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[2015] ZAGPPHC 321
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Troksie and Another v Liquidator of RSD Construction CC Wilbecar Liquidators CC t/a Bureau Trust Gauteng RSD Construction CC and Others (71322/2010) [2015] ZAGPPHC 321 (8 May 2015)
IN
THEE HlGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NUMBER:
71322/2010
DATE: 8 MAY 2015
REPORTABLE
OF INTEREST TO
OTHER JUDGES
In the matter
between:
G.P.
TROSKIE
.................................................................................................................
First
Applicant
S.J.
TROSKIE
...............................................................................................................
Second
Applicant
and
LIQUIDATOR OF RSD
CONSTRUCTION CC
WILBECAR
LIQUIDATORS CC t/a BUREAU TRUST
GAUTENG RSD
CONSTRUCTION
CC
....................................................................
First
Respondent
REGISTRAR OF
DEEDS
.........................................................................................
Second
Respondent
ABSA BANK
LTD/STANDARD BANK
LTD
..........................................................
Third
Respondent
ROOT X
AUCTIONEERS
........................................................................................
Fourth
Respondent
JUDGMENT
VAN DER BERG AJ
[1] The applicants
(husband and wife) contend that the liquidators of RSD Construction
CC (in liquidation) cannot evict them from
an immovable property by
virtue of a usufruct over the immovable property allegedly granted to
them prior to the close corporation’s
liquidation, and by
virtue of an improvement lien they allegedly exercise over structures
which had been erected on the immovable
property before the
liquidation.
[2] When a public
auction was scheduled for the sale of the immovable property, the
applicants brought the present application,
essentially in order to
pre-empt an eviction application and to procure immunity against
eviction. (The sale did not go ahead.)
[3] The applicants
seek the following relief in the notice of motion:
[3.1] An order
confirming the existence of a usufruct in favour of the applicants
over a portion of the property.
[3.2] An order that
the Registrar of Deeds (who was cited as second respondent but did
not oppose the application) must effect the
registration of such
usufruct against the title deed of the property.
[3.3] An order
confirming the existence of the applicants’ improvement lien
over certain structures erected on the property.
[4] The applicants
also seek certain other ancillary and alternative relief which will
be dealt with later herein.
[5]
The liquidators of the close corporation brought a counterapplication
wherein they seek an order evicting the applicants from
the property.
The applicants resist the counter-application on the basis of the
alleged usufruct and improvement lien referred
to, and in addition
they rely on the provisions of the Prevention of Illegal Eviction
from an Unlawful Occupation of Land Act,
19 of 1998
(“PIE").
[6] Before dealing
with the facts and main issues raised in this application, it is
necessary to get some preliminary issues out
of the way.
PRELIMINARY
ISSUES
[7] There was a
substantive application for condonation for the late filing of the
liquidators’ answering affidavit and the
late bringing of the
counter-application. This application was initially opposed. However,
at the hearing I was informed that the
parties had reached agreement
that condonation was to be granted, and that costs of that
condonation application be costs in the
cause. Insofar as is
necessary, I make such an order.
[8]
The applicants cited a close corporation as the first respondent and
incorrectly alleged that it was the liquidator of RSD Construction
CC
(in liquidation).
1
None of the four duly appointed liquidators was cited. The
liquidators in their answering affidavit raised the incorrect
citation
and the non-joinder of the liquidators as a defence. The
liquidators however in the same breath brought a counter-application
without
bringing an application to be joined to the proceedings. The
applicants then took the point that the counter-application was for
this reason defective. However, all the liquidators had filed
affidavits indicating their opposition to the applicants’
application and in support of the counter-application. At the hearing
the parties informed me that they had agreed that neither
party would
pursue the respective non-joinder points.
[9]
In spite of the agreement, the court must still examine that all
necessary parties are before court, as a non-joinder is an
issue
which the court can raise
mero
motu.
2
[10]
I am satisfied that all parties with an interest in the litigation
have knowledge of the application and abide by the outcome
3
.
The applicants could have cited RSD Construction CC (in liquidation)
as a respondent without citing the individual liquidators
nomino
officio
.
4
The counter-application would then likewise have been brought in the
name of RSD Construction CC (in liquidation). RSD Construction
CC (in
liquidation) is for all intents and purposes before court, and it
will be bound by any order made against it, and the liquidators
have
authorised the bringing of the counterapplication. The reference in
argument, affidavits and this judgment to
“
the
first respondent
”
should
therefore be seen as actually referring to RSD Construction CC (in
liquidation), duly represented by all the duly appointed
liquidators.
[11] I am therefore
satisfied that both the applications in convention and reconvention
can proceed on the merits.
[12] The auctioneer
who was initially charged with having the property sold on public
auction was cited as the fourth respondent.
The first respondent
complained that he was cited incorrectly. As the public auction has
not taken place and is not imminent, there
is no longer any need to
join the auctioneer. The fourth respondent did not oppose the
application. First respondent abandoned
this point.
EARLY HISTORY
[13] The narrative
starts in 1976, some 34 years before the application was launched,
and some 39 years before the application was
argued.
