. On 29 August 2000 the first
defendant informed the first plaintiff that the value
of the land was
R470 000 00. The first defendant's offer, according to the first
plaintiff, was accepted on 8 June 2001. (See:
Annexure
"M"-lndeks-Pieitstukke). A valid agreement of sale,
according to the plaintiff, came into being. The land is
still
registered in the name of the fourth defendant. On 11 July 2002, and
in the Transvaal Provincial Division under case number
11824/2002,
the first plaintiff brought an application relating to the issues of
the land. The application was opposed. The parties
agreed that the
matter be referred to trial and same was postponed
sine die
and
the costs were reserved. This action arises from the order of the
Court. The defendants defended the action. The matter, ultimately,
serves before me.
[3]
The filed documents, according to the particulars of claim,
seem to reveal a dispute of fact regarding the validity and the
enforceability
of the first plaintiff's rights regarding the transfer
of the immovable properties and the registration thereof in the name
of
the first plaintiff.
[4]
Advocate M. Rip SC and Advocate S. Maritz SC and
Advocate Mohlamonyane appeared for the plaintiffs and the
defendants
respectively when the matter was argued.
[5]
The court, at the commencement of the hearing, was informed that the
first plaintiff, who was said to be destitute, was no longer
involved
in the matter. Effectively, the second plaintiff and the defendants
are now the parties in the matter.
[6]
On 27 August 201.4 the parties agreed to settle the matter
between the second plaintiff and the defendants. Their agreement
became
an order of the Court. The Order which constitutes pages 115
and 116 of lndeks-Kennisgewings reads:
"1.
THAT the merits and quantum in respect of the Second Plaintiffs claim
be separated;
2.
THAT the First and Fourth Defendants accept liability for payment in
respect of the necessary and useful improvements that ·the
Second Plaintiff effected on the immovable property referred to in
Paragraph 54.1 of the Particulars of Claim;
3.
THAT the Defendants, jointly and severally, shall pay the trial costs
for today;
4.
THAT the remaining issues relating to quantum be postponed sine die."
[7]
Regard being had to Ledwaba DJP's order, it becomes clear that the
issues have narrowed.
[8]
On 26 November 2015 and at law Chambers, High Court Pretoria, the
parties held a pre-trial conference the minutes of which form
pages
112 to 114 of the papers (lndeks-Kennisgewings). Paragraphs 5, 6 and
7 of the minutes read:
"5.
The
parties agree that the average amount of their relevant expert's
valuation be regarded
as
the reasonable value of the
reasonable and necessary and useful improvements that second
Plaintiff effected on the immovable property referred to in paragraph
54.1 of the particulars of claim, namely R2610
000. 00.
6.
The Plaintiff undertook to get his expert only for purposes of
a
possible settlement on quantum and without prejudice of rights to
compile
a
fair and reasonable valuation of the rent value of
the property over the year 2001-2015.
7.
The Defendant confirms that the land claim over the farm is dormant
and the second Defendants closed their file."
[9]
On 22 January 2001 the Director-General, Department of public works,
Republic of South Africa, wrote to Lawrence De Jager, in
response to
their letter which had been addressed to the Department, and said:
"Please
be advise (sic)· that Portion 1 of the Farm Alfred 383
MS
and Portion
5
of the farm Eyam 436
MS
are, still
subject to
a
restitution claim".
Paragraph
8.7 above seems to deal with the issue of the restitution
claim.
[10]
There is now no issue regarding liability for payment of the
necessary and useful improvements that the second plaintiff effected
on the immovable property referred to in paragraph 54.1 of the
Particulars of Claim. The first and the fourth defendants have
accepted such liability. The first and fourth defendants are
responsible, jointly and severally, for paying the trial costs of 27
August 2014.
[11]
The parties agreed on 26 November 2015 that the average amount of
their relevant experts' valuations would be regarded as the
reasonable value of the reasonable, necessary and useful improvements
that the second plaintiff effected on the immovable property
referred
to in paragraph 54.1 of the Particulars of Claim. Such amount is R 2
610 000 00.
[12]
The land claim over the property no longer appears to be an issue.
