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[2015] ZAFSHC 50
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Bester v Claasen and Another (6686/2007) [2015] ZAFSHC 50 (5 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case No. : 6686/2007
In the matter
between
MICHIEL DANIëL
BESTER
..............................................................................................
APPLICANT
and
EVERT BAKKES
CLAASEN
....................................................................................
1
st
RESPONDENT
THE SHERIFF OF
THE HIGH COURT
DISTRICT OF
HEILBRON
.....................................................................................
2
nd
RESPONDENT
CORAM:
NAIDOO,
J
JUDGMENT
BY:
NAIDOO,
J
HEARD
ON:
4
DECEMBER 2014
DELIVERED
ON:
5
MARCH 2015
NAIDOO J
[1]
The applicant seeks an order setting aside a warrant of execution,
issued out of this court on 27 September 2012, against his
right,
title and interest derived as a result of a written agreement, as
well as the setting aside of the resultant attachment
of such rights.
He furthermore seeks the setting aside of the sale in execution held
on 5 December 2012, at which such right, title
and interest was sold.
The applicant also seeks an order for costs against the respondent.
The Sheriff of the High Court for the
district Heilbron was joined as
the second respondent and has not opposed this application. It is not
clear whether the applicant
also seeks a costs order against the
second respondent, as he asks for costs of the application against
“
die
respondent”.
Mr
N Snellenburg appeared for the applicant and Mr S Grobler for the
respondent.
[2] The applicant
and first respondent entered into a written agreement on 26 September
2001, in terms of which the applicant sold
to the first respondent a
farm called Inloop, situated in Heilbron in the Free State. Certain
special conditions, in favour of
the applicant, were agreed upon and
included in the agreement. By virtue of such special conditions, the
applicant acquired, inter
alia:
2.1 the right to
occupy the homestead and immediate yard or vicinity thereof, for the
duration of his life;
2.2 the right to the
use of an agreed and identified portion of the property, inter alia,
for the purposes of renting it out to
weekend visitors and/or for
hiring out fishing facilities to outsiders; and
2.3 the right to
keep livestock on the property.
It was agreed that
the applicant would not pay any consideration to the first respondent
for such rights and it was specifically
agreed that the right to
occupation was created only for the applicant and was not
transferable. In return the applicant was obliged
to maintain the
building, yard and the identified portion of the premises (over which
he had rights) in a clean, neat and tidy
condition.
[3] During 2007 a
civil action arose between the applicant and first respondent which,
after it came before the Supreme Court of
Appeal, resulted in
judgment being granted in favour of the first respondent, including
an order for costs against the applicant.
After taxation of the first
respondent’s costs, the applicant failed to pay such costs, as
a result of which, the first respondent
obtained a warrant of
execution against the applicant and attached the latter’s
right, title and interest in the lifelong
occupation right set out
above. A Sale in Execution of such right took place on 5 December
2012, at which the first respondent
bought the right of the
applicant, which he had attached, for an amount of R20 000.00.
[4]
The applicant alleges that the issuing of the warrant of execution
and the resultant sale of his right title and interest in
the rights
I have mentioned above, are unlawful or invalid in that the rights he
enjoyed are of such a personal nature that they
cannot be attached
and sold in execution. Such rights were not transferable, could not
be alienated or inherited by others. He
was not entitled to alienate
or encumber such rights, which were created only for him and would
lapse on his death. The applicant
alleges, therefore, that the
attachment and resultant sale of his rights were void
ab
initio
and
fell to be set aside.
[5] The case of the
first respondent is that there is no legal basis for the assertions
of the applicant with regard to the attachment
and sale of his
rights. His view is that the parties are in agreement that the
applicant held a personal incorporeal right, which
was not registered
against the title deed to the property. The first respondent alleges,
as a result, that the personal right held
by the applicant was never
converted to a real right. It is also his contention that a debtor’s
right, title and interest
in something is capable of being attached
and sold in execution. He was, therefore, entitled to attach such
rights and sell them
in execution.
[6]
The applicant, in his Founding Affidavit, refers to the right he
acquired as an incorporeal personal right (paragraph 17), which
the
first respondent obviously agrees with. In the Heads of Argument
filed on behalf of the applicant, it is submitted that the
rights
conferred on the applicant can be regarded as personal or real rights
and Mr Snellenburg (in the Heads) proceeds to discuss
the test to
determine if it is a real or personal right and also discusses at
length the legal position regarding personal rights
and personal
servitudes with reference to rights such as
habitatio,
usus
and
usufruct.
He
asserted, in respect of the rights acquired in terms of the agreement
between the parties, that the applicant’s lifelong
right of
occupation placed a burden on the
dominium
(in
respect of the property) of the first respondent and as a result was
a common law real right of
habitatio,
alternatively
usus.
The
right to hire out the property to weekend visitors and/or fishing
facilities to outsiders similarly limits the
dominium
of
the first respondent and is therefore a common law real right of
usufruct. The applicant’s right to keep livestock on the
property, which also limits the first respondent’s
dominium,
is
a common law right of
usus.