At
that stage the first applicant’s brother, Mr JHW Troskie, was
the registered owner of an immovable property known as Plot
166,
Rietfontein
(“the
property
”
).
The property is about 22 hectares in size.
[14]
In that year an oral agreement
(“the
1976 oral agreement
”
)
was concluded between the first applicant and his brother in terms of
which certain rights over the property were granted in favour
of the
applicants. The first applicant described these rights as a “lifelong
usufruct”.
[15] The applicants,
at their own expense, built certain structures on the property and
extensively improved approximately 8 000m
2
of the
property. These structures include a dwelling house, and the
applicants have lived there since 1978. From 1978 to date the
applicants have also utilised the property for business purposes to
generate an income.
[16] The first
applicant says they did not find it necessary to have the usufruct
registered against the title deed of the property
as he trusted his
brother.
[17] During 2005 Mr
JHW Troskie decided to sell the property and relocate to a smaller
dwelling unit. He then concluded a deed of
sale with RSD Construction
CC in terms of which he sold the property to RSD Construction CC. One
Mr JHW Breedt, also a family member,
was the sole member of the close
corporation.
[18]
On 14 June 2005 RSD Construction CC concluded a written agreement
(“the
2005 written agreement
”
,
or
“
GP6
”,
the
agreement's attachment number to the founding affidavit) with the
applicants, which expressly dealt with the rights granted
to the
applicants by Mr JHW Troskie.
WRITTEN AGREEMENT
AND SUBSEQUENT EVENTS
[19] It is necessary
to quote the agreement in some detail:
“
NADEMAAL
RSD Konstruksie
die
eiendom bekend as Gedeelte 166 (gvg 159) van die Plaas Rietfontein no
485, J. Q. gekoop het by die geregistreerde eienaar synde
Johannes
Hendrik Willem Troskie.
EN NADEMAAL
Gerhard Troskie ‘n woonhuis op vermelde eiendom opgerig het en
retensie uitoefen ten opsigte van die verbetering
tot die eiendom vir
die waarde van sodanige verbeterings.
NOU DERHALWE kom
die party e as volg ooreen:
1
Gerhard Troskie is die eienaar
[sic]
van ‘n
tweede woonhuis en aanverwante verbeterings wat op sy uitsluitlike
koste op ‘n gedeelte van die tweede woonhuis
op die eiendom
,
we Ike woning met
toestemming van J.H. W. Troskie opgerig is.
2 Gerhard Troskie
en/of sy eggenote beskik oor ‘n gebruiksreg van sodanige tweede
woonhuis, verbeteringe en gedeelte van die
eiendom.
3 Die partye kom
ooreen dat die waarde van die tweede woonhuis en verbeteringe soos
bepaal op datum van ondertekening R750 000,00
(SEWE HONDERD EN VYFTIG
DUISEND RAND), beloop.
4 Gerhard Troskie
is bereid om die skikking van sy regte eienaarskap en verblyfregte
van die tweede woonhuis en aanverwante verbeterings
aan RSD
Konstruksie oor te dra en onherroeplik van sy voormelde gebruiksreg
afstand te doen onderworpe aan die volgende voorwaardes:
4.1 Die
vergoedingsbedrag van R750 000,00 (SEWE HONDERD EN VYFTIG DUISEND
RAND) hierbo sal binne ‘n tydperk van 12 (TWAALF)
maande vanaf
datum van oordrag van die eiendom in die naam van RSD Konstruksie
plaasvind.
4.3
G Troskie sal nieteenstaande die bepalings van Klousules 4.1 en 4.2
[sic-there
is no clause 4.2]
hiervan
geregtig wees om onverstoord sodanige tweede woonhuis te bewoon en
die aanvenvante verbeteringe te benut vir ‘n periode
van
maksimum 2 (Twee) jaar bereken met ingang van die datum van
registrasie van die eiendom in die naam van RSD Konstruksie, welke
voortgesette bewoning en gebruik verder daaraan onderworpe is dat:
4.3.1
Geen huurgeld van waiter aard ookal aan RSD Konstruksie
,
J.H.W. Troski
[sic]
of enige opvolger
in titel betaalbaar sal wees nie.
4.3.2
G. Troskie slegs aanspreeklik sal wees vir pro-rata betaling van
water
-
en
elektrisiteitsverbruik ten opsigte van die tweede woonhuis en
verbeteringe soos deur horn geokkupeer.
4.3.3 G. Troskie
sodanige woonhuis en verbeteringe redelikerwys gedurende die
voormelde okkupasie periode in stand sal hou
4.3.4 G. Troskie
oorhoofs toesig sal hou oor die totale eiendom; met dien verstande
dat alle redelike arbeids- en instandhou- dingskoste
wat in die
verband nodig is, vir die rekening van RSD Konstruksie sal wees.
4.3.5 G. Troskie,
by ontruiming van die tweede woonhuis en verbeteringe, sal verseker
dat sy werknemers wat tans op die eiendom
woon, dit insgelyks
ontruim. Sou dit nodig wees om sodanige bewoners en werkers met
regsaksie te verwyder sal sodanige koste wees
vir die rekening van G
Troskie.
