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2024
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[2024] ZANCHC 56
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Visagie N.O v Jumalo Trading CC (740/2023) [2024] ZANCHC 56 (7 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 740/2023
Reportable:
YES/NO
Circulate
to Judges:
YES/NO
Circulate
to Magistrates:
YES/NO
Circulate
to Regional Magistrates:
YES/NO
In
the matter of:
MARIA
HELENA VISAGIE
N.O.
Applicant
and
JUMALO
TRADING
CC
Respondent
Coram: Lever J
JUDGMENT
Lever
J:
1.
This is an application to evict a former tenant as well as for one
month’s arrear rental in respect of
a certain immovable
property. The claim is based on the right of an owner to vindicate
his/her property.
2.
Originally, the late Mr Visagie was the registered owner of the
immovable property concerned. The relevant
immovable property falls
into the estate of the late Mr Visagie. It is also common cause that
the executor of the late Mr Visagie’s
estate is now the
applicant.
3.
It is common cause that the applicant representing the estate of the
late Mr Visagie is the registered owner
of the immovable property
concerned.
4.
It is also common cause that the respondent is in possession of the
said immovable property and remains in
possession of the said
immovable property.
5.
Although it was previously disputed, it is also now common cause that
a written lease agreement had existed
between the respondent and the
late Mr Visagie.
6.
It is further necessary to point out that as part of the said written
lease agreement the respondent had the
option to purchase the
property concerned. It is common cause that the respondent did not
exercise this option while it was available
to him.
7.
In anticipation of exercising his option in terms of the said lease
agreement and in furtherance of developing
his own or the
respondent’s business, the member of the respondent, on behalf
of the respondent, made certain improvements
on the relevant
property. The said improvements consisted of the installation of a
weigh bridge, fencing and the construction of
a warehouse. The value
of these improvements is claimed by the respondent to be in the order
of two and a half million Rand.
8.
The respondent maintains that certain breaches of the written lease
agreement by the late Mr Visagie prevented
him from exercising this
option. The respondent goes no further than that.
9.
Subsequent to the option expiring and negotiations between the late
Mr Visagie and the member of the respondent,
the late Mr Visagie sold
the business as a going concern which included the relevant immovable
property to another entity. This
other entity is controlled by a
trust and Mr Engelbrecht an attorney of this court represents such
trust. Mr Engelbrecht also represents
the applicant in these
proceedings.
10.
The agreement of sale referred to herein provided that payment was to
be in two tranches. The first payment of two and a half
million Rands
and the balance of eight hundred thousand Rand.
11.
In terms of the said agreement of sale, possession and occupation was
to pass on payment of the first amount due. It is common
cause that
this first amount was paid. The balance has not been paid and the
property has not been transferred into the name of
the purchaser in
the Deeds Registry.
12.
Mr Visagie passed away after the Notice of Motion and founding
affidavit in this matter were filed.
13.
The respondent alleges that it has the right to continue to possess
the property concerned by virtue of an improvement lien.
14.
However, before we can get to consider the merits of the argument
relating to the existence of an improvement lien, the respondent
has
raised certain points
in limine
.
15.
The points
in limine
are as follows: The applicant no longer
has
locus standi
to launch the present application; and there
is an alleged non-joinder that is alleged to be material and fatal to
the present
application. These were the preliminary points that were
argued at the hearing of this matter.
16.
Mr Bester, who appeared for the respondent herein argued that the
sale was a sale of the business and the rights to possession
and
occupation of the property in terms of the relevant agreement of sale
passed to the buyer, being the entity represented by
Mr Engelbrecht.
On that basis Mr Bester argued that the applicant had divested itself
of its
locus standi
by virtue of the provisions of the
agreement of sale. It followed according to Mr Bester that the
applicant no longer had
locus standi
to launch the present
application.
17.
Mr Van
Niekerk SC, who appeared for the applicant, argued that the buyer had
not yet obtained transfer, nor had it obtained cession
of the
registered owners cause of action and on that basis the buyer was not
entitled to sue for ejectment. As authority for that
submission, Mr
Van Niekerk referred me to the case of JADWAT AND MOOLA v SEEDAT
[1]
18.
Mr Van
Niekerk then argued that a buyer of immovable property in eviction
proceedings only had a personal right to obtain
vacua
possessio,
it can only be enforced against the person who sold it the property.