This is clarified by paragraph 7 of the minutes of the pre-trial
conference of 26 November 2015.
THE
ISSUE
[13]
The second plaintiff holds the view that the full amount of R 2610
000 00 should be paid to him while the defendants are of
the view
that an amount of R 1 390 000 00 representing the rental for the
period that the second plaintiff occupied the property
should be
deducted from the R 2 610 000 00 which the second plaintiff should
receive. The issue to be determined is whether such
deduction should
be made. The second plaintiff contends that such deduction should not
be made while the defendants insist that
the deduction be made. This
indeed, is a legal question which the Court is called upon to
resolve. On 12 November 2001, the first
and second plaintiffs
concluded a written agreement in terms of which the second plaintiff
purchased the property from the first
plaintiff. The second plaintiff
is said to have taken possession of the property towards the end of
2001. He is still in possession
of the property. Their agreement was
conditional in that the property first had to be transferred to the
first plaintiff who would
in turn transfer the property to the second
plaintiff.
[14]
The property which is still registered in the name of the fourth
defendant has not been transferred to the first plaintiff.
As shown
above, the first plaintiff brought an application which was later
turned into an action seeking such transfer. The first
plaintiff, is
said to be destitute and appears to have abandoned the action. In the
meantime, the second plaintiff after taking
possession of the
property effected some improvements on it. These are the improvements
which the second plaintiff sued for in
the alternative claim which is
claim 2.
[15]
It is submitted on behalf of the second plaintiff that the second
plaintiff reasonably believed that he possessed the property
with a
view to becoming the owner thereof. The agreement between the
plaintiffs attests to that.
[16]
The papers do not reveal that a lease agreement was concluded between
the parties.' The Court has neither been told of the
existence of a
lease either between the first plaintiff and the defendants nor
between the plaintiffs. There is clearly no lease
agreement between
the second plaintiff and the fourth defendant or any of the
defendants for that matter. Nothing has been said
about this either
in the papers or in argument.
[17]
What the court has been told in argument by Mr Maritz is that the
second plaintiff occupied the property for approximately
15 years
with no hope of becoming the owner thereof. What is also clear is
that nothing more was said about this aspect by Mr Maritz.
The
written agreement between the plaintiffs clearly gives one the idea
that the second plaintiff wanted nothing else but to become
the owner
of the property. He even effected the improvements which are now the
subject-matter of claim 2. The first and the fourth
defendants have
conceded that the second plaintiff should indeed, be compensated for
the improvements that he has effected on the
property.
[18]
The basis on which the second plaintiff has been possessing and
occupying the property since approximately 2002 has not been
disclosed by the first and fourth defendants. The second plaintiff's
version must be correct especially if regard is had to the
written
agreement between the plaintiffs.
[19]
The Court was informed that money had changed hands between the first
plaintiff and the State and between the plaintiffs. Upon
enquiry by
the Court, as to what could have become of the money, the Court was
informed by Mr Rip that the first plaintiff had
become destitute.
[20]
Mr Rip submitted that the second plaintiff's belief is central and
key to the determination of the issue that faces the Court
This
submission, in my view, has merit. The second plaintiff, indeed,
bought the property in order to become its owner. The agreement
that
the two plaintiffs concluded.in respect of the property bolsters the
second plaintiff's case. He spent a considerable amount
when he
improved the property which, according to him, was going to become
his. I do not think that this can be gainsaid.
[21]
Mr Maritz referred the Court to the matter of
Pheiffer v Van Wyk
and Others
2015 (5) SA 464
(SCA)
to support his submission that
the second plaintiff ought to pay reasonable rental for his
occupation of the property.
[22]
Mr Rip .submitted that the
Pheiffer case
(supra)
did
not support the defendants' case. He further submitted that the
Pheiffer case
did not deal with the deduction which the Court
was asked to deal with. Of course this submission is correct.
[23]
If anything, Mr Rip's submission proceeded, the
Pheiffer case
merely confirms the principle set out in
Rademeyer and Others
v Rademeyer and Others
1967 (2) SA 702
(C)
. The principle also
comes out in
Liebenberg v Liebenberg
1971 (1) SA 878
(C)
the
matter which Mr Rip referred the court to.