4.3.6 Na vermelde
2 (Twee) jaar het Troskie die reg om vermelde verblyftermyn te
verleng vir 1 jaar met skriftelike kennis op dieselfde
terme en
voorwaardes as in paragraaf 4 uiteengesit.
4.4
Indien G.Troskie, in sy uitsluitlïke diskresie om welke rede
ookal mag besluit om die tweede woonhuis en verberteringe,
voor
verstryking van die voormelde 2 (Twee) jaar tydperk te ontruim
,
sal hy verplig
wees om RSD Konstruksie kennis van sodanige ontruiming te gee
minstens 90 (NEGENTIG) dae voor datum van ontruiming.
4.5 G. Troskie
sal in geregtig wees om, binne 12 (TWAALF) maande na registrasie as
gedeeltelike betaling van die vergoedings-bedrag
in klousule 4.1
genoem, eienaarskap te aanvaar en okkupasie te neem of te laat neem,
van ‘n nuwe woonhuis gebou te word in
die Bergtuin Dorpgebied
waarvan RSD Konstruksie en ontwikkel by dien verstande dat:
4.5.1
Die berrekeningsbedrag van sodanige Bergtuin woonhuis, welke woning
plus minus 165-170 vierkante meter groot sal wees, en
welke woonhuis
op dieselfde standard
[sic]
as die huidige
geboude woonhuise in Bergtuin sal voldoen, nie die bedrag van R600
000,00 (SES HONDERD DUISEND RAND), (BTW ingesluit)
sal oorskry nie.
4.5.2 A lie koste
verbonde aan die oordrag van sodanige Bergtuin woonhuis in naam van
G. Troskie vir die rekening van RSD Konstruksie
sal wees.
4.5.3 die R150
000,00 verskil sal betaalbaar wees in soos in paragraaf 4.1
uiteengesit
5
Die partye plaas op rekord dat G. Troskie onaflianklik van J.H. W
Troskie geregtig sal wees om die regte wat in hierdie ooreenkoms
vervat is teenoor CC Konstruksie
[sic-the
agreement does end in mid-sentence] ”
[20]
A mortgage bond in favour of Absa Bank Limited was passed over the
property at some stage. Absa Bank Limited was joined as
the third
respondent but did not oppose the application, although a manager of
the third respondent filed a confirmatory affidavit
to the first
respondent’s answering affidavit indicating that the third
respondent supported the “application instituted
by the
liquidators”.
5
[21] The date when
the sale agreement between Mr JHW Troskie and RSD Construction CC was
concluded does not appear from the papers.
Transfer of the property
into the name of RSD Construction CC took place on 11 July 2005.
LIQUIDATORS’
APPROACH
[22]
The above narrative is based on the applicants’ version which
the liquidators could not dispute.
Mr
van der Merwe SC
informed
me that the liquidators, for practical purposes, accepted that
improvements were made on the property, that some agreement
was
concluded between the first applicant and his brother (without
conceding that a usufruct was granted in terms of that agreement),
and that the agreement “GP6” was concluded.
USUFRUCT: GENERAL
PRINCIPLES
[23]
A usufruct is a personal servitude. A usufruct is a real right in
terms of which the owner of a thing confers on the “usufructuary
” the right to use and enjoy the thing to which the usufruct
relates. It is often constituted over a farm, in which case
the
usufruct will normally extend not only to all buildings, but also to
the livestock, farming equipment and furniture in the
homestead.
6
[24]
Personal servitudes are real rights which cannot be transferred.
7
A personal servitude is constituted in favour of the holder in a
personal capacity and not in favour of the land. A personal servitude
is inseparably attached to the holder of the right and cannot extend
beyond his or her lifetime.
8
[25]
A personal servitude can be created by agreement. A duly executed
agreement to grant a servitude becomes a real right only
when it has
been registered, after which it can be exercised against the whole
world.
9
[26]
Lord De Villiers CJ in
Registrar
of Deeds (Transvaal)
v
The Ferreira Deep
Ltd
1930
AD 169
at 180 said:
"That
personal rights, jura in personam, are not capable of registration is
a truism. The definition of such rights excludes
their registration.
But that does not apply to the class of personal rights which are
known as jura in personam ad rem acquirendam.
As contracts, with few
exceptions, give rise only to personal rights, this class of right
,
although relating
to immovable property, is a personal right until registration
,
when it is
converted into a real right by such registration
.
The same applies
to burdens upon land, encumbrances of immovable property (onera
realia). They are personal until registration,
when they become real
”
[27]
Someone who acquires an unregistered servitude (i.e. a personal right
or a so-called
ius
in personam ad rem acquirendam)
in
terms of an agreement can claim that the counter-party (more often
than not the landowner) should do everything possible to ensure
that
registration take place.
10
[28]
An unregistered personal servitude can be enforced against third
parties who acquire the property with knowledge of the personal
servitude. This is known as the doctrine of notice.
11
[29]
The rights which were allegedly conferred upon the applicants in
terms of the 1976 oral agreement or the 2005 written agreement
have
been described by the applicants as a usufruct. Although these rights
may possibly be more accurately described as
usus
or
habitatio,
I
will accept for purposes hereof that these rights fall within the
definition of a usufruct. Not much in this case turns on this
distinction, because
habitatio
and
usus
are
also personal servitudes which, when registered, would grant the
applicants immunity against eviction.