Also, the buyer had no contractual relationship with the respondent
in this matter. Further, in the absence of a real right or a
contractual relationship with the respondent, the buyer had no
locus
standi
to evict the respondent. As authority for these propositions, Mr Van
Niekerk relied on the case of RED STRIPE TRADING 68 CC v KHUMALO
[2]
.
19.
Then Mr Van
Niekerk relied on the case of RED STRIPE TRADING 68 CC v MAHLOMOLA
AND ANOTHER
[3]
, where the court
held:
“
As
a
rei vindicatio
is an inseparable part of the ownership of
land, it cannot be ceded without the property being transferred in
terms of the law,
which in the present case is by registration of
transfer in the deeds registry. It must be stressed, as is made plain
in the case
quoted above, that the
rei vindicatio
is only a
remedy and not a right, it cannot be ceded separately from the right
of ownership.”
20.
Finally, Mr
Van Niekerk relied upon section 16 of the Deeds Registries Act
[4]
,
which provides as follows:
“
Save as otherwise
provided in this Act or in any other law the ownership of land may be
conveyed from one person to another only
by means of a deed of
transfer executed or attested by the registrar, and other real rights
in land may be conveyed from one person
to another only by means of a
deed of cession attested by a notary public and registered by the
registrar: …”
21.
The primary relief sought by the applicant appears from prayer
1 of the Notice of Motion. The said prayer seeks to evict
the
respondent and all others occupying the relevant property through it.
It is clear from the papers that the right claimed is
the right of
the owner to ‘vindicate’ or reclaim possession of the
property he/she owns. The relevant property being
immovable property,
such ‘vindication’ of the right to possess can only be
effected by the registered owner. This much
is clear from the
authorities and legislation cited above.
22.
The sale agreement between the late Visagie and the buyer cannot and
did not change this. The estate of the late Visagie is
still the
registered owner of the property concerned. It is therefore the only
party with the necessary
locus standi
to prosecute the present
application. Thus the contention by the respondent that the applicant
lacks the necessary locus standi
to launch and prosecute this
application by virtue of the said sale agreement cannot stand.
23.
The next point
in limine
is the non-joinder of the purchaser
of the relevant property. Mr Bester, for the respondent, argued that
the purchaser of the relevant
property had a direct interest in the
outcome of the present application. Mr Bester argued that this direct
interest arose from
whether I held the sale of the business including
the immovable property in question to be valid or invalid insofar as
it relates
to the immovable property.
24.
This argument on the non-joinder of the purchaser is in my view
contrived and strained. Firstly, the issue of the validity of
the
sale of the business concerned insofar as it relates to the immovable
property is not a question before me for decision. Secondly,
the
applicant was bringing the application to fulfil its obligation to
the purchaser by virtue of the relevant sale to deliver
possession to
the said purchaser. It is not necessary to join the purchaser to
achieve this objective. Thirdly, it is quite clear
from all of the
circumstances that at all times material to this application the
purchaser had full knowledge of this application
and the purchaser’s
representative was intimately involved in the presentation of the
applicant’s case in this matter.
If necessary, the purchaser
could have joined at any time up to the commencement of argument if
its position was threatened in
any way. To hold otherwise in the
particular circumstances of this case would be to put form over
substance with the risk of merely
running up the costs without any
change to the outcome. That is not something this court is willing to
entertain. In all of the
circumstances of this case, it is not a
necessity to join the purchaser. The non-joinder point also stands to
be dismissed.
25.
The only dispute of fact that might have existed between the parties,
on the papers, was the existence or otherwise of the written
lease
and the associated option to purchase. This dispute was disposed of
when Mr Bester correctly conceded the existence of the
written lease
and the associated option to purchase as well as the fact that the
terms of such agreement are as disclosed in the
said written lease
agreement and the associated option to purchase.
26.
Thus, in determining if the respondent has a
ius retentionis
by way of an improvement lien, it is necessary to examine the terms
of the relevant written lease agreement before considering
the other
requirements of an improvement lien.
27.
There are two clauses in the said lease that need to be read together
to determine what the parties intended with regards to
improvements
on the property, made before the option to purchase was exercised.
The relevant clauses are clause 9.1.2 and clause
27 of the said
agreement.