[24]
The
Pheiffer matter
(supra)
was an appeal in which a
High Court order had substituted the appellant's improvement
lien
(enrichment
lien)
with a guarantee by the prospective
purchaser of the property concerned. The defendant, in the appeal,
challenged the adequacy of
the substituted security. The case,
indeed, does not help the defendants.
[25]
In the
Rademeyer
case
(supra),
the
plaintiffs had claimed from the defendants an amount which
represented the costs of effecting useful improvements on a farm
which the parties owned jointly in undivided shares. The plaintiffs
held the view that the farm had to be sold as it would not
be divided
beneficially amongst the many beneficiaries. The plaintiffs had each
occupied a portion of the farm and had effected
many useful
improvements on it. The defendants requested certain further
particulars. The replies did not satisfy the defendants
and this
resulted in an 'application by the defendants for further and
better particulars. The plaintiffs opposed the application.
The court
held that the plaintiffs were only entitled to their expenses less
the gathered fruits and that they had to supply the
defendants
"with
particulars setting out what
fruits
they had
obtained from the property".
They,
according to the court, did not have
"to
give particulars of fruits derived from improvements effected by
them".
The
Court held that the defendants were not entitled to the particulars
they had requested "as the value of occupation was
not part of
the fruits to be deducted from expenses" and
"that
the plaintiffs did not have to bring into account the value of their
occupation when reckoning
the
amount of their claim for improvements".
(Rademeyer
and Others
(supra)
at
702 B-E).
[26]
Van Zyl J at 711 G-H said:
"It
is also necessary not to confuse the matters that should be taken
into account when dealing with a bona fide possessor
who thinks he is
owner and one who thinks he is occupier. The bona fide possessor who
thinks he is owner does not envisage that
he could be called upon to
pay for his occupation: he occupies as owner. The bona fide occupier
generally envisages that he will
be called upon to pay his
occupation".
At
711H the court said:
“…
It
seems to me that it is not in every case that a bona fide occupier
can be said by his mere occupation to have been enriched to
an extent
that can be recovered by the owner''.
[27]
In the'
Liebenberg matter
(supra), the appellant claimed rent
from the respondent based on a tacit lease. The Court found that the
appellant failed to prove
the agreement. The appellant, on appeal,
contended that she was entitled to the rent based on a
condictio.
The Court held that the action had been based on a tacit lease.
To allow the appellant to raise the aspect of a
condictio
or
enrichment would result in prejudice on the part of the respondent.
[28]
The
Rademeyer matter
(supra), in my view, seems to support the
submission that Mr Rip made on behalf of the second plaintiff,
namely, that the amount
of R 1 390 000 00 which is said to represent
rental which the second plaintiff is liable for, for occupying the
property should
not be deducted from the R 2 610 000 00 which the
parties agree he should be paid for the necessary and useful
improvements that
he effected on the property.
[29]
The defendants are well within their rights to sue the second
plaintiff for rental, which, according to them amounts to R 1
390 000
00. The defendants, in my view, are not entitled to any deduction
based on the current papers. The second plaintiff, in
my view, is
entitled to full payment of the amount of R 2 610 000 00. The second
plaintiff's claim for payment of the aforesaid
amount, in my view,
should succeed.
ORDER
[30]
I, in the result, make the following order:
1.
Judgment in favour of the second plaintiff, against the first and
the fourth defendants jointly and severally, the one paying the
other
to be absolved, is granted for payment by the first and fourth
defendants to the second plaintiff of an amount of R 2 610
000 00.
2.
The first and the fourth defendants, jointly and severally,
the one paying the other to be absolved are ordered to pay Interest
in
the aforesaid amount of R 2 610 000 00 at the rate of 15.5%
per annum from the date of judgment to date of payment.
3.
The first and the fourth defendants, jointly and severally,
the one paying the other to be absolved, are ordered to pay the
reserved
costs of the application in terms of which the matter was
referred to trial together with the trial costs of 10 March 2016.
_________________
M.W.
MSIMEKI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION OF THE HIGH COURT,
PRETORIA