PARTIES’
ARGUMENTS
[30] On the
assumption that the 1976 oral agreement was valid, much of the oral
argument presented at the hearing revolved around
the interpretation
of “GP6”.
[30.1]
The
applicants
submitted
that
the written agreement showed that RSD Construction CC was aware of
the existing usufruct which Mr JHW Troskie had granted to
the
applicants and that in terms of the doctrine of notice RSD
Construction CC (and subsequently the liquidators) was bound to
recognise this usufruct. It was then further submitted that the
agreement imposed reciprocal obligations on the parties in terms
of
which applicants would abandon their usufruct against payment of R750
000.00, or in exchange for another property. In that RSD
Construction
CC has not performed, the abandonment has not taken place.
[30.2]
The
first
respondent submitted
that
the 1976 oral agreement was invalid in that it did not comply with
the
Alienation of Land Act, 68 of 1981
. The first respondent,
obviously in the alternative, submitted that the applicants had
already abandoned their rights in terms
of the agreement, and that
the parties’ respective obligations in the agreement were not
reciprocal.
[31] After judgment
was reserved, I invited counsel to submit further written heads on
the following issues:
1.1
Whether a usufruct could validly have been granted to the first
applicant in terms of the oral agreement alleged in paragraphs
6.3
and 6.4 of the founding affidavit in the light of
Janse
van Rensbure and Another v Koekemoer and Others
2011
(1) SA 118
(GSJ) and
Felix
en 'n Ander v Nortier NO en Andere
[1996]
3 All SA 143
(SE).
1.2 Whether the
oral usufruct alleged to have been granted to the first applicant
could be enforced against the Closed Corporation
in the light of the
aforementioned authorities.
1.3 Whether any
submissions made by in respect of 1.1 and 1.2 above influence the
parties’ earlier submissions or argument
on the interpretation
of “GP6” to the founding affidavit.
1.4 Whether any
submissions made in respect of 1.1 and 1.2 above influence the
parties' earlier submissions or argument on any other
aspect
(The parties had not
referred to these two authorities in argument.)
[32] Both counsel
accepted the invitation for which I thank them. In the supplementary
submissions it was submitted on behalf of
the applicants that “GP6”
was the source of the usufruct granted to the applicants. I deal
later with this submission.
VALIDITY OF 1976
ORAL AGREEMENT
[33]
In
Felix
v
Nortier
it
was held that the
Alienation of Land Act, 68 of 1981
was also
applicable to servitudes over immovable property. In
Janse
van Rensburg
v
Koekemoer
CJ
Claassen J held that
“
an
oral servitude is unenforceable against the successor in title of the
servient tenement, even though such successor had notice
of the oral
agreement. In such cases the doctrine of notice (
“
kennisleer”)
finds no application
.”
12
The statement in Christie,
The
Law of Contract,
6
th
ed, pi 18, that a usufruct “
probably
”
does
not constitute an interest in land should therefore be reconsidered.
13
[34] No evidence or
submissions were presented why the usufruct granted by Mr JHW Troskie
would not constitute an alienation within
the meaning of the
Alienation of Land Act, 68 of 1981
. I therefore find that the 1976
oral agreement is of no force and effect.
INTERPRETATION OF
WRITTEN AGREEMENT “GP6”
[35]
It would not be unkind to say that the written agreement “GP6”
has been poorly drafted. It records that the first
applicant was the
owner of the dwelling, which is both legally and factually wrong. The
applicants’ rights are not defined
or described, and are simply
referred to as
“
gebruiksreg”.
There
are other patent errors in the document.
[36]
However, despite its shortcomings, the agreement can be interpreted
by applying the principles applicable to the interpretation
of
contracts as enunciated in
Natal
Joint Municipal Pension Fund
v
Endumeni
Municipality
2012
(4) SA 593
(SCA).
14
[37]
The written agreement records that certain rights were granted to the
applicants by Mr JHW Troskie. It then provides that the
applicants
will transfer these rights to RSD Construction CC and abandon waive
(“
afstand te
doen ”)
these
rights, subject to the condition that they receive payment of an
amount of money or another property in exchange.
[38]
Mr van der Merwe
SC
correctly
pointed out in his additional written submissions that the recordal
in paragraphs 2 and 4 is erroneous, because in light
of the
Janse
van Rensburg v Koekemoer
judgment
there was no valid
“
gebruiksreg”
that
could be waived.
[39]
What was granted to the first applicant in terms of “GP6”
was the right to occupy the dwelling for a further two
year period.
After the two year period, the applicants had the right to have
extended their stay (“
verblyf
”)
for
one year by written notice. There is no evidence that such written
notice was given, although the applicants are still in occupation
of
the dwelling.
[40]
The fact that the applicants were granted a right to occupation for a
further fixed period, contradicts any interpretation
that a lifelong
right of
usufruct
,
habitatio,
or
usus
was
created
in
terms of the written document. It was intended that RSD Construction
CC would give a counter-prestation for the applicants’
abandoning their
existing
(and
ultimately invalid) usufruct, and would grant them a right of
occupation for an additional period. It is significant that the
case
which the applicants made out in their founding affidavit corresponds
with this interpretation.