28.
The relevant portion of clause 9.1.2 of the said agreement reads as
follows:
“
9.1
The tenant shall –
9.1.1 …
9.1.2 not
make any alterations or additions whatsoever to the premises without
the prior written consent of the Landlord.
In the event of the
landlord agreeing to any such alteration or addition to the premises,
the Landlord shall be entitled, on termination
of this Agreement, to
require the Tenant to restore the premises at the Tenant’s
expense to the same condition it was in
prior to such alteration or
addition. On termination of the lease, the Tenant shall be obliged to
remove any/all of the alterations,
additions or improvements at the
Tenant’s cost and shall be obliged to make good any damage
incurred by such removal unless
otherwise agreed in writing with the
Landlord. If the Tenant does not remove all the alterations,
additions or improvements by
the Expiry Date or the date of
termination, then the remaining items shall become the property of
the Landlord who shall be entitled
to remove and make good the
affected areas at the Tenant’s cost or retain such alterations,
additions or improvements without
compensating the Tenant
therefore;”
29. The relevant portion
of clause 27 of the said agreement reads as follows:
“
27.
The Landlord grants the Tenant permission to do improvements on the
property at his own costs prior to exercising his option to purchase.
Should the tenant made (sic) improvements to the property
and does
not exercise the granted option to Purchase, the costs of the
alterations will not be refunded by the Landlord and the
Landlord
reserves the right to demand the property in it (sic) original
condition, also at the cost of the tenant. …”
30.
Having regard to the terms of the clauses quoted above, there is no
possibility of a right of retention whether by way of an
improvement
lien or otherwise.
31.
The requirements for an eviction based on a
rei vindicatio
are:
a) The
applicant is the owner of the land in question;
b) That
the respondent is in possession of such land; and
c)
If a prior
right of possession is conceded, that such right has been validly
terminated.
[5]
32.
The requirement that the applicant is the owner of the land is
established in the papers and in any event, it is common cause.
33.
The requirement that the respondent be in possession of the relevant
property is common cause.
34.
The fact that the month-to-month lease has now been validly
terminated cannot and has not been contested.
35.
Accordingly, the applicant has established the requirements for
exercising vindicatory relief in the circumstances and is entitled
to
evict the respondent as sought in prayer 1 of the Notice of Motion.
36.
The rental due for the month of October 2022 has not been placed in
dispute and in such circumstances, the applicant is entitled
to
judgment in the amount of R22300.00 (twenty-two thousand three
hundred) Rand.
37.
Attorney and client costs are provided for in the agreement and the
applicant is entitled to such costs.
Accordingly,
the following order is made:
1)
The Respondent, and all others occupying on behalf of or through it,
are ordered to vacate the property being
the remaining extent of
portion 5 of farm number 187, situated in the Sol Plaatje
Municipality, and to do so within 10 days from
date of this order
herein.
2)
The Sheriff of this court be authorised and directed, in the event of
the respondent and those occupying through
or on behalf of it,
failing and/or refusing to comply with paragraph 1 of this order, to
enter upon the said property and to eject
and to remove all persons
found to be occupying the property through or on behalf of the
respondent, together with their own as
well as the Respondent’s
belongings, from the said property, and furthermore to place the
property in the possession and
under the control of the Applicant.
3)
The Respondent is ordered to pay the Applicant the sum of R22 300
(twenty-two thousand three hundred)
Rand.
4)
The Respondent is ordered to pay the costs of this application on the
scale as between attorney and client.
Lawrence
Lever
Judge
Northern
Cape Division, Kimberley
REPRESENTATION:
Applicant:
ADV
J VAN NIEKERK (SC)
Instructed
by:
ENGELSMAN
MAGABANE INC.
Respondent:
ADV
E BESTER
Instructed
by:
ADRIAN
B HORWITZ & ASSOCIATES
Date
of Hearing:
31
May 2024
Date
of Judgment:
07
June 2024
[1]
1956 (4) SA 273
(N) at 276C-D.
[2]
(31039/04)
[2005] ZAGPHC 31
(23 MARCH 2005) at para [10].
[3]
[2006] JOL 17294
(W) at para [17].
[4]
Act 47 of 1937.
[5]
LAWSA: 3
RD
Edition: Vol 26(1), para 292.