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2009
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[2009] ZAGPJHC 86
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De Freitas De Aguiar v Real People Housing (Pty) Limited (28081/06) [2009] ZAGPJHC 86 (30 March 2009)
SOUTH GAUTENG HIGH
COURT
NOT REPORTABLE
DATE:
30/03/2009
CASE NO:
28081/06
In the matter
between:
DE FREITAS DE
AGUIAR
...................................................................................
Applicant
and
REAL PEOPLE HOUSING
(PTY) LIMITED
…................................................
Respondent
JUDGMENT
BHANA A J: This is
an application for leave to appeal The initial application for leave,
if I may call it that, consisted of a number
of grounds. These can be
summarised under the following broad categories for convenience: The
first is the so-catted locus standi
of the applicant. The second is
the contention that the settlement agreement was invalid. The third
is the issue of the waiver
of a right to demand a guarantee and the
waiver of the right to cancel the agreement.
After the delivery
of the initial application on 19 November 2008, the applicant in the
application for leave to appeal, Mr De Aguiar,
delivered a notice
called "supplementary grounds for leave to appeal". The
thrust of the supplementary grounds is the
contention by Mr de Aguiar
that as a result of the fact that he expended considerable amounts of
money in respect of useful and
necessary improvements to the property
he acquired a lien over the property which entitles him to retain
occupation of the property
pending compensation by the owner of the
property.
At the commencement
of the hearing this morning there was a debate with counsel in
relation to the effect of the supplementary grounds
for leave to
appeal as these did not feature in the main application. I deal
firstly with the question of such grounds as arise
from the
supplementary grounds for leave to appeal.
The supplementary
grounds depend on an application being made in due course to "lead",
as it was called, "further
evidence". In the context of
this matter, that obviously means the delivery of a supplementary
Affidavit.
One would have
expected that the applicant in this application, (Mr de Aguiar) would
have set out fully the basis on which he contends
the evidence which
he intends to introduce would be material to an outcome in due course
if an appeal were to be heard by another
court. One finds however
that the Affidavit put up before me dealing with the supplementary
grounds for leave to appeal is scant
to say the least.
No allegation is set
out by Mr de Aguiar as to when he contends the improvements were made
by him, nor does he set out the capacity
in which he occupied the
property at the relevant time when he made improvements.
In argument there
was a reference to the answering Affidavit where one reads that
improvements were made any his father at a point
obviously when his
father was owner of the property. No mention was made in the
answering affidavit of any improvements made by
him. He however says
in the present application that he also made certain improvements. No
date is given as to when those improvements
were made, nor as 1 have
said, the capacity in which he occupied the property when he made
those improvements.
I would have
expected that in seeking to persuade me that another court could
reasonably find that the applicant has a valid lien,
that sufficient
evidence would have been placed before me. This was not done.
I therefore find
that there is no sufficient basis for me to believe that there is a
reasonable possibility that another court will
find that the
applicant could resist eviction on the basis of his alleged lien
arising out of any useful or necessary improvements
which he would
have made to the property.
Counsel for the
respondent in this application also argued that in any event the
application for eviction arose out of the self-standing
settlement
agreement, I have already found such an agreement to be
self-standing.
I am in agreement
with the submission. The respondent's (that is Real People Housing
(Pty) Limited's) right to seek eviction arises
out of the
self-standing settlement agreement that was concluded. It was
suggested that that agreement was in full and final settlement
of all
disputes between the parties and this clearly appears to be the case.
Therefore I am of
the view that in relation to the application for leave to appeal,
which is dependant on the supplementary grounds,
that there is, (on
the basis of the information placed before me) no reasonable prospect
that another court would find that the
applicant has a valid Hen
enabling him to resist the eviction application.
I turn then to deal
with the initial grounds for leave to appeal. Firstly on the issue of
the locus standi I observe that this issue
was not pleaded by the
present applicant in the answering Affidavit. In any event the
relationship between Real People Housing
(Pty) Limited and Real
Housing Solutions is explained in the replying Affidavit. Furthermore
the settlement agreement that was
concluded was with the respondent
Real People Housing (Pty) Limited, and the applicant himself contends
that the tacit lease agreement
was concluded with the current
respondent.
In argument counsel
for applicant suggested that it was really not a locus standi point
but an authority point. When pressed as
to where the authority of the
respondent had been challenged in the answering Affidavit counsel for
the applicant was not able
to point to anything in the answering
Affidavit to indicate the challenge to authority on the basis which
is now sought to be raised.
I was also informed
by counsel for the applicant this morning that he was not persisting
with the ground set out in paragraph 1.6
of the application for leave
to appeal. In addition I was informed by him that he did not persist
with paragraphs 1.4 or 1.5 of
the application for leave to appeal,
and that those grounds were abandoned.
I then asked counsel
for the applicant what basis was left to seek application for leave
to appeal. I was informed by counsel for
the applicant that the only
basis that would be left would be the suggested lien, in the
supplementary grounds, I have already
dealt with that issue.
For completeness
however. I deal briefly with the other grounds. Insofar as I
understood certain of the grounds to apply to the
contention that the
settlement agreement was invalid, it appears to me that that point
was not taken on the papers, nor was it
raised in argument when the
matter was argued before me. This is not the kind of point which is
purely a law point as it is dependant
on the facts and the point that
Real People Housing (Pty) Limited was not authorised to conclude the
agreement on behalf of the
owner of the premises.
In any event the
annexures to the founding papers suggest that the applicant as
co-subsidiary was authorised to conclude the settlement
agreement.
The point was also clarified in reply.
The further ground
for leave to appeal was based on the question of a waiver of a right
to demand a guarantee, and again this was
not explicitly raised on
the papers and certainly not proved.
To constitute a
waiver obviously the conduct must be explicit and unequivocal. This
cannot be found. However, even if it is found
that
there was a waiver
of right to receive a guarantee there is no suggestion that Clause
1.4 of the settlement agreement was waived.
The same point can be
made in regard to the question of waiver of the right to cancel the
agreement.
In these
circumstances I am not persuaded that any other court could
reasonably find that there was merit in any of the grounds
raised in
the application for leave to appeal and accordingly I dismiss the
application with costs.
BHANA A J
Ex tempore