REGISTRATION OF
SERVITUDE AFTER LIQUIDATION
[41] The findings
that the applicants did not acquire a valid usufruct in terms of the
1976 oral agreement or the 2005 written agreement
are dispositive of
the relief they seek in respect of a usufruct. It is however
desirable to deal with another argument raised
by the first
respondent, namely that in terms of insolvency law the registration
of a personal servitude cannot take place after
liquidation.
[42]
Upon the liquidation of a corporation, a
concursus
creditorum
is
instituted. Innes JA described it as follows in
Walker
v Syfret NO
:
15
“
[T]he
hand of the law is laid upon the estate, and at once the rights of
the general body of creditors have to be taken into consideration.
No
transaction can thereafter be entered into with regard to estate
matters by a single creditor to the prejudice of the general
body.
The claim of each creditor must be dealt with as it existed at the
issue of the order. ”
[43]
In
Ward
v Barrett NO and Another NO
1963
(2) SA 546
(A) Steyn CJ said:
16
“
At
[the
date of the
concursus
creditorum],
17
the appellant was entitled to claim registration of the notarial
bond. But a concursus having supervened, she could not bring an
action against the first respondent for specific performance, and the
latter had no authority to accede to any such claim, as the
interest
of other creditors would inevitably have been prejudiced thereby.
The
appellant’s personal risht to the
resistration
of a bond could
,
therefore,
not be converted into
a
jus in rem under a registered bond.
....
The mere
g
rant
and existence of the power to
effect the resistration could
not
and did not change the personal risht into a real one
.
”
(own
emphasis.)
[44]
This principle has been applied to notarial bonds: The holder of a
general notarial bond which falls outside the provisions
of the
Security by Means of Movable Property Act 57 of 1993 does not enjoy a
real right of security in assets subject to the bond.
A perfection
clause can however be enforced at the instance of the bond holder,
whereupon the creditor obtains a real right of
security. After
liquidation or sequestration, the general notarial bond cannot be
perfected. In other words, the personal right
cannot be converted
into a real right after liquidation.
18
[45]
I am mindful that notarial bonds are instruments of security whilst
we are dealing with a personal servitude
in
casu.
In
my view the principle that a personal right cannot be converted into
real right after liquidation is however equally applicable.
One of
the basic characteristics of a real right (as opposed to a personal
right) is the fact that it affords a right of preference
in the event
of insolvency.
19
Should a usufruct now be registered in favour of the applicants, it
would diminish the value of the property to the prejudice of
the
general body of creditors of RSD Construction CC (in liquidation).
[46] There is
another reason why the application to compel registration must fail:
it is based on the enforcement against the liquidators
of either the
1976 oral agreement or the 2005 written agreement, which the
applicants cannot do at this stage.
[47]
A trustee in insolvency, and thus a liquidator of a company or close
corporation in liquidation, is vested with a discretion
whether to
abide by or terminate an executory contract which had been concluded
by the company or close corporation in liquidation
before its
liquidation (save for certain contracts specifically provided for in
the
Insolvency Act, 24 of 1936
). The liquidators cannot be compelled
to render specific performance in terms of a contract which had been
concluded by the company
or close corporation prior to its
liquidation.
20
[48] An illustration
of this principle is the situation where the seller of immovable
property is sequestrated or liquidated after
the conclusion of sale
agreement but the prior to transfer of the immovable property. In
such an instance the trustee or liquidator
may elect not to perform
in terms of the sale agreement, and the purchaser may not demand
transfer of the property but must contend
himself with a concurrent
claim against the insolvent estate for repayment of the amounts
already paid and/or for damages.
21
[49] Accordingly,
even if the 1976 oral agreement and/or the 2005 written agreement
granted a valid usufruct to the applicants,
they will not be able to
compel registration of the servitude after liquidation.
CREATION OF
USUFRUCT BY ACQUISITIVE PRESCRIPTION
[50] Alternative to
the creation of usufruct by agreement, the applicants submit that a
usufruct was created by acquisitive prescription.
It is submitted on
behalf of the applicants that absent any agreement or consent between
the parties, the applicants comply with
the requisites of acquisitive
prescription.
[51]
Section 6
of
the
Prescription Act 68 of 1969
provides:
"...
