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[2015] ZAFSHC 246
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Bester v Claasen and Another (6686/2007) [2015] ZAFSHC 246 (5 March 2015)
I
N
THE
HIGH
COURT
OF
SOUTH
AFRI
CA
FREE
STATE DIVISION, BLOEMFONTEI
N
Case
No. : 6686/2007
In
the matter between:-
MICHIEL
DANleL
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 Grabler 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 lnloop, 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
Wilie's Principles
of
South
African
Law
gth
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 ste.ps 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 Grabler
Instructed
by:
Mr JJ Maree
100 Kellner Street
Westdene
Bloemfontein
(JJ Maree/rk/FC1058)