Mr
Snellenburg further submitted in the applicant’s Heads that the
servitude-creating agreement between the applicant and
first
respondent is enforceable between them as well as against third
parties who had notice or knowledge thereof, as if it were
a
registered personal servitude. These submissions are not reconcilable
with the case of the applicant in the Founding Affidavit
where he
alleges that the right of occupation he acquired under the agreement
with the first respondent is an incorporeal personal
right. It is
trite that such a right is a lesser right than a real right; a
personal right concerns the relationship between the
parties to a
contract, whereas a real right creates an almost direct relationship
between the holder of the right and the property
and is enforceable
against third parties. A personal right affords a claim only against
the particular person who is party to the
agreement and obliges that
person to render a particular performance, the performance itself
being the object of the right
(See
Wille’s Principles of South African Law 9
th
Edition, page 427 and 429)
[7] In my view, the
issue was not whether the right is a real or personal right, as it
appears to me that the applicant accepts
that his right is a personal
right, but one which is of such a personal nature that it cannot be
alienated by him. As a result,
this necessarily means that it can
also not be attached and sold. It was not the appellant’s case
that the parties had intended
to register the rights of the appellant
against the title deed of the property. In fact it appears from the
agreement between the
parties that this was not their intention. It
is also clear from the agreement that certain obligations (namely, to
maintain the
homestead and property in a neat and tidy state) were
specifically placed upon the applicant.
[8]
The issue that this court need concern itself with, therefore, is
whether the applicant’s right was capable of being attached
and
sold in execution. In the agreement, the parties agree that the
applicant’s right of occupation was created only for
the
applicant and could not be transferred. The first respondent alleges
that this provision was intended solely for his benefit
so that the
applicant would not transfer the right to
“
any
unworthy or untoward person”.
Although
the applicant counters that this assertion by the respondent is
opportunistic, in my view this would make sense, as the
applicant
acquired the benefit of the right while the benefit for the first
respondent would be the imposition of the condition
to limit and/or
define the exercise of the personal right. The intention behind
section 66
of the
Deeds Registries Act 47 of 1937
, which provides
that a personal servitude (of usufruct, habitatio or usus) may not be
ceded to anyone other than the owner of the
property, is aimed at
achieving a similar result, namely, to prevent a cession of the
personal right being made by the holder of
the right to a person that
the owner of the property did not approve of.
[9] The right
therefore attaches to the applicant personally and cannot be
transferred, alienated or bequeathed by him to another.
He also
enjoys the use of the fruits of the property in that he is able to
hire out the property and or fishing rights, and keep
livestock,
which rights are intrinsically linked to his right of occupation,
being a personal right enforceable only against the
first respondent.
The latter’s
performance in terms of the agreement entails affording the applicant
unhindered right of occupation and use
of the property as defined in
the agreement. Failure to do so would entitle the applicant to
legally enforce the rights against
him. Such rights, not being
registered against the owner’s (first respondent’s)
title, would make them unenforceable
against third parties. The
applicant’s right to, title and interest in such rights would
make them capable of being attached
and sold.
[10]
It is accepted in South African law that a debtor’s right to,
title and interest in incorporeal things is capable of
being attached
and sold. See
Brummer
v Gorfil Bros Investments (Pty) Ltd en Andere 1999(3) SA 389 (SCA),
and Stratgro Capital SA Ltd v Lombard N.O. and Others
2010(2) SA 530
(SCA).
In
these two cases the debtor failed to pay the costs of the creditor in
legal actions between them. The creditor attached the debtors’
right, title and interest in and to the debtor’s claims against
another and sold same in execution. The court in each case
held that
the creditor was entitled to do so, although in Stratgro, the sale
was set aside because of non-compliance with the Rules
of Court in
the execution process, and not because it was impermissible for the
creditor to attach and sell the right. In the present
case, my view
therefore is that the applicant’s right of occupation is
capable of being attached and sold in execution. The
practical
implication of this would be that the buyer of such a right would be
entitled to that right only for the duration of
the applicant’s
life because the right would be extinguished upon the applicant’s
death.
[11
] The applicant alleged that the purchase by the first respondent of
his right at the sale in execution was improper. He provided
no
substantiation for this assertion. He was well aware of the
attachment and subsequent sale, as proper notice was served on him.
He did not react to the sale. The explanation in his Replying
Affidavit, in reaction to the first respondent’s criticism
that
the current application was brought two years after the sale in
execution, is that he did not have funds to engage in litigation.
It
seems, however, that during the period that the sale in execution was
finalised, he had already engaged the services of an attorney.
No
explanation is given for why steps were not taken, prior to the sale,
to halt or suspend the sale. I do not, in any event, agree
with the
assertion that the attachment of the right, title and interest of the
appellant and the consequent sale were invalid,
unlawful or void
ab
initio,
or
that the first respondent acted improperly in purchasing the right of
the appellant at the sale in execution. The applicant also
seeks the
setting aside of the warrant of execution issued on 27 September
2012. It is not in dispute that the warrant was validly
issued in
terms of the Rules of Court, in pursuance of a taxed order for costs,
which remained unpaid by the applicant. No case
has been made out in
the papers for setting aside of the warrant of execution.
[12] In the
circumstances, I make the following order:
12.1 the application
is dismissed with costs
S. NAIDOO, J
Counsel for
Applicant: Mr N. Snellenburg
Instructed by: Mr JP
Smit
c/o Phatshoane
Henney
15 Markgraaff Street
Bloemfontein
Counsel for
Respondents: Mr S Grobler
Instructed by: Mr JJ
Maree
100 Kellner Street
Westdene
Bloemfontein
(JJ Maree/rk/FC1058)