a person shall
acquire a servitude by prescription if he has openly and as though he
were entitled to do so, exercised the rights
and powers which a
person who has a right to such servitude is entitled to exercise, for
an uninterrupted period of thirty years
or, in the case of a praedial
servitude, for a period which, together with any periods for which
such rights and powers were so
exercised by his predecessors in
title, constitutes an uninterrupted period of thirty years. ”
[52]
In
Pezula Private
Estate (Pty) Ltd v Metelerkamp and Another
2014
(5) SA 37
(SCA) Brand JA held (references to authorities omitted)
:
22
“
In
terms of the
Prescription Act 18 of 1943, the use of the property must have been
nec vi nec clam nec precario for the period of
thirty years. Nec
precario, the absence of a grant on request
,
has been subsumed
into sections 1 and 6 of the current Prescription Act by the
requirement that the potential acquirer of the servitude
must act as
though he or she was entitled to exercise the servitudal right. It
follows that either express or tacit consent would
mean that the
alleged acquirer did not act as if he or she was entitled to exercise
the servitudal right. The notion of a precarium
is based upon the
application by one party for a concession which is granted by the
other party; that other party reserving at
all times the right to
revoke that concession as against the grantee in terms of the
particular conditions to which the grant is
subject. Put differently
,
a precarium is a
legal relationship which exists between parties when one party has
the use of the property belonging to the other
on sufferance
,
by leave and
licence of the other. Precarium has its origin in the fact of the
permission usually being obtained by a prayer”
[53]
The applicants on their version used the property with the consent
and actual agreement of the owner Mr JHW Troskie. The requirement
of
nec precario
was
therefore not met for the period 1978 to 2005. Furthermore, in 2005,
before a period of thirty years had been completed, the
applicants
concluded the agreement with the RSD Construction CC in terms of
which they were granted the express right to use the
property for a
further two years. What happened after that two year period is
unclear, but clearly the requirement of
nec
precario
was
also not met for the period after 2005.
[54] The applicants’
reliance on acquisitive prescription must therefore fail.
MORTGAGE BOND
[55]
I have found that no personal servitude was validly created, and that
no personal servitude can be registered after the liquidation
of RSD
Construction CC. It is thus not necessary to deal with the
interesting questions raised by
Mr
Venter
in
argument, namely whether a mortgagee can under certain circumstances
be subject to the doctrine of notice, and if so, whether
proof of
negligence is sufficient for a reliance on the doctrine.
23
It may be mentioned
en
passant
that
the applicants’ evidence on these issues seemed rather flimsy.
IMPROVEMENT LIEN
[56]
Someone who has a right of retention over an immovable asset
belonging to the insolvent estate is obliged to surrender possession
of the immovable property to the trustee. In terms of
section 47
of
the
Insolvency Act, 24 of 1936
the creditor will not lose his
security by handing over the immovable property to which he has a
right of retention if, when delivering
the property, he notifies the
liquidator of his rights and in due course proves his claim against
the estate.
24
(In terms of the common law the creditor loses his improvement lien
once he relinquishes possession.
25
)
[57] The applicants
will therefore not lose any preference they may have had in respect
of improvements should the liquidators take
possession of the
immovable property.
[58] The applicants
in prayer 1 seek an order declaring that they have a right of
retention over the property. They have no such
right. Any claim for
improvements should be lodged with the liquidators as required in
terms of the insolvency law.
OTHER RELIEF
[59] The applicants
also seek an order that should there be an auction for the sale of
the property, the applicants’ rights
in respect of their
alleged usufruct should be disclosed to all prospective purchasers,
and that such sales be subject to the applicants’
usufruct and
improvement lien. As pointed out in first respondent’s
answering affidavit, the applicants in this manner seek
to procure a
real right in respect of the unregistered usufruct. This they cannot
do. In any event, the applicants have not made
out a case for this
relief.
[60]
The applicants (in the alternative) want an order that the first
respondent must make an election whether to comply with “GP6”,
and that the first respondent must at his election
(“na
sy keusé”)
make
payment for improvements to the applicants as a
quid
pro quo
for
abandoning their rights pertaining to the usufruct and improvements.
[61]
The applicants have not made out a case that the liquidators refused
or neglected to make an election. On the contrary, it
appears that
the liquidators have already made an election. The question as to
whether or not a liquidator has elected to abide
by a particular
executory contract is a question of fact.
26
If the liquidator does not make his decision known within a
reasonable time, it may be assumed that he is not going to perform
in
terms of the contract.
27
It can be accepted from the time lapse and liquidators’
approach to the application that they do not intend to abide by
“GP6”.
[62] The applicants
cannot approach the court to order the liquidators to make payment.
They must utilise the machinery created
in the
Insolvency Act, 24 of
1936
to pursue their claims. There is no evidence that they have
submitted claims, or that the liquidators have rejected their claims.
Needless to say, this is an illiquid claim which cannot be resolved
in motion proceedings. The applicants have also not made out
a case
that an independent valuator should determine the amount of the
improvements (as prayed for in the notice of motion).
COUNTER-APPLICATION
FOR EVICTION
[63] The applicants’
defences to the counter-application for eviction based on usufruct
and enrichment lien stand to be dismissed
for reasons referred to
above.
[64] The applicants
also rely on the provisions of PIE in resisting the
counter-application.
[65]
The first respondent’s notice in terms of
section 4(2)
of PIE
stated that application would be made to evict
“
all
persons occupying the property”
on
3 June 2013 at lOhOO. On 3 June 2013 the matter was postponed
sine
die,
and
not to a specific date. No new notice was served in terms of
section
4(2)
when the matter was re-enrolled for 23 February 2015. The
applicants submitted
in
limine
that
the first respondent therefore did not comply with the peremptory
requirements of
section 4(2).
Mr
van der Merwe SC
conceded
that in the absence of a further notice of the new hearing date being
served the first respondent could not in these proceedings
obtain an
eviction order against any other person apart from the applicants.
Mr
Venter
on
the other hand conceded that as the applicants participated in the
proceedings throughout, and were always represented at all
hearings
and were aware of all the court dates, that the point
in
limine
could
not succeed in respect of the applicants.
[66]
The point
in
limine
therefore
falls away, save that the court cannot make an order for the eviction
against any party apart from the applicants.
[67] On the merits
the applicants rely on sub-sections (7) and (8) of
section 4
of PIE,
which read:
“
(7)
If an unlawful occupier has occupied the land for more than six
months at the time when the proceedings are initiated, a court
may
grant an order for eviction if it is of the opinion that it is just
and equitable to do so, after considering all the relevant
circumstances, including, except where the land is sold in a sale of
execution pursuant to a mortgage, whether land has been made
available or can reasonably be made available by a municipality or
other organ of state or another land owner for the relocation
of the
unlawful occupier, and including the rights and needs of the elderly,
children, disabled persons and households headed by
women.
(8)
If the court is satisfied that all the requirements of this section
have been complied with and that no valid defence has been
raised by
the unlawful occupier, it must grant an order for the eviction of the
unlawful occupier, and determine
-
(a) a just and
equitable date on which the unlawful occupier must vacate the land
under the circumstances; and
(b) the date on
which an eviction order may be carried out if the unlawful occupier
has not vacated the land on the date contemplated
in para (a). ”
[68]
The applicants’ occupation of the property is unlawful. PIE
does not offer them a complete defence to the eviction application,
but serves merely to delay or suspend the exercise of the landowner's
full proprietary rights until a determination has been made
whether
it is just and equitable to evict the unlawful occupier and under
what conditions.
28
An eviction order must therefore be granted, and the only question is
on what terms it should take place.
[69] The property
constitutes the applicants’ primary place of residence. The
first applicant is 62 years old and the second
applicant is 61 year.
The applicants have lived on the property since 1978 and they say
that they have utilised a part of the property
to generate an income.
They say they have no alternative accommodation, or an alternative
source of income, and that the first
applicant has acute heart
problems.
[70]
Parties relying on the provision of PIE to resist an eviction bear an
evidential burden to disclose circumstances relevant
to the eviction
order,
29
and must not set out the grounds on which they rely “
baldly,
vaguely or laconically
’
.
30
[71] The applicants
did not disclose their financial position apart from bald allegations
that they would not be able to afford
alternative housing. The
statement that their means of generating income would disappear
should they be evicted is likewise a bald
allegation without
supporting evidence. In fact, there has been very little evidence
offered about the businesses which the applicants
say they have
conducted on the property for close to four decades.
[72]
From the little evidence that was offered, it is clear that the
applicants
“
do
not belong to the poor and vulnerable class of persons whose
protection was obviously foremost in the Legislature’s mind
when it enacted PIE”
31
[73]
However, it cannot be gainsaid that an eviction order will operate
extremely harshly on the applicants, who are elderly people
who have
lived on the property for about 37 years. They should be granted
sufficient time to relocate and plan for their future
after the
eviction order. The first respondent (through counsel) agreed that
the eviction be postponed for a period of three months
from the
granting of the order. Judging by the leisurely pace at which the
liquidators prosecuted the counter-application for eviction,
there is
no urgency in the winding-up. In my view granting the applicants a
period of nine months to vacate the property will be
just and
equitable in the circumstances. The order will determine a specific
date when execution of the eviction order can take
place as is
required in terms of
section 4(8)(b)
of PIE.
32
CONCLUSION AND
COSTS
[74] There is no
reason why costs should not follow the result, and such costs should
include the costs of senior counsel.
[75] I accordingly
make the following order:
[75.1] The
applicants’ application is dismissed.
[75.2] The
applicants are ordered to vacate the property known as Plot 116
Rietfontein within nine months of the date of this order,
failing
which the sheriff of the court is authorised to remove the applicants
together with their possessions from the said property
on 1 March
2016.
[75.3] The
applicants are to pay the costs of the application and
counter-application, such costs to include the costs of senior
counsel.
VAN DER BERG AJ
Acting Judge of
the High Court
APPEARANCES
For
the Applicants :
Adv.
J.A. Venter
Instructed
by:
Adriaan
Venter Attorneys
For
the Respondent:
Adv.
M.P. van der Merwe SC
Instructed
by:
Tim
du Toit & Co Incorporated
Date
of hearing
:
23 and 24 February 2015
Date
of judgment :
8
May 2015
1
The
description of the first respondent in the heading of the notice of
motion and founding affidavit does not make sense and
is
inconsistent with the citation of the first respondent in the
founding affidavit.
2
Amalgamated Engineering Union v Minister of Labour
1949
(3) SA 637
(A) at 649
3
Wholesale Provision Supplies CC v Exim International CC
1995
(1) SA 150
(T) at 157 H – 158 I
4
Gainsford
NNO
v
Tanzer
Transport
2014
(3) SA 468
(SCA) paragraph [11] to [16], p 473 D - 475 D. Although
the court in that matter dealt with the citation of a company in
liquidation
who engaged in proceedings for the recovery of a debt
owed to the company in liquidation, it should equally applicable
where
relief is sought against a company in liquidation.
5
Absa
Bank Limited was correctly cited as the third respondent in the
founding affidavit, but for some reason the third respondent
is
referred to as
“
Absa
Bank Limited /Standard Bank Limited”
in
the heading of the notice of motion and founding affidavit.
6
Badenhorst,
Pienaar & Mostert
Silberberg
and Schoeman’s The Law of Property
5*
Ed (2006) at 339; CG van der Merwe,
Sakereg
2
nd
Ed (1989), p 508-509
7
Silberbere
and Schoeman’s The Law of Property,
(supra)
at p 338 - 339
8
CG
van der Merwe and MJ de Waal 'Servitudes’ in Joubert, LAWSA
volume 24, 2
nd
the execution debtor (2010), paragraph 579;
Sakereg
(supra),
p 506
9
Willoughby’s
Consolidated Co Ltd
v
Copthall
Stores Ltd
1913
(AD) 267;
Silberberg
and Schoeman’s The Law of Property,
(supra)
at
p 334 - 335
10
Silberberg and Schoeman’s The Law of Property
, (supra)
at p 67-68; AJ van der Walt
“Personal Rights and Limited
Real Rights: An Historical Overview and Analysis of Contemporary
Problems Related to the Registrability
of Rights”
(1992)
55 THRHR 170
at 194
11
Silberberg
and Schoeman’s The Law of Property,
(supra)
at p 85 and at 335
12
Janse van Rensburg v Koekemoer
(supra) at 121 B
13
The
learned author refers to
Cowley
v Hahn
1987
1 SA 440
(E) 445—446, but both
Felix
v Nortier
and
Janse
van Rensburg
v
Koekemoer
held
the judgment in
Cowley
v Hahn
to
be wrong. I am bound by the decision
in
Janse van Rensburg v Koekemoer.
14
Paragraph
[18], at p 603G-604D
15
Walker
v Syfret
1911
AD 141
at 166
16
At
552H-553A
17
This case dealt with an insolvent decreased estate, and there was no
date of liquidation or date of sequestration, but the court
held
that the same principles apply as in the law of insolvency.
18
First Rand Bank v Land and Agricultural Development Bank of
South Africa
2015 (1) SA 38
(SCA) paragraph [31], p 50C-F ;
Contract Forwarding (Pty)
Ltd v Chesterfin (Pty) Ltd and Others
2003
(2) SA 253
(SCA);
Ward v Barrett NO and Another NO (supra)
19
Willis’
Principles of South Africa Law.
9
th
Ed, p 430;
Monica
Gezina Cowan NO and Others
v
Kyalami
Estate Home Owners Association and Others
[2014]
ZASCA 221
(SCA case number 499/2013) (12 December 2014) at paragraph
[9].
20
Bertelsmann
et
al,
Mars
The Law of Insolvency in South Africa
.
9
th
ed, p 222;
Bryant
& Flanagan (Pty) Ltd v Muller and Another NNO
1978
(2) SA 807
(A);
Nedcor
investment Bank v Pretoria Belgrave Hotel (Pty) Ltd
2003
(5) SA 189
(SCA), paragraph [6], p 192E
21
Gordon NO v Standard Merchant Ltd
1983
(3) SA 68
(A) at 90F-H;
Bryant & Flanagan (Pty) Ltd v
Muller and Another NNO (
supra)
at 812H – 813 B;
Glen Anil Finance (Pty) Ltd v Joint
Liquidators , Glen Anil Development Corporation Ltd (in liquidation)
1981 (1) SA 171
(A) at 182 D-H
22
Paragraph [10], page 40D-G
23
United
Building Society Limited and Another NO
v
Du
Plessis
1990
(3) SA 75
(W) is distinguishable, as that case dealt with a
registered usufruct which was expressly made subject to a mortgage
bond.
24
Mars
The Law of Insolvency in South Africa
(
supra),
p 453-454;
Roux
v Van Rensburg NO
1996(4)
SA 271 (A)
25
Silberberg
and Schoeman’s The Law of Property
,
(supra) at p 416
26
Frank
v
Premier
Hangers CC
2008
(3) SA 594
(C), paragraph [18] at 602G
27
Mars
The Law of Insolvency in South Africa
(supraV
p 223;
Tangney
v
Zive’s
Trustees
1961
(1)SA 449 (W) at453B
28
Wormald
NO
v
Kambule
2006
(3) SA 562
(SCA) paragraph [ 15], p 569F-G
29
Ndlovu
v Ngcobo; Bekker and Another
v
Jika
2003
(1) SA 113
(SCA), paragraph [19], p 124E-F
30
Johannesburg
Housing Corporation (Pty) Ltd v Unlawful Occupiers, Newtown Urban
Village
2013
(1) SA 583
(GSJ) paragraph [122], p 614A-C
31
Wormald NO v Kambule
(supra)
paragraph [20], p 571E-F. It is for this reason also not necessary
to have the municipality joined (nor was it contended
by either that
it should be joined):
Premier, Eastern Cape and Another v
Mtshelakana and Others
2011 (5)
SA 640
(ECM), paragraphs [9] to [15], p 645G - 646I
32
Wormald
NO
v
Kambule
(supra)
paragraph [23.2], p